United States v. Hunt

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________

No. ACM S32506
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UNITED STATES
Appellee
v.
Jordan K. HUNT
Senior Airman (E-4), U.S. Air Force, Appellant
________________________

Appeal from the United States Air Force Trial Judiciary
Decided 11 July 2019
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Military Judge: Andrew Kalavanos.
Approved sentence: Bad-conduct discharge, confinement for 3 months,
and reduction to E-1. Sentence adjudged 19 December 2017 by SpCM
convened at Seymour Johnson Air Force Base, North Carolina.
For Appellant: Major Jarett F. Merk, USAF.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Captain
Zachary T. West, USAF; Mary Ellen Payne, Esquire.
Before MAYBERRY, MINK, and LEWIS, Appellate Military Judges.
Judge LEWIS delivered the opinion of the court, in which Chief Judge
MAYBERRY and Senior Judge MINK joined.
________________________

This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 18.4.
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 United States v. Hunt, No. ACM S32506

LEWIS, Judge:
A military judge convicted Appellant, contrary to his pleas, of two
specifications of wrongful distribution of marijuana, 1 in violation of Article
112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a. 2 The
military judge sentenced Appellant to a bad-conduct discharge, confinement
for three months, and reduction to the grade of E-1. The convening authority
approved the adjudged sentence.
Appellant raises three issues on appeal: (1) whether the military judge
erred when he did not suppress the forensically extracted contents of
Appellant’s cell phone; (2) whether the military judge abused his discretion by
admitting a Universal Forensic Extraction Device (UFED) report from the
search of Appellant’s cell phone; and (3) whether the evidence is legally and
factually sufficient to prove Appellant distributed marijuana. We find no
prejudicial error and we affirm the findings and sentence.

I. BACKGROUND
In March 2017, Appellant invited A1C TM to accompany him to a comedy
show in Raleigh, North Carolina. Appellant told A1C TM that he was going to
get marijuana before the trip and that he planned to distribute the marijuana
to two of his friends, A1C LH and JF.
Unbeknownst to Appellant, A1C TM was a confidential informant for the
Air Force Office of Special Investigations (AFOSI). A1C TM previously told
AFOSI that she thought Appellant may be involved with illegal drugs because
about a month earlier she noticed he smelled like marijuana. At AFOSI’s
request, A1C TM subsequently developed a friendship with Appellant and
offered to be his designated driver on the trip to Raleigh.
Prior to the trip, AFOSI agents fitted A1C TM’s vehicle with recording
equipment. At trial, the Prosecution admitted several video clips obtained from

1 The military judge announced findings of guilt to both specifications but entered no
finding as to the charge as required by Rule for Courts-Martial (R.C.M.) 918(a)(2) and
922(c). See Manual for Courts-Martial, United States (2016 ed.) (MCM), pt. II. Appel-
lant does not raise and we do not find material prejudice from this error. Article 59(a),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 859(a) (2016); see also R.C.M.
918(a)(2), Discussion (where there are two or more specifications under one charge,
conviction of any of those specifications requires a finding of guilty of the corresponding
charge).
2All references in this opinion to the UCMJ, Rules for Courts-Martial, and Military
Rules of Evidence are found in the MCM (2016 ed.).

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the installed recording device. During her testimony, A1C TM further
explained the video clips. Together, the clips and her testimony indicate (1)
Appellant told A1C TM that they would be transporting marijuana; (2) the two
debated where the marijuana would be placed in the car, and (3) Appellant
explained, in detail, how he obtained the marijuana.
On the trip, A1C TM drove Appellant to the Crabtree Valley Mall so they
could meet Appellant’s friends inside the Forever 21 store. Upon arrival at the
mall, Appellant and A1C TM debated whether to take the marijuana inside or
leave it in the car. Eventually, Appellant decided to take the marijuana with
him and the two entered the mall. Video footage from Forever 21, admitted
into evidence, depicted Appellant and A1C TM by the dressing rooms meeting
one male and two females. A1C TM identified the male as A1C LH and the two
females as JF and JF’s mother. A1C TM testified that she saw Appellant
transfer the marijuana to JF’s mother when he hugged her.
Upon returning to the car, A1C TM recorded a Snapchat video of herself
and Appellant on her phone. AFOSI’s recording equipment captured the audio
of her Snapchat video. In it, A1C TM announced “this kid almost got me kicked
out of the military because he likes to do drug deals in Forever 21.” As A1C TM
added a caption to the Snapchat video stating that she was an accomplice,
Appellant looked at her phone and pointed out “that is not even how you spell
accomplice.”
Six days after the comedy show, Appellant met A1C TM in her car at the
Gold’s Gym parking lot in Goldsboro, North Carolina and sold her marijuana.
As before, Appellant did not know that A1C TM was acting at AFOSI’s behest.
A1C TM received $60.00 from AFOSI and used it to buy the marijuana from
Appellant. The sale was captured on the AFOSI video equipment in A1C TM’s
vehicle. Shortly after the transaction, Special Agent (SA) PM from AFOSI
retrieved the marijuana from A1C TM’s center console where Appellant placed
it. Forensic testing confirmed the substance was marijuana and that it weighed
approximately three grams.
Approximately five weeks later, Appellant was brought to AFOSI for a
subject interview. After an Article 31 rights advisement for distribution of
drugs, Appellant initially waived his right to counsel and his right to remain
silent and agreed to answer questions. Appellant admitted going to the
Crabtree Valley Mall but insisted he had never sold drugs in his life. Appellant
ultimately requested counsel during the interview with AFOSI.
The same day as the interview, AFOSI agents obtained search
authorization for Appellant’s cell phone. Consistent with AFOSI’s practice for
cell phones at the time, the military magistrate also ordered Appellant to
unlock the cell phone via passcode or biometrics. When Appellant was

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presented with the military magistrate’s order, he unlocked his phone.
Appellant did not consent to unlock his phone and only did so after reviewing
the order. SA PM could not recall whether Appellant unlocked the phone via
passcode or biometrics. SA PM seized the phone once Appellant unlocked it.

