United States v. Quezada

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Jonathan QUEZADA, Lance Corporal
United States Marine Corps, Appellant
No. 21-0089
Crim. App. No. 201900115
Argued October 20, 2020—December 20, 2021
Military Judges: Matthew J. Kent (motions) and
John L. Ferriter (arraignment, motions, and trial)
For Appellant: Lieutenant Daniel O. Moore, JAGC, USN
(argued).
For Appellee: Lieutenant Jennifer Joseph, JAGC, USN
(argued); Lieutenant Colonel Christopher G. Blosser, USMC,
Major Kerry E. Friedewald, USMC, and Brian K. Keller,
Esq. (on brief); Lieutenant Colonel Nicholas L. Gannon,
USMC, and Lieutenant Gregory A. Rustico, JAGC, USN.

Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS and Judge
HARDY, and Senior Judge EFFRON, joined.
_______________

Judge MAGGS delivered the opinion of the Court.
Military judges must give the members “appropriate
instructions” before they deliberate on findings. Rule for
Courts-Martial (R.C.M.) 920(a). The standard “false
exculpatory statements” instruction informs the members
that if the accused makes a statement tending to establish his
or her innocence, and the statement is later shown to be false,
the members may consider “whether this circumstantial
evidence points to consciousness of guilt.” Dep’t of the Army,
Pam. 27-9, Legal Services, Military Judges’ Benchbook, ch. 7,
para. 7-22 (2020). This Court previously has stated that the
false exculpatory statements instruction “announces a correct
principle of law.” United States v. Colcol, 16 M.J. 479, 484
(C.M.A. 1983); see also Wilson v. United States, 162 U.S. 613,
620–21 (1896) (upholding a similar instruction). But in this
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case, Appellant asserts that the instruction violated his
presumption of innocence because he was charged both with
committing a substantive offense and with making a false
official statement relating to that offense. Upon careful
consideration of Appellant’s arguments, however, we find no
error. We therefore affirm the decision of the United States
Navy-Marine Corps Court of Criminal Appeals (NMCCA).
United States v. Quezada, No. NMCCA 201900115, 2020 CCA
LEXIS 378, 2020 WL 6268490 (N-M. Ct. Crim. App. Oct. 26,
2020) (unpublished).
I. Background
D.E.A, a seventeen-year-old civilian, accused Appellant of
providing her with whiskey and, without her consent, licking
her vagina and anus and touching other parts of her body.
During a subsequent investigation into the incident,
Appellant told agents of the Naval Criminal Investigative
Service (NCIS) that he did not lick or touch D.E.A.’s vagina,
or used words to that effect. Appellant also made exculpatory
statements to his wife, to a 911 operator, and to a military
policeman desk sergeant. Laboratory analysis of swabs of
D.E.A.’s vagina, anus, and ear later identified DNA evidence
that strongly confirmed D.E.A.’s accusations against
Appellant.
Appellant was charged with one specification of violating
a lawful general order by providing alcohol to a minor, one
specification of making a false official statement by telling the
NCIS agents that he did not touch or lick D.E.A.’s vagina, one
specification of sexual assault by bodily harm by penetrating
D.E.A.’s vulva with his tongue, and one specification of
abusive sexual contact by bodily harm by touching D.E.A.’s
ear, anus, and other named body parts with his tongue, in
violation of Articles 92, 107, and 120 of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 920 (2012 &
Supp. IV 2013–2017). Appellant pleaded not guilty to all
charges and specifications.
A general court-martial with members tried Appellant.
Before the members deliberated on findings, the military
judge informed counsel of his intention to provide a false
exculpatory statements instruction. Trial defense counsel
offered a brief response: “We object to the false exculpatory

