UNITED STATES, Appellee 

v. 

Roberto RODRIGUEZ-RIVERA, Personnelman Second Class 

U.S. Navy, Appellant 

No. 05-0270 

Crim. App. No. 9900859 

United States Court of Appeals for the Armed Forces 

Argued April 5, 2006 

Decided August 9, 2006 

ERDMANN, J., delivered the opinion of the court, in which 

GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J., 

filed a separate opinion concurring in part and in the result. 

Counsel 

For Appellant: Lieutenant Brian L. Mizer, JAGC, USNR (argued). 

For Appellee: Major Kevin C. Harris, USMC (argued); Commander 

Charles N. Purnell, JAGC, USN (on brief). 

Military Judge: Kenneth A. Krantz 

This opinion is subject to revision before final publication. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

2

Judge ERDMANN delivered the opinion of the court. 

 Personnelman Second Class Roberto Rodriguez-Rivera was 

convicted at a general court-martial of making false official 

statements, committing forcible sodomy on a child under twelve, 

taking indecent liberties with a female under the age of 

sixteen, and committing indecent acts with a female under the 

age of sixteen, in violation of Articles 107, 125 and 134, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 907, 925, 

934 (2000). He was sentenced to a reduction in grade to E-1, 

forfeiture of all pay and allowances, confinement for twelve 

years and a dishonorable discharge. The convening authority 

approved the sentence and the United States Navy-Marine Corps 

Court of Criminal Appeals affirmed the findings and sentence. 

United States v. Rodriguez-Rivera, 60 M.J. 843, 848-49 (N-M. Ct. 

Crim. App. 2005). 

 We granted review of the following issues:1

I. 

WHETHER TRIAL COUNSEL COMMITTED 

PROSECUTORIAL MISCONDUCT BY (1) VIOLATING 

THE MILITARY JUDGE’S ORDERS REGARDING 

WITNESS SEQUESTRATION; (2) BY IMPROPERLY 

COACHING THE SIX-YEAR-OLD COMPLAINING 

WITNESS DURING HER DIRECT TESTIMONY; (3) BY 

PURPOSEFULLY ALLOWING OTHER WITNESSES TO 

 

1

 We heard argument in this case on April 5, 2006, at the 

University of Denver, Sturm College of Law, Denver, Colorado, as 

part of the Court’s “Project Outreach.” See United States v. 

Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice 

was developed as part of a public awareness program to 

demonstrate the operation of a Federal Court of Appeals and the 

military justice system. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

3

IMPROPERLY COACH THE COMPLAINING WITNESS 

DURING HER DIRECT TESTIMONY; (4) BY FAILING 

TO BE CANDID WITH THE COURT-MARTIAL 

REGARDING THE COACHING OF THE WITNESS BY 

TRIAL COUNSEL AND OTHER WITNESSES; AND (5) 

BY FAILING TO BE CANDID WITH THE COURTMARTIAL ABOUT NOTES PASSED FROM A 

PROSECUTION WITNESS DURING THE DEFENSE’S 

CASE. 

II. 

WHETHER THE MILITARY JUDGE ERRED TO THE 

SUBSTANTIAL PREJUDICE OF APPELLANT BY 

ADMITTING OVER DEFENSE OBJECTION, THE 

INADMISSIBLE HEARSAY STATEMENTS OF THE 

COMPLAINANT WITNESS. 

III. 

WHETHER THE MILITARY JUDGE ERRED TO THE 

SUBSTANTIAL PREJUDICE OF APPELLANT BY 

GRANTING THE GOVERNMENT’S CHALLENGE FOR 

CAUSE OF CHIEF ELECTRONIC TECHNICIAN DANIEL 

J. [ABEYTA]. 

IV. 

WHETHER THE STAFF JUDGE ADVOCATE ERRED BY 

FAILING TO SERVE APPELLANT WITH A LETTER 

FROM TRIAL COUNSEL TO THE CONVENING 

AUTHORITY THAT NEGATIVELY CHARACTERIZED 

APPELLANT’S UNSWORN STATEMENT. 

V. 

WHETHER THE EVIDENCE PRESENTED ON THE MERITS 

WAS LEGALLY INSUFFICIENT TO PROVE BEYOND A 

REASONABLE DOUBT THAT APPELLANT TOOK 

INDECENT LIBERTIES WITH JK BY WATCHING 

PORNOGRAPHIC MOVIES WITH JK. 

VI. 

WHETHER APPELLANT WAS DENIED DUE PROCESS OF 

LAW WHERE THE COMPLETION OF THE FIRST LEVEL 

OF APPELLATE REVIEW TOOK MORE THAN SIX 

YEARS. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

4

BACKGROUND

From August 1997 through December 1997, Rodriguez-Rivera 

and his wife babysat for their neighbor’s child, JK, at Royal 

Air Force Station, West Ruislip, England. In March of 1998, 

when JK was five, she disclosed to her parents that she had been 

sexually abused by Rodriguez-Rivera. The day following this 

disclosure, JK’s mother arranged a meeting with the base Family 

Advocacy Representative that was also attended by a Naval 

Criminal Investigative Service (NCIS) agent. Appellate Exhibit 

LV reflects that during this meeting JK stated that on numerous 

occasions Rodriguez-Rivera had sucked and kissed her “pee pee”, 

she had sucked his “pee pee”, he had showered with her and 

rubbed soap on her, and he had masturbated in front of her. In 

addition, JK also told the NCIS agent that she had watched adult 

movies with Rodriguez-Rivera while in his bed. An initial 

medical examination of JK disclosed no evidence of any trauma to 

her vagina. 