II. DISCUSSION
A. Motion to Suppress
1. Additional Background
a. The Legal Landscape
At the time of the search of Appellant’s phone, the United States Court of
Appeals for the Armed Forces (CAAF) had not decided United States v. Mitch-
ell, 76 M.J. 413 (C.A.A.F. 2017). At the time of Appellant’s trial, however,
Mitchell had been decided and was referenced in varying degrees by the parties
and the military judge during motion practice. To best understand the military
judge’s ruling and the challenges to it on appeal, we describe in detail what
occurred during motion practice. We note this case involves the intersection of
multiple constitutional rights, overlapping statutory protection under Article
31, UCMJ, 10 U.S.C. § 831, and a discussion of exceptions to the exclusionary
rule in various military rules of evidence. While we acknowledge the complex-
ity of these legal issues presented, counsel faced with a similar legal landscape
in the future would be well served by avoiding the pitfalls we highlight from
this case. While the Government’s position on appeal and the facts of Appel-
lant’s case allow us to complete appellate review without remanding the case
to the convening authority for a post-trial evidentiary hearing, such a result
may not hold true in future cases. See United States v. Dubay, 37 C.M.R. 411,
413 (C.M.A 1967).
b. Motion Practice at Trial
Appellant filed a timely written motion to suppress his cell phone and all
evidence derived from an “unlawful search.” At first blush, this may appear to
be a classic Fourth Amendment 3 suppression motion, in which the good faith
exception under Mil. R. Evid. 311(c)(3) might apply. Similarly, the military
judge would have to determine whether appreciable deterrence of future un-
lawful searches or seizures and the benefits of such deterrence outweigh the
costs to the justice system before applying the exclusionary rule. Mil. R. Evid.
311(c)(3). But on closer examination, the motion to suppress referenced Appel-
lant being ordered to unlock his phone and argued “[t]he search of SrA Hunt’s

3 U.S. CONST. amend. IV.

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phone must be suppressed. Cf. United States v. Mitchell . . . .” Mitchell involves
the Fifth Amendment 4 right to counsel and the application of the plain lan-
guage of Mil. R. Evid. 305(c)(2) which requires suppression after a violation of
the Fifth Amendment right to counsel.
During oral argument, trial defense counsel attempted to explain his cita-
tion to Mitchell:
Now I have cited, I agree I have cited to Mitchell but I want to
be clear that had a (cf) in front there the point being is I don’t
want to overlook, Mitchell’s not directly on point 5 I don’t think
at least the way I read Mitchell but I certainly think that Mitch-
ell is--has got a lot of discussion there that informs you and how
to resolve this issue and that’s why I put the (cf) rather than [see
cite] . . ., in other words completely relying on it as authority.
Trial defense counsel concluded the search was unreasonable because the or-
der from the military magistrate to unlock the phone was “. . . an unlawful
order because [you are] ordering him to violate his Fifth Amendment right 6
and Article 31.” Appellant did not testify for a limited purpose during the sup-
pression hearing. See Mil. R. Evid. 304(f)(3); Mil. R. Evid. 311(d)(6).
The Government opposed the motion in writing and presented evidence
which included the search authorization, the accompanying affidavit, and the
order from the military magistrate for Appellant to unlock his phone via
passcode or biometrics. 7 The trial counsel’s written motion response summa-
rized Mitchell and concluded “even assuming that the Government violated
[Appellant’s Fifth] Amendment rights when he was ordered to unlock his
phone after invoking his right to counsel, the inevitable discovery exception

4 U.S. CONST. amend. V.
5 Trial defense counsel did not explain why Mitchell was not on point and the military
judge did not inquire further. We recognize the parties and military judge may have
clearly understood trial defense counsel’s argument on why Mitchell was not on point.
Whatever their understanding may have been, it is not contained in the record of trial.
6 Trial defense counsel did not specify whether it was the Fifth Amendment right to
counsel, the Fifth Amendment right against self-incrimination, or both that the Gov-
ernment violated. The military judge did not require trial defense counsel to specify
further the grounds for the suppression motion. See Mil. R. Evid. 304(f)(4).
7 Trial counsel did not request the military judge consider the video recording of Ap-
pellant’s interview with AFOSI as evidence during motion practice. The Government
later offered the interview as Prosecution Exhibit 10 during its case-in-chief at which
point the military judge admitted a portion of the video into evidence.

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applies.” 8 The trial counsel also posited that Mil. R. Evid. 311(c)(3)’s good faith
exception applied as Mitchell was decided after the AFOSI search. Finally, the
trial counsel noted suppression was not appropriate under Mil. R. Evid.
311(a)(3) as the exclusion would not result in appreciable deterrence of future
unlawful searches and seizures and the benefits of such deterrence did not out-
weigh the costs to the justice system.
The Government called two witnesses, A1C TM and SA PM, to testify dur-
ing the motion to suppress hearing. A1C TM testified that she exchanged text
messages with Appellant while working as an informant, that she showed all
the texts to AFOSI, and that she sent AFOSI screenshots of some of the texts. 9
SA PM testified regarding the steps he would have taken with A1C TM and
her phone if Appellant refused to unlock his phone. SA PM did not testify that
he would have sent Appellant’s phone for forensic testing in an attempt to ac-
cess its contents without Appellant’s passcode or biometrics.
The military judge made findings of fact regarding Appellant’s texts with
A1C TM. We adopt them as they are not clearly erroneous.
[A1C TM] provided copies of text[s] between her and [Appellant]
related to the charged misconduct to [AFOSI] but did not provide
all of the texts. If [Appellant] had refused to unlock the phone
[AFOSI] would have requested from [A1C TM] that she allow
access to her phone to retrieve the texts between herself and [Ap-
pellant] relevant to the underlying charges. Had [AFOSI] re-
quested, [A1C TM] would have allowed [AFOSI] access to her
phone to retrieve all text messages located on her phone between
herself and [Appellant]. Had [A1C TM] refused, [AFOSI] would
have sought authorization to seize and search [A1C TM’s] phone.
Prior to [A1C TM] exchanging her cell phone in August 2017, the

8 The Prosecution and military judge relied on Nix v. Williams, 467 U.S. 431, 444
(1984), in deciding inevitable discovery applied. We agree that Williams applies to Ap-
pellant’s case even though it involved the Sixth Amendment right to counsel, U.S.
CONST. amend VI, which does not apply to Appellant as charges had not been preferred
when AFOSI interviewed him. In a 1986 amendment to Mil. R. Evid. 304(b)(2), the
inevitable discovery exception was added for evidence that would have been obtained
even if the involuntary statement of an accused had not been made. This rule was
“based on” Williams. MCM, App. 22, at A22-11. This “inevitable discovery” exception
is now in Mil. R. Evid. 304(b)(3).
9The screenshots of the text messages that AFOSI received from A1C TM are not in
the record of trial. However, both A1C TM and SA PM testified about them during
motion practice.