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[statements instruction] because of the potential confusion
with the Article 107, false official [statement charge and
specification].” Trial defense counsel did not set forth on the
record a request for tailoring of the instruction, nor did trial
defense counsel request on the record any other modification
of the instruction.
The military judge, however, determined that the
requested instruction was “reasonably raised by the
evidence,” and rejected trial defense counsel’s objection. The
military judge then instructed the members as follows:
There has been evidence that after the offenses
were allegedly committed, the accused may have
made a false statement or given a false explanation
about the alleged offenses. Conduct of an accused,
including statements made and acts done, upon
being informed that a crime may have been
committed, or upon being confronted with a criminal
charge, may be considered by you in light of other
evidence in the case in determining the guilt or
innocence of the accused. If an accused voluntarily
offers an explanation or make[s] some statement
tending to establish his innocence, and such
explanation or statement is later shown to be false,
you may consider whether the circumstantial
evidence points to a consciousness of guilt. You may
infer that an innocent person does not ordinarily
find it necessary to invent or fabricate a voluntary
explanation or statement tending to establish his
innocence. . . . [T]his inference is not required.
Whether the statement that was made was
voluntary or was false is for you to decide. You may
also properly consider the circumstance under which
the statements were given, such as whether they
were given under oath and the environment under
which they were given. Whether . . . evidence as to
an accused’s voluntary explanation or statements
points to a consciousness of guilt, and the
significance, if any, to be attached to any such
evidence are matters for determination by you,
Court members.
The military judge repeatedly instructed the members
that the Government had the burden of proving each element
of each offense beyond a reasonable doubt. At no time did the

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Opinion of the Court

military judge discuss any lower standard of proof. The
military judge also instructed the members as follows:
An accused may be convicted, based only on
evidence before the Court, not on evidence of a
general criminal disposition. Each offense must
stand on its own, and you must keep the evidence of
each offense separate. Stated differently, if you
believe or find that the accused is guilty of one
offense, you may not use that finding or belief as a
basis for inferring, assuming, or proving that he
committed any other offense. If evidence has been
presented which is relevant to more than one
offense, you may consider that evidence with respect
to each offense to which it is relevant.
In arguments on findings, trial counsel focused mostly on
testimony by D.E.A. about what happened and on the DNA
evidence that implicated Appellant. Appellant’s civilian
defense counsel identified reasons for doubting D.E.A.’s
credibility and pointed to evidence that D.E.A. may have
consented to the sexual conduct with Appellant.
The court-martial found Appellant guilty of all the charges
and specifications and sentenced him to six years of
confinement and a dishonorable discharge. The convening
authority approved the sentence as adjudged. On appeal to
the NMCCA, Appellant renewed his objection to the false
exculpatory statements instruction. The NMCCA, however,
concluded that the military judge had acted properly in
providing the instruction. Quezada, 2020 CCA LEXIS 378, at
*7–12, 2020 WL 6268490, at *3–4.
In reaching this conclusion, the NMCCA recognized that
the false exculpatory statements instruction is not
appropriate for general denials of criminal wrongdoing. Id. at
*9, 2020 WL 6268490, at *3. As this Court explained in Colcol,
“in order to decide that an accused’s general denial of illegal
activity is false, the factfinder must decide the very issue of
guilt or innocence; and so the instruction would only tend to
produce confusion because of its circularity.” 16 M.J. at 484.
But the NMCCA found this restriction on using the false
exculpatory statements instruction inapplicable in this case,
reasoning:
Appellant did not make a general denial of criminal
wrongdoing to NCIS; rather, he denied specific