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text messages at issue between [Appellant] and [A1C TM] were
located on [A1C TM’s] phone.
The military judge delivered his ruling orally on the record and supple-
mented it in writing prior to authentication of the record of trial. The military
judge denied the motion to suppress concluding “[a]ssuming that the Govern-
ment violated [Appellant’s Fifth] Amendment rights when he was ordered to
unlock his phone after invoking his right to counsel, the inevitable discovery
exception applies.” Additionally, the military judge concluded that Mil. R. Evid.
311(c)(3)’s good faith exception applied and that, given the timing of the Mitch-
ell opinion, suppression would not result in appreciable deterrence of future
unlawful searches or seizures and the benefits of such deterrence did not out-
weigh the costs to the justice system. In his written ruling, the military judge,
for the first time, concluded “upon further reflection of the evidence presented
at the Article 39(a) motions hearing, this Court now concludes that due to the
high likelihood [Defense Computer Forensics Laboratory (DCFL)] would have
been able to access the text messages on the accused’s phone, all of the text
messages would have been inevitably discovered.” The military judge’s oral
ruling did not contain this conclusion about DCFL’s capabilities.
c. Appellate Positions
Before this court, Appellant argues the military judge abused his discretion
by: (1) failing to follow Mitchell; (2) not applying Mil. R. Evid. 304(a)’s general
rule that evidence derived from an involuntary statement is inadmissible; (3)
not applying Mil. R. Evid. 305(c)(2)’s specific rule for suppressing evidence de-
rived from a custodial interrogation after a request for counsel; (4) applying
various provisions of Mil. R. Evid. 311(c) which are exceptions to unlawful
searches and seizures under the Fourth Amendment; (5) determining the con-
tents of Appellant’s phone would have been discovered by DCFL; (6) determin-
ing the text messages between Appellant and anyone other than A1C TM
would have been inevitably discovered; and (7) finding the Government would
have inevitably discovered text messages between Appellant and A1C TM. 10
Appellant claims the Government cannot demonstrate the Fifth Amendment
violation was harmless beyond a reasonable doubt. We will address Appellant’s
claims in turn.
On appeal, the Government assumes that if the military magistrate’s order
violated Appellant’s Fifth Amendment rights, then inevitable discovery never-

10Appellant concedes that the screenshots of text messages between A1C TM and Ap-
pellant that were already in AFOSI’s possession would “likely” meet the inevitable
discovery exception.

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theless applied because when the illegality occurred, AFOSI possessed evi-
dence or leads that would have inevitably and lawfully led to the discovery of
the same text messages between A1C TM and Appellant. The Government
agrees with Appellant that “Mil. R. Evid. 311 does not apply” to Fifth Amend-
ment violations, but argues that Mil. R. Evid. 304(b)(3)’s inevitable discovery
exception is analogous to Mil. R. Evid. 311(c)(2)’s inevitable discovery excep-
tion. Finally, the Government asserts that even if we find the military judge
abused his discretion, the admission of the UFED report was harmless beyond
a reasonable doubt.
We find the military judge did not abuse his discretion by admitting the
substance of the text messages between Appellant and A1C TM under inevita-
ble discovery. We find he abused his discretion when he determined DCFL
would have discovered the full contents of Appellant’s phone. However, we find
the admission of the UFED report generally and the specific text messages
between Appellant and individuals other than A1C TM to be harmless beyond
a reasonable doubt.
2. Law
We review a military judge’s ruling on a motion to suppress for an abuse of
discretion, viewing the evidence in the light most favorable to the prevailing
party. United States v. Hoffman, 75 M.J. 120, 124 (C.A.A.F. 2016) (citing
United States v. Keefauver, 74 M.J. 230, 233 (C.A.A.F. 2015)). Under this
standard, we uphold the military judge’s findings of fact unless they are clearly
erroneous or unsupported by the record. United States v. Leedy, 65 M.J. 208,
213 (C.A.A.F. 2007) (citations omitted). We review de novo any conclusions of
law. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009) (citations
omitted). “The abuse of discretion standard is a strict one, calling for more than
a mere difference of opinion. The challenged action must be arbitrary, fanciful,
clearly unreasonable, or clearly erroneous.” United States v. Solomon, 72 M.J.
176, 179 (C.A.A.F. 2013) (quotation omitted). A military judge commits an
abuse of discretion when: (1) the findings of fact upon which the ruling is pred-
icated are not supported by the evidence of record; (2) incorrect legal principles
are used; or (3) “application of the correct legal principles to the facts is clearly
unreasonable.” United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing
United States v. Mackie, 66 M.J. 198, 199 (C.A.A.F. 2008)).
If an “alleged error is of constitutional dimensions, we must conclude be-
yond a reasonable doubt that it was harmless before we can affirm.” United
States v. Condon, 77 M.J. 244, 246 (C.A.A.F. 2018) (citation omitted). To con-
clude that such an error is harmless beyond a reasonable doubt, we must be
convinced that the error did not contribute to the verdict obtained. Id. (citation
omitted). “The Government bears the burden of establishing that any consti-

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tutional error is harmless beyond a reasonable doubt.” United States v. Sim-
mons, 59 M.J. 485, 489 (C.A.A.F. 2004) (citation omitted). It is not that the
factfinder was “totally unaware of that feature of the trial later to be held er-
roneous” but rather, “to find that error unimportant in relation to everything
else” the factfinder considered on the issue in question, as revealed in the rec-
ord. United States v. Moran, 65 M.J. 178, 187 (C.A.A.F. 2007) (citation omit-
ted).
The Fourth Amendment protects “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures.” U.S. CONST. amend. IV. “The values protected by the Fourth Amend-
ment . . . substantially overlap those the Fifth Amendment helps to protect.”
Schmerber v. California, 384 U.S. 757, 767 (1966).
The Fifth Amendment to the United States Constitution provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against him-
self . . . .” U.S. CONST. amend. V. “To qualify for the Fifth Amendment privilege,
a communication must be testimonial, incriminating, and compelled.” Hiibel v.
Sixth Judicial Dist. Court, 542 U.S. 177, 189 (2004) (citation omitted). “[T]o be
testimonial, an accused’s communication must itself, explicitly or implicitly,
relate a factual assertion or disclose information.” Doe v. United States, 487
U.S. 201, 210 (1988). “It has, however, long been settled that [Fifth Amend-
ment] protection encompasses compelled statements that lead to the discovery
of incriminating evidence even though the statements themselves are not in-
criminating and are not introduced into evidence.” United States v. Hubbell,
530 U.S. 27, 37 (2000). “The privilege afforded not only extends to answers that
would in themselves support a conviction under a federal statute but likewise
embraces those which would furnish a link in the chain of evidence needed to
prosecute the claimant for a federal crime.” Id. at 38 (quotation omitted).
As “[t]he circumstances surrounding in-custody interrogation can operate
very quickly to overbear the will of one merely made aware of his privilege by
his interrogators . . . the right to have counsel present at the interrogation is
indispensable to the protection of the Fifth Amendment privilege.” Miranda v.
Arizona, 384 U.S. 436, 469 (1966). In Edwards v. Arizona, 451 U.S. 477, 484–
85 (1981), the Supreme Court of the United States added a second prophylactic
layer against potential law enforcement misconduct during suspect interviews.
See also Mitchell, 76 M.J. at 419. Once a suspect in custody has “expressed his
desire to deal with the police only through counsel, [he] is not subject to further
interrogation by the authorities until counsel has been made available to him,
unless the accused himself initiates further communication . . . .” Edwards,
451 U.S. at 484–85; see Mil. R. Evid. 305(e)(3).
“The protections afforded to servicemembers under Article 31(b), UCMJ,
are in many respects broader than the rights afforded to those servicemembers

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under the Fifth Amendment to the Constitution.” United States v. Evans, 75
M.J. 302, 303 (C.A.A.F. 2016). “If the Article 31(b) violation also implicates the
constitutional rights of the accused, then the harmless beyond a reasonable
doubt test applies.” Id.
Mil. R. Evid. 301(a) establishes a general rule that “[a]n individual may
claim the most favorable privilege provided by the Fifth Amendment, Article
31 [UCMJ], or these rules.” Mil. R. Evid. 305(c)(2), Fifth Amendment Right to
Counsel, states “[i]f a person suspected of an offense and subjected to custodial
interrogation requests counsel, any . . . evidence derived from the interrogation
after such request, is inadmissible against the accused unless counsel was pre-
sent for the interrogation.” The CAAF rejected a challenge that the “derivative
evidence” language in the rule was the result of a scrivener’s error and applied
the plain language of Mil. R. Evid. 305(c)(2). Mitchell, 76 MJ at 419–20, n.7.
The CAAF, in Mitchell, evaluated whether the inevitable discovery doctrine
applied after a violation of the Fifth Amendment right to counsel. Id. at 420.
The CAAF determined in Mitchell for the exception to apply, the Government
must “demonstrate by a preponderance of the evidence that when the illegality
occurred, the government agents possessed, or were actively pursuing, evi-
dence or leads that would have inevitably led to the discovery of the evidence
in a lawful manner.” Id. (quoting United States v. Wicks, 73 M.J. 93, 103
(C.A.A.F. 2014)). 11 “[M]ere speculation and conjecture” as to the inevitable dis-
covery of the evidence is not sufficient when applying this exception. United
States v. Maxwell, 45 M.J. 406, 422 (C.A.A.F. 1996). This exception is only ap-
plicable “[w]hen the routine procedures of a law enforcement agency would in-
evitably find the same evidence.” United States v. Owens, 51 M.J. 204, 210–11
(C.A.A.F. 1999) (citation omitted). The doctrine may also “apply where it is
reasonable to conclude officers would have obtained a valid authorization had
they known their actions were unlawful.” United States v. Eppes, 77 M.J. 339,
347 (C.A.A.F. 2018) (citation omitted).
3. Analysis
We begin by adopting the Government’s assumption that Appellant’s Fifth
Amendment rights were violated. The Government at trial and on appeal used
the plural “rights” when describing the violation. We will therefore assume,
without deciding, that (1) Appellant’s Fifth Amendment privilege against self-

11 We note that Wicks is a Fourth Amendment case involving application of the exclu-
sionary rule and the inevitable discovery exception. We follow our superior court’s lead
in applying Wicks and the cases it cites to Appellant’s case. See also United States v.
Roa, 24 M.J. 297, 302–03 (C.M.A. 1987) (C.J. Everett concurring in the result) (J. Sul-
livan concurring in the result) (applying inevitable discovery in the context of the Fifth
Amendment right to counsel).