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conduct. He specifically denied that he licked
[D.E.A.’s] vagina. However, the act of licking
[D.E.A.’s] vagina would only satisfy one element of
what became Specification 1 of Charge III, sexual
assault. Appellant’s statement does not resolve the
question of whether [D.E.A.] provided her consent to
engage in that act, also a key element of the Article
120 offense alleged in Specification 1 of Charge III.
Quezada, 2020 CCA LEXIS 378, at *10, 2020 WL 6268490, at
*4.
The NMCCA also cited United States v. Opalka, 36 C.M.R.
938, 944 (A.F.B.R. 1966), a decision that this Court also had
cited in Colcol, 16 M.J. at 484. Quezada, 2020 CCA LEXIS
378, at *9 n.9, 2020 WL 6268490, at *3 n.9. In Opalka, the Air
Force Board of Review indicated that a false exculpatory
statements instruction should not “relate the instruction to
any specific utterance of the accused” because doing so might
“emphasize the prosecution’s case to the detriment of the
accused” by “indicating a belief that the particular statement
or explanation might be false.” 36 C.M.R. at 944–45. Relevant
to this point, the NMCCA made the following observation:
[T]he military judge’s instruction did not identify
any particular statement the members could
consider to be a false explanation. There were
multiple false exculpatory statements that came out
in the course of the trial. Appellant also gave false
explanations to his wife, to the emergency operator
and to the Desk Sergeant.
Quezada, 2020 CCA LEXIS 378, at *10, 2020 WL 6268490, at
*4.
Although Appellant argued in his brief to the NMCCA
that the false exculpatory statements instruction undermined
his presumption of innocence in violation of this Court’s
decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016),
the NMCCA did not expressly address this argument. We
consider this point now. The sole assigned issue is:
The military judge instructed members that they
could consider the fact that Appellant made the false
official statement with which he was charged as
evidence that he was guilty of another charged
offense. Did this instruction violate Appellant’s right

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to a presumption of innocence under United States
v. Hills, 75 M.J. 350 (2016)?
United States v. Quezada, 81 M.J. 174 (C.A.A.F. 2021) (order
granting review).
II. Standard of Review
This Court has held that “[w]hether a panel was properly
instructed is a question of law reviewed de novo.” United
States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). We review
objections to instructions preserved at trial directly, but
review objections not raised only for plain error. United States
v. Williams, 77 M.J. 459, 462 (C.A.A.F. 2018). In this case,
some of Appellant’s arguments appear to extend beyond the
specific objection to the instructions that Appellant made at
trial. The Government, however, has not argued that the
Appellant forfeited any of the arguments that he now raises.
Accordingly, given the lack of any objection by the
Government, and our ultimate conclusion that Appellant’s
arguments have no merit, we do not address the plain error
standard.
III. Discussion
In accordance with the assigned issue, Appellant relies
heavily on our decision in Hills in arguing that the instruction
at issue violated his constitutional presumption of innocence.
In Hills, the accused was charged with several offenses
alleging sexual misconduct. 75 M.J. at 352. The military
judge instructed the members that if they found by a
preponderance of the evidence that the accused had
committed one of the charged offenses—even if they were not
convinced beyond a reasonable doubt that the accused had
committed that charged offense—they could consider the
evidence of that charged offense for its tendency to show that
the accused committed the other charged offenses. Id. at 353.
On appeal, this Court ruled that the instruction violated the
constitutional requirement of due process “by creating [a] risk
that the members would apply an impermissibly low
standard of proof, undermining both ‘the presumption of
innocence and the requirement that the prosecution prove
guilt beyond a reasonable doubt.’ ” Id. at 357 (quoting United
States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000)).

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Appellant acknowledges that this case is somewhat
different from Hills because the instructions in this case did
not involve conflicting standards of proof relating to charged
misconduct. As explained above, the military judge
repeatedly told the members that the standard of proof was
guilt beyond a reasonable doubt and never mentioned any
other standard of proof. But Appellant contends that this case
nonetheless “implicates Hills” because the false exculpatory
statements instruction allowed the members to “use charged
conduct” (i.e., the alleged false statement charged as a
violation of Article 107, UCMJ) to “infer that [Appellant] was
guilty of another charge” (i.e., the alleged sexual acts charged
as a violation of Article 120, UCMJ). Appellant supports this
position with several distinct but related arguments, which
we now consider in turn.
A. Presumption of Innocence
Appellant contends that the military judge “undermined
[his] presumption of innocence” in violation of our decision in
Hills because “the false exculpatory statement instruction
permitted the members to infer guilt based on conduct of
which [he] was presumed innocent.” Appellant explains that
the members “were told his denials of sexual assault may
have been false and he was charged with a false official
statement for denying a sexual assault.” In accordance with
Hills and the precedent upon which Hills relied, we certainly
agree with Appellant that he was presumed innocent of all
the charges and specifications of which he was tried. But we
cannot agree with the rest of Appellant s argument.
Contrary to Appellant’s specific assertions, the military
judge did not instruct the members that “his denials of sexual
assault may have been false.” Instead, the military judge
instructed the members more generally that “the accused
may have made a false statement or given a false explanation
about the alleged offenses,” without identifying specific
statements that might be false. Quezada, 2020 CCA LEXIS
378, at *7, 2020 WL 6268490, at *3. As the NMCCA
recognized, the evidence suggested a number of possible false
statements, all of which would justify the false exculpatory
statements instruction. In addition, Appellant was not
“charged with a false official statement for denying a sexual
assault”; he was charged with making a false official