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incrimination was violated as the military magistrate’s order to unlock his
phone via biometrics or passcode compelled Appellant to communicate infor-
mation that was testimonial and incriminating; and (2) Appellant’s Fifth
Amendment right to counsel was violated as he was subject to custodial inter-
rogation without counsel present when he was ordered by the military magis-
trate to unlock his phone via biometrics or a passcode. By assuming a consti-
tutional violation of both Fifth Amendment rights, we resolve Appellant’s first
three challenges to the military judge’s ruling. Therefore, we need not discuss
further whether the military judge abused his discretion by failing to follow
Mitchell; by not applying Mil. R. Evid. 304(a)’s general rule that evidence de-
rived from an involuntary statement is inadmissible; and by not applying Mil.
R. Evid. 305(c)(2)’s specific rule for suppressing evidence derived from a custo-
dial interrogation after a request for counsel.
Turning to Appellant’s fourth challenge, we agree that the military judge
abused his discretion by applying the good faith exception of Mil. R. Evid.
311(c)(3) and by conducting the balancing test of Mil. R. Evid. 311(a)(3) prior
to applying the exclusionary rule. Appellate government counsel also agree
that Mil. R. Evid. 311 does not apply to a Fifth Amendment violation. See also
United States v. Bello, No. ACM S32489, 2019 CCA LEXIS 200, at *17, n. 7 (7
May 2019) (unpub. op.). We conclude the military judge abused his discretion
by applying incorrect legal principles—the good faith exception, under Mil. R.
Evid. 311(c)(3), and the balancing test of Mil. R. Evid. 311(a)(3)—to Fifth
Amendment violations.
We also agree with Appellant’s fifth challenge that the military judge’s de-
termination that DCFL would have discovered all the text messages on Appel-
lant’s phone was unsupported by the record. See Leedy, 65 M.J. at 213. We
determine that two findings of fact in the military judge’s ruling are clearly
erroneous because they are unsupported by the record: (1) “Had the accused
refused to unlock his cellphone, the AFOSI would have sent the accused’s Sam-
sung Galaxy S7 to . . . [DCFL];” and (2) “DCFL had the capability to access the
contents of a locked Galaxy S7 phone.”
Neither of these findings of fact were contained in the military judge’s oral
ruling during trial. Rather, they were added in his written ruling, and he
acknowledged this shift when he wrote that the decision was made “upon fur-
ther reflection of the evidence presented at the Article 39(a) motions hearing.”
We have reviewed the record and did not discover any evidence presented that
DCFL would have been able to unlock Appellant’s phone. While the Govern-
ment’s motion originally posited that DCFL had such a capability, upon ques-
tioning by the military judge, the trial counsel admitted no such evidence was
presented. Trial counsel summarized the Government’s position as “we know
it is possible, but not inevitable.” We are uncertain what caused the military

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judge’s “further reflection” described in his written ruling. We are certain the
two findings of fact he made regarding DCFL unlocking Appellant’s phone are
unsupported by the record of trial in Appellant’s case. Id. As we determine
these two findings of fact are unsupported by the record, we must conclude the
military judge abused his discretion by admitting the UFED report from Ap-
pellant’s phone in its entirety. Essentially, if there was no evidence that DCFL
could unlock Appellant’s phone, then AFOSI would never have been able to
obtain the UFED report from Appellant’s phone. However, this conclusion does
not end the inquiry as AFOSI already possessed the screenshots of some text
messages between Appellant and A1C TM and the military judge found AFOSI
would inevitably discover the same text messages in the UFED report from
A1C TM’s phone which we discuss below. We specifically considered whether
anything important could only have come from Appellant’s phone as reflected
in the UFED report. Appellant observes that, without his phone, AFOSI would
only be able to “presume” that Appellant himself received and read the text
messages. We reject Appellant’s conclusion. There was powerful circumstan-
tial evidence from the testimony of A1C TM that Appellant was the one texting
her as she worked as a confidential information against him. Further, looking
at the substance of the text message responses from Appellant, we can easily
conclude he received and read the messages that deal with marijuana. To the
extent the UFED report admitted contained different information from the
screenshots AFOSI already had and the text messages AFOSI would have in-
evitably discovered from A1C TM, as discussed below, we find such error was
harmless beyond a reasonable doubt. See Moran, 65 M.J. at 187.
We also agree with Appellant’s sixth challenge that inevitable discovery
does not apply to the text messages between Appellant and anyone other than
A1C TM. The record contains no evidence, let alone a preponderance of the
evidence, that government agents possessed or were actively pursuing leads
against JF (a civilian), A1C LH, or any person other than A1C TM. See Wicks,
73 M.J. at 103. We find the military judge abused his discretion by not sup-
pressing the text messages between Appellant and everyone else other than
A1C TM.
We find the Government met its burden of showing admission of the text
messages between Appellant and everyone else besides A1C TM was harmless
beyond a reasonable doubt. Excluding those text messages, the Government’s
case remained very strong. Appellant was caught on video during both drug
distributions, and his own words and actions involving marijuana provided
ample evidence to result in the conviction and sentence. A1C TM’s testimony
provided valuable context consistent with the video evidence. We find Appel-
lant’s statement to AFOSI that he had never sold drugs in his life to be flatly
inconsistent with his distribution of marijuana to A1C TM that was captured
on video. AFOSI recovered this marijuana from A1C TM’s center console where

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Appellant put it. Forensic testing confirmed the substance was marijuana.
Further, the text messages between Appellant and A1C TM—which we find
would have been inevitably discovered—provided additional corroboration for
each of the drug distributions.
We considered that Appellant texted with JF before the comedy show that
he “got [JF] some stuff” for their trip to Raleigh. JF texted “some of the good
goods” and Appellant texted “Yes, some good goods . . . .” In eight lines of the
findings closing argument, trial counsel argued the reasonable inference that
these messages show Appellant “got marijuana” to give to JF, A1C LH, and
JF’s mother. We do not disagree with that inference but we contrast it with
trial counsel’s first words in closing argument that “the best evidence in this
case is the indisputable video evidence.” We conclude the text messages about
the “good goods” and trial counsel’s brief argument did not contribute to the
verdict because there was notably stronger video evidence admitted and ar-
gued. The video evidence together showed Appellant bringing marijuana into
A1C TM’s vehicle before the trip to Raleigh, debating whether to bring the ma-
rijuana inside the mall, at the Forever 21’s dressing room where the distribu-
tion took place, and A1C TM’s commentary about being an accomplice to Ap-
pellant’s drug deal inside Forever 21. Any text message references to Appellant
possessing “good goods” for JF prior to the first marijuana distribution were
unimportant when compared to the evidence admitted from the day of the first
marijuana distribution. See Moran, 65 M.J. at 187.
The trial counsel made a second reference in closing argument to “those
text messages” asking the military judge to “scrub them carefully” to rebut a
potential entrapment defense. We find this reference encompasses all of the
text messages, including those between Appellant and A1C TM. Thus, the trial
counsel would have been permitted to make the same argument even if the
military judge had only admitted the text messages between Appellant and
A1C TM. We conclude that having more text messages available in evidence
for trial counsel’s point did not contribute to the verdict, especially as Appel-
lant only provided notice of an entrapment defense rather than actually using
it as part of the defense strategy. Additionally, during sentencing argument,
the trial counsel did not mention the text messages at all. On the whole, we
find both (1) admission of the text messages between Appellant and individuals
other than A1C TM and (2) the trial counsel’s brief arguments about them to
be utterly unimportant in relation to everything else the military judge admit-
ted into evidence and considered in determining a verdict and sentence. Id. We
conclude the error was harmless beyond a reasonable doubt.
Finally, we resolve Appellant’s seventh challenge against him as we find
no abuse of discretion by the military judge in determining the Government
would have inevitably discovered text messages between Appellant and A1C

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TM. AFOSI had screenshots of some of the text messages between A1C TM
and Appellant in their possession before the search of Appellant’s phone be-
cause A1C TM sent them to AFOSI. Even Appellant admits that “it is true”
these messages would “likely meet [the inevitable discovery] exception.” Cer-
tainly, the screenshots of text messages are not derivative evidence of the
search of Appellant’s phone as AFOSI already had them in their possession.
Further, the military judge found as fact that the copies of the texts A1C TM
provided related to the charged misconduct. This finding of fact was also sup-
ported by the testimony of A1C TM and SA PM. The Government had to prove
inevitable discovery applied by a preponderance of the evidence. The military
judge applied this burden correctly.
The military judge also found as fact that if Appellant “had refused to un-
lock the phone” that AFOSI “would have requested from [A1C TM] that she
allow access to her phone to retrieve the texts between herself and [Appellant]
relevant to the underlying charges.” This finding was also supported by the
testimony of SA PM and A1C TM by a preponderance of the evidence. At the
time Appellant was ordered to unlock his phone, A1C TM was not yet facing a
drug investigation by AFOSI. A1C TM had the same phone through August of
2017 which would have given AFOSI more than sufficient time to obtain text
messages from A1C TM. Even after this date, A1C TM expected a backup of
her text messages to be remotely backed via iCloud to her laptop which she
still had. A1C TM testified at trial that she would have consented to give
AFOSI the text messages between herself and Appellant that related to the
charged misconduct if they had asked.
We have no difference of opinion with the military judge’s ultimate conclu-
sion that inevitable discovery applied, though we rely on Mitchell, Roa, and
Mil. R. Evid. 304(b)(3). See 76 M.J. at 420, 24 M.J. at 302–03 (C.J. Everett
concurring in the result) (J. Sullivan concurring in the result). While the mili-
tary judge used the word “could” instead of “would” several times in his ruling
on inevitable discovery, we do not find he engaged in speculation or conjecture.
See Maxwell 45 M.J. at 422. Indeed, we conclude that AFOSI possessed a lead
that would have inevitably led to the discovery of the evidence. See Wicks, 73
M.J. at 103. The lead was specifically that A1C TM had the texts with Appel-
lant on her cell phone and they related to the charged misconduct. The lead
existed at the time Appellant was ordered to unlock his phone.
We also reject Appellant’s contention that A1C TM’s decision to only give
AFOSI screenshots of texts, rather than access to her phone, somehow meant
she would not have given consent to obtain messages at a later time. A1C TM
testified during trial that she would have given consent if requested.

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The military judge did not find that inevitable discovery applied on the ba-
sis that it was reasonable to conclude AFOSI “would have obtained a valid au-
thorization had they known their actions were unlawful.” See Eppes, 77 M.J.
at 347. The Government requests we look to the evidence presented on the good
faith exception as “relevant” to inevitable discovery. We decline the Govern-
ment’s invitation and resolve inevitable discovery based on the above analysis.
Similarly, we do not reach whether AFOSI would have sought search au-
thorization for A1C TM’s phone if she refused to consent to release her text
messages with Appellant. There was some evidence presented during motion
practice about what SA PM would have done if A1C TM refused to consent. We
need not decide whether that testimony was sufficient to show a routine pro-
cedure of a law enforcement agency that would have inevitably found the text
messages with Appellant on A1C TM’s phone. See Owens, 51 M.J. at 210. We
find no abuse of discretion by the military judge in determining AFOSI would
have inevitably discovered text messages between Appellant and A1C TM from
A1C TM’s phone in a lawful manner.
B. Additional Objections to the UFED Report
1. Additional Background
Although we found the military judge abused his discretion in admitting
the UFED report as derivative evidence, we also choose to address the other
objections to the UFED report Appellant raised on appeal. Prior to the Prose-
cution offering the UFED report into evidence, SA PM testified about the pro-
cess used to extract text messages from Appellant’s phone. SA PM explained
that after Appellant unlocked the phone pursuant to the military magistrate’s
order, SA PM logged the phone into evidence and began an attempt to pull the
entire contents of the phone. However, SA PM testified some cell phones only
give the opportunity to pull specific information and Appellant’s phone only
allowed collection of text messages and multimedia messages which can con-
tain pictures. SA PM reviewed the pertinent text messages that referenced Ap-
pellant’s involvement with marijuana. SA PM turned the data over to Investi-
gator NS who produced the UFED report. SA PM testified that the excerpt
from the UFED report offered into evidence contained text messages between
Appellant and A1C TM and text messages between Appellant and JF. SA PM
testified that he had reviewed the exhibit the Prosecution was offering into
evidence. The Prosecution then offered the 14-page UFED report into evidence.
Trial defense counsel lodged several objections. First, trial defense counsel
objected to the text messages on or after 17 March 2017 as irrelevant. The
military judge sustained this objection only to the text messages after 17
March 2017. Second, trial defense counsel objected (under Mil. R. Evid. 403)