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statement that he did not lick D.E.A.’s vagina. As the
NMCCA properly recognized, that statement is not a general
denial of criminal wrongdoing because licking D.E.A.’s vagina
would not have been a criminal offense if D.E.A. consented to
the conduct or Appellant made an honest and reasonable
mistake about whether D.E.A. consented.
More generally, if Appellant’s concern is that the
instruction may have allowed the members to use evidence
that Appellant made a false statement both as direct proof
that he violated Article 107, UCMJ, and as circumstantial
evidence of his consciousness of guilt with respect to the
Article 120, UCMJ, offenses, we do not see an error. Our
decision in Hills did not establish a general rule prohibiting
the government from introducing evidence that is relevant to
more than one offense, and no such general rule exists. As the
military judge properly instructed the members, if evidence is
relevant to more than one offense, the court-martial may
consider that evidence with respect to each offense to which
it is relevant. United States v. Vela, 71 M.J. 283, 286 (C.A.A.F.
2012) (confirming that this instruction is an accurate
statement of the law).
In Hills, the central problem was that the instructions
“provided the members with directly contradictory
statements about the bearing that one charged offense could
have on another, one of which required the members to
discard the accused’s presumption of innocence, and with two
different burdens of proof—preponderance of the evidence
and beyond a reasonable doubt.” 75 M.J. at 357. A Hills
problem therefore cannot arise absent confusing instructions
about the burden of proof. Here, Appellant acknowledges that
this case does not involve conflicting burdens of proof.
Accordingly, this case does not involve a Hills error.
B. Lack of Tailoring of the Instruction
At trial, as noted above, trial defense counsel offered a
general objection to the false exculpatory statements
instruction but did not request any specific tailoring of the
instruction on the record. In this appeal, Appellant now
makes three arguments regarding a lack of tailoring of the
false exculpatory statements instruction to the facts of this
case. First, Appellant asserts that the military judge had a

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duty to “offer an instruction that provided guidance to the
members as to which statements could be used to infer
consciousness of guilt of the Article 120 charge.” Second,
Appellant contends that “[w]ithout further tailoring or
guidance, members could infer that conduct for which
[Appellant] was presumed innocent was now evidence that he
was guilty.” Third, Appellant faults the military judge for
“fail[ing] to instruct the members that the false statement
had any probative value other than it was false.” “Like in
Hills,” Appellant asserts, the untailored “instruction gave the
members conflicting statements about the bearing one charge
had on another.”
Without addressing the question of whether the false
exculpatory statements instruction may require tailoring in
some instances, we conclude that each of Appellant’s
contentions lacks merit in this case. First, the military judge
did not have a duty to identify the specific statement or
statements that the members might find false; on the
contrary, doing so might have improperly influenced the
panel members by placing special weight on some evidence as
opposed to other evidence. See Opalka, 36 C.M.R. at 944–45
(recognizing that “it would have been impossible . . . to relate
the instruction to any specific utterance of the accused
without indicating a belief that the particular statement or
explanation might be false”). Second, for the reasons that we
have already provided above, we do not agree that the
instruction compromised Appellant’s presumption of
innocence. Third, the military judge did not have a duty to
instruct the members that a false statement had any
probative value other than that it was false. As the Supreme
Court held in Wilson, and as we recognized in Colcol, a false
exculpatory statement also may provide relevant
circumstantial evidence, namely, evidence of a consciousness
of guilt. Wilson, 162 U.S. at 620–21; Colcol, 16 M.J. at 484.
C. Propensity Evidence
Appellant also contends in his briefs that the false
exculpatory statements instruction was improper because the
instruction “allowed one charge to become propensity
evidence for another” in violation of Hills. When asked to
explain this contention at oral argument, Appellant’s counsel
asserted that the members might have thought that merely