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that the remainder of the exhibit wasted the court’s time and clouded the rec-
ord with more paper. The military judge overruled this objection and admitted
the remaining text messages, finding them relevant and determining they
were not unfairly prejudicial or a waste of the court’s time under Mil. R. Evid.
403. Trial defense counsel did not object to the authenticity of the exhibit.
Before this court, Appellant argues that the military judge abused his dis-
cretion by admitting the UFED report when SA PM (1) authenticated a report
that he played no role in creating and (2) had no personal knowledge of whether
the report accurately reflected the information on Appellant’s phone. Appellant
posits that SA PM, as a lay witness, was also not qualified to give an opinion
about the report’s accuracy or completeness. Appellant accurately points out
that Investigator NS did not testify as a witness at his trial. The Government
disagrees with Appellant on the standard of review and argues that we should
test for plain error as Appellant failed to preserve an objection to the authen-
ticity of the exhibit. We agree with the Government that plain error is the cor-
rect standard of review.
2. Law
Mil. R. Evid. 103(a)(1) generally requires a party to make a timely objection
and state the specific ground for the objection unless it is apparent from the
context in order to preserve a claim of error. “A party is not necessarily re-
quired to refer to a specific rule by citation. A party is required to provide suf-
ficient argument to make known to the military judge the basis of his objection
and, where necessary to support an informed ruling, the theory behind the ob-
jection.” United States v. Datz, 61 M.J. 37, 42 (C.A.A.F. 2005) (citations omit-
ted). Mil. R. Evid. 103 “should be applied in a practical rather than a formulaic
manner.” United States v. Reynoso, 66 M.J. 208, 210 (C.A.A.F. 2008). If the
party fails to preserve such a claim, it is forfeited and the ruling is reviewed
for plain error. Id. By contrast, the ruling is reviewed for abuse of discretion if
the party preserves the claim. United States v. Lubich, 72 M.J. 170, 173
(C.A.A.F. 2013) (citation omitted).
The requirement of authentication is satisfied by “evidence sufficient to
support a finding that the item is what the proponent claims it is.” Mil. R. Evid.
901(a). Evidence may be authenticated, inter alia, through the testimony of a
witness with personal knowledge. Mil R. Evid 901(b)(1). It may also be authen-
ticated through testimony describing a process or system and showing it pro-
duces an accurate result. Mil R. Evid. 901(b)(9). The proponent “needs only to
make a prima facie showing” for the item to be admitted as authenticated, and
any “flaws in the authentication . . . go to the weight of the evidence instead of
its admissibility.” Lubich, 72 M.J. at 174 (citation omitted). In order to obtain
relief under the plain error standard, Appellant must demonstrate error that

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was plain or obvious in light of Mil. R. Evid. 901(a)’s standard of sufficient
evidence that the item is what the proponent claims it to be.
3. Analysis
Trial defense counsel did not object to the UFED report on authenticity
grounds. He did not cite Mil. R. Evid. 901. He used no words to indicate any
concern about whether the exhibit was what it purported to be—an accurate
excerpt of the text messages extracted from Appellant’s cell phone. We deter-
mine Appellant forfeited a claim of error to authenticity that he now asserts,
and we review the military judge’s decision to admit the exhibit under the plain
error standard. See Reynoso, 66 M.J. at 210; Mil. R. Evid. 103(f).
We conclude there was no error, let alone plain error, in the military judge’s
decision to not exclude the UFED report on authenticity grounds. SA PM tes-
tified that he had been trained to do cell phone extractions and he described,
in detail, the process he used to personally extract the data contained in the
UFED report from Appellant’s cell phone. He testified that he reviewed the
“pertinent pages” of the data he collected. SA PM recognized the exhibit and
knew that Investigator NS produced it. He reviewed the exhibit and believed
it contained text messages between Appellant and A1C TM and JF. We find
the Prosecution made a prima facie showing of “sufficient” evidence by a wit-
ness with personal knowledge to support a finding that the UFED report is
what it claims to be. See Mil. R. Evid. 901(a), (b)(1). Additionally, we find the
process described by SA PM to be a prima facie showing of “sufficient” evidence
that described a process or system that produced an accurate result. Mil. R.
Evid. 901(a), (b)(9).
Even if we assume it was error to fail to call Investigator NS to testify 12
about his production of the report, that “error” would not have been plain or
obvious to the military judge. It was not plain or obvious that the exhibit was
anything other than an accurate extract of Appellant’s text messages. As SA
PM extracted the data himself, the military judge had no reason to question
the accuracy of the UFED report. Similarly, it would not have been plain or
obvious to the military judge that SA PM did not have sufficient knowledge of
whether the UFED extraction process produced an accurate result when SA
PM had been trained on the process and testified about the process in detail.
As we find no plain or obvious error regarding authenticity, we need not test
for material prejudice.
We also considered the UFED report’s admissibility in light of relevance
under Mil. R. Evid. 401 and waste of time under Mil. R. Evid. 403. We find no

12Appellant does not raise the Confrontation Clause as a basis for error. U.S. CONST.
amend. VI.

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abuse of discretion in the military judge’s decision to overrule these objections
in light of the probative value of the text messages between Appellant and A1C
TM about the charged misconduct.
C. Legal and Factual Sufficiency
1. Additional Background
Appellant claims A1C TM (the key eyewitness) was not credible and that
her testimony was necessary to interpret the video clips. Appellant points out
that A1C TM was a “serious drug user” and testified favorably for the Govern-
ment to reduce her impending sentence.
SA PM testified how A1C TM was recruited to be a confidential informant
and described her performance in that role. In October 2016, AFOSI opened up
a development file on A1C TM when her roommate was suspected of using
drugs. In January 2017, A1C TM and another Airman were implicated in a
theft of chicken wings from the base dining facility. After these incidents,
AFOSI interviewed A1C TM and requested she work with them to uncover
military members using illegal drugs. A1C TM agreed and received training
from AFOSI on their investigations and legal concepts like entrapment.
During trial, A1C TM denied knowing about the AFOSI development file
regarding her roommate’s drug use until trial defense counsel mentioned it
during a pretrial interview. A1C TM also denied wrongdoing in the chicken
wings theft investigation and further denied lying about being involved. Both
the AFOSI development file and the chicken wings theft investigation occurred
prior to A1C TM’s work as a confidential informant with AFOSI against Ap-
pellant.
At the time of Appellant’s trial on 18–19 December 2017, A1C TM was the
subject of an open AFOSI investigation after her urine tested positive for two
controlled substances. Additionally, SA PM testified that he had concerns
about A1C TM working as a confidential informant because she was a manip-
ulative person who liked to control others to better her situation. Trial defense
counsel mentioned that A1C TM would testify under a grant of immunity dur-
ing opening statement. However, A1C TM was not questioned about the grant
of immunity or order to testify during her trial testimony. 13

13 The pretrial allied papers in the record of trial show the Commander, Ninth Air
Force, granted A1C TM testimonial immunity and ordered her to testify in Appellant’s
case. On 13 December 2017, A1C TM acknowledged the grant of immunity and order
to testify.