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because Appellant committed the Article 107, UCMJ, offense,
he was more likely to have committed the Article 120, UCMJ,
offenses.
With this contention, we cannot agree. Consciousness of
guilt evidence is different from propensity evidence.
Consciousness of guilt evidence is an acceptable form of
circumstantial evidence used to show “awareness of an
accused that he or she has engaged in blameworthy conduct.”
Black’s Law Dictionary 379 (11th ed. 2019). By contrast,
propensity evidence is a generally impermissible form of
character evidence in which members “prove a person’s
character in order to show that on a particular occasion the
person acted in accordance with the character.” Military Rule
of Evidence 404(b)(1).
There is no propensity problem here. This Court presumes
that the members follow the military judge’s instructions
absent evidence to the contrary. United States v. Short, 77
M.J. 148, 151 (C.A.A.F. 2018). In this case, the military judge
did not in any way instruct the members that they could use
propensity evidence. On the contrary, as described above, the
military judge specifically instructed the members (1) that
they could not find appellant guilty based “on evidence of a
general criminal disposition”; (2) that “[e]ach offense must
stand on its own, and you must keep the evidence of each
offense separate”; and (3) that “if you believe or find that the
accused is guilty of one offense, you may not use that finding
or belief as a basis for inferring, assuming, or proving that he
committed any other offense.”
To be sure, the military judge in Hills also gave a
“spillover instruction” to the members, warning them that
“one offense carries no inference that the accused is guilty of
another offense.” 75 M.J. at 356–57 (internal quotation marks
omitted). But, as this Court reasoned, this instruction did not
eliminate the propensity problem because, in a contradictory
manner, “the military judge concluded the spillover
instruction by reiterating, ‘However, [the Government] may
demonstrate that the accused has a propensity to commit that
type of offense.’ ” Id. at 357 (alteration in original). The
spillover instruction in this case, by contrast, contained no
similar remark about propensity. This case is thus
distinguished from Hills.

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D. Circularity
Finally, Appellant argues that the NMCCA “erred when it
found that the denial to NCIS did not cause a circularity
problem.”1 Specifically, Appellant faults the NMCCA because
it “did not conduct an analysis of the effect the instruction had
on his denial of the actus reus of a specific intent crime when
his denial and the specific intent crime were both charged
offenses.” In Appellant’s view, even if the alleged false
statement was not a general denial of guilt, the falsity of the
statement nonetheless turns on the ultimate question of his
guilt or innocence.
We disagree. Appellant denied that he licked D.E.A.’s
vagina. This statement was not a general denial of guilt and
its falsity also did not determine the ultimate question of
whether Appellant was guilty of the Article 120, UCMJ,
offense. As the NMCCA recognized, to establish Appellant’s
guilt, the Government had to prove that D.E.A. did not
consent to Appellant’s conduct and that Appellant did not act
based on a reasonable mistake of fact as to her consent. These
additional elements did not automatically follow from the
false statement. Indeed, in this case, civilian defense counsel
vigorously addressed the issue of consent during his
argument on the findings.
For these reasons, we conclude that the military judge and
the NMCCA did not err. We therefore have no need to address
the parties’ arguments about whether any error would have
prejudiced Appellant.
IV. Judgment
The judgment of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.

1 This argument appears to relate more to the application of Colcol
to this case than to the application of Hills. But we do not consider
whether this argument falls outside the scope of the granted issue
because the Government has addressed the argument in its briefs
and because we ultimately conclude the argument has no merit.

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