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2. Law
We review issues of factual and legal sufficiency de novo. Article 66(c),
UCMJ, 10 U.S.C. § 866(c); United States v. Washington, 57 M.J. 394, 399
(C.A.A.F. 2002) (citation omitted).
The test for legal sufficiency 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.
Turner, 25 M.J. 324, 324–25 (C.M.A. 1987) (citing Jackson v. Virginia, 443 U.S.
307, 319 (1979)). Importantly, “[t]he term reasonable doubt . . . does not mean
that the evidence must be free from conflict.” United States v. Wheeler, 76 M.J.
564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. Lips, 22 M.J. 679,
684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018). “In applying this
test, ‘we are bound to draw every reasonable inference from the evidence of
record in favor of the prosecution.’” Id. (quoting United States v. Barner, 56
M.J. 131, 134 (C.A.A.F. 2001)) (additional citation omitted). “Our assessment
of legal and factual sufficiency is limited to the evidence produced at trial.” Id.
(citing United States v. Dykes, 38 M.J. 270, 272 (C.M.A 1993)).
“The test for a factual sufficiency review . . . is ‘whether, after weighing the
evidence in the record of trial and making allowances for not having personally
observed the witnesses, the members of the service court are themselves con-
vinced of appellant’s guilt beyond a reasonable doubt.’” United States v. Ro-
sario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation omitted); see also Turner, 25
M.J. at 325. “In conducting this unique appellate role, we take ‘a fresh, impar-
tial 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 rea-
sonable doubt.’” Wheeler, 76 M.J. at 568 (alteration in original) (quoting Wash-
ington, 57 M.J. at 399). Just as with legal sufficiency, “[t]he term reasonable
doubt . . . does not mean that the evidence must be free from conflict.” Id. (cit-
ing Lips, 22 M.J. at 684).
3. Analysis
Appellant’s convictions for wrongful distribution of marijuana required the
Government to prove two elements beyond a reasonable doubt: (1) that Appel-
lant distributed marijuana as charged in the two specifications; and (2) that
his distribution was wrongful each time. See MCM, pt. IV, ¶ 37.b.(3). The term
“distribute” means to deliver to the possession of another. Id. at ¶ 37.c.(3). Dis-
tribution of a controlled substance is “wrongful” if it is done without legal jus-
tification or authorization. Id. at ¶ 37.c.(5). Distribution of a controlled sub-
stance is not wrongful if such acts are: (A) done pursuant to legitimate law
enforcement activity; (B) done by authorized personnel in the performance of

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medical duties; or (C) done without knowledge of the contraband nature of the
substance. Id. Distribution may be inferred to be wrongful in the absence of
evidence to the contrary. Id.
The video equipment installed by AFOSI in A1C TM’s car provides compel-
ling evidence to support Appellant’s convictions for distribution of marijuana.
While portions of the videos are occasionally difficult to hear, Appellant’s nu-
merous references to marijuana easily stand out. Additionally, the video clips
depict Appellant’s demeanor both before and after the first distribution and
during the second distribution. Finally, Appellant engaged in several debates
with A1C TM on the logistics of transporting and possessing marijuana prior
to the first distribution which set the stage for what is observable in the For-
ever 21 video footage.
We carefully examined the testimony of A1C TM and found her recitation
of the events during both marijuana distributions to be consistent with the
video evidence admitted during trial. On the first distribution, A1C TM testi-
fied to exactly when the marijuana was delivered to JF’s mother and the For-
ever 21 video recording is consistent with her testimony. Also, we found A1C
TM’s Snapchat video to provide valuable evidence as it was recorded once Ap-
pellant and A1C TM got back to her car after the first distribution. A1C TM
played back the audio of the Snapchat more than once for Appellant and this
playback was recorded by the AFOSI equipment. We find this evidence to be
strong corroboration of both A1C TM’s testimony and the Forever 21 video foot-
age that Appellant wrongfully distributed marijuana to JF’s mother.
The evidence supporting the second distribution of marijuana is even
stronger. AFOSI’s video equipment captured this transaction from beginning
to end. SA PM found the marijuana exactly where the video showed it would
be—in A1C TM’s center console. Forensic testing confirmed the substance dis-
tributed was approximately three grams of marijuana. The video shows Appel-
lant taking cash from A1C TM after he delivers the marijuana to her car’s cen-
ter console.
We considered that A1C TM was actively under investigation for her own
drug involvement at the time of her testimony, along with all the other factors
in evidence that affected her believability. We find her testimony that she wit-
nessed Appellant distribute marijuana in Forever 21 to JF’s mother and that
she bought marijuana from Appellant for $60.00 to be credible and supported
by the other evidence in this case.
After considering all of Appellant’s challenges and drawing “every reason-
able inference from the evidence of record in favor of the prosecution,” the evi-
dence is legally sufficient to support Appellant’s convictions for distribution of
marijuana. Barner, 56 M.J. at 134. Moreover, having weighed the evidence in

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the record of trial and having made allowances for not having personally ob-
served the witnesses, we are convinced of Appellant’s guilt of both distributions
of marijuana beyond a reasonable doubt. See Turner, 25 M.J. at 325. Appel-
lant’s conviction for two specifications of distribution of marijuana is therefore
both legally and factually sufficient.

III. CONCLUSION
The approved findings and sentence are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred.
Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the
findings and sentence are AFFIRMED.

FOR THE COURT

CAROL K. JOYCE
Clerk of the Court

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