During a NCIS interview, Rodriguez-Rivera denied having any 

improper or sexual contact with JK. He did admit to possessing 

pornographic videos and allowing JK to take baths while he was 

babysitting her. A search of Rodriguez-Rivera’s home resulted 

in the seizure of pornographic videos. Other facts relevant to 

the disposition of the issues are set forth in the Discussion 

section. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

5

DISCUSSION

I. PROSECUTORIAL MISCONDUCT 

Rodriguez-Rivera alleges that the following actions by 

trial counsel constituted prosecutorial misconduct: (1) 

violation of the military judge’s orders regarding witness 

sequestration; (2) improperly coaching the victim; (3) allowing 

other witnesses to coach the victim; (4) failing to be candid 

with the court-martial regarding the alleged witness coaching; 

and (5) failing to be candid with the court-martial about notes 

received from a prosecution witness during the defense case. We 

will first consider the initial four allegations pertaining to 

witness coaching and then address the final allegation. 

A. Witness sequestration and witness coaching allegations

1. Factual Background

JK was six years old at the time of trial. JK’s testimony 

on direct examination was not consistent with her earlier 

statements to her parents and the Family Advocacy 

Representative. At trial JK testified only that RodriguezRivera had sucked her “pee pee” more than one time and that she 

had seen a “sex movie . . . [a]t Rod’s house” but that 

Rodriguez-Rivera had done nothing more. Following repeated 

attempts by the trial counsel to elicit additional testimony, 

the defense counsel requested an Article 39(a), UCMJ, 10 U.S.C. 

§ 839(a) (2000), session at which he asked the military judge to 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

6

prohibit the Government from pursuing this line of questioning 

as JK had testified that Rodriguez-Rivera had not done anything 

else to her. The military judge sustained the defense objection 

on the ground that the questions had been asked and answered. 

Following that ruling, trial counsel asked the military judge 

for permission to impeach JK’s testimony with her prior 

inconsistent statements. Defense counsel then requested a 

recess to consider that issue. 

Following the recess defense counsel expressed concern to 

the military judge that trial counsel had been in a room with JK 

during the break. The assistant trial counsel explained that JK 

was concerned about the delay in her testimony and asked whether 

she had done something wrong and that he had advised her that 

she had not done anything wrong but she might have to continue 

her testimony. The military judge then granted a defense 

request to voir dire JK about her understanding of what had been 

said to her during the break. 

During voir dire the defense asked JK what had happened 

during the break and JK responded that she had gone to the trial 

counsel’s office with her “momma” and “daddy.” She said that 

the assistant trial counsel “wanted [her] to tell him the rest 

of the story” and that the trial counsel told her not to be 

scared. JK testified that after the trial counsel left the room 

her parents told her she had not told the entire story and that 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

7

she needed to go back into court and say more. She also said 

they talked to her about some of the things that had happened to 

her. 

After JK’s voir dire defense counsel argued to the military 

judge that JK should not be allowed to testify further before 

the members because she was influenced by what happened during 

the break. The Government responded that there was no need to 

prohibit her from testifying because there was no evidence of 

manipulation or danger of prejudice. Both parties noted that 

the facts regarding what occurred during the break could be used 

to impeach JK on cross-examination and defense counsel requested 

a proffer from the assistant trial counsel as to what had been 

said so that he could use it for that purpose. 

The assistant trial counsel stated that JK had asked him 

what was going on and whether she had done anything wrong, and 

he told her “no.” He also told her that she might have to 

testify again and if she did so she would need to tell the 

truth. She responded that she would tell the truth and stated 

that she had already done so. The trial counsel then said, “she 

started to talk about other things,” and she told him she had 

not testified about Appellant putting his “pee pee” in her mouth 

and about the masturbation (which she indicated by moving her 

hands). He said that the victim’s parents were already in the 

room when he came in and were there when he left. When he 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

8

entered the room a second time trial counsel was talking to JK 

and “telling her not to be afraid.” 

The military judge ruled that the members would be allowed 

to hear further testimony from JK. He also noted: 

It goes without saying that the events since 

the last open session with the members are 

fair game for cross-examination along the 

lines of the voir dire already conducted, 

and to the extent that that makes the child 

less comfortable or makes cross-examination 

last longer than it otherwise would have, 

that’s what happens when you talk to a 

witness, or when parents talk to a child 

witness during a break of this kind; issues 

like that arise, and I will permit the 

defense to explore them fully. 

 

JK returned to the stand and detailed for the members how 

Rodriguez-Rivera masturbated and ejaculated on her. She 

indicated that he “soaped her” and washed her “pee pee” and also 

testified that Rodriguez-Rivera sucked her “pee pee” and she 

sucked his “pee pee.” On cross-examination defense counsel 

questioned JK about what happened during the break. JK told the 

members that her parents and assistant trial counsel told her to 

tell the truth and to tell the rest of the story. In response 

to a member’s question, JK also stated that neither her parents 

nor either trial counsel told her what to say “for the rest of 

the story.” 

2. Discussion

Prosecutorial misconduct is generally defined as “action or 

inaction by a prosecutor in violation of some legal norm or 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

9

standard, e.g., a constitutional provision, a statute, a Manual 

rule, or an applicable professional ethics canon.” United 

States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996); United States v. 

Thompkins, 58 M.J. 43, 47 (C.A.A.F. 2003). In analyzing 

allegations of prosecutorial misconduct, “courts should gauge 

the overall effect of counsel’s conduct on the trial, and not 

counsel’s personal blameworthiness.” Thompkins, 58 M.J. at 47 

(citing Smith v. Phillips, 455 U.S. 209, 220 (1982)). 

Where the military judge and the lower court have made 

factual determinations regarding the events surrounding 

allegations of misconduct, we will accept those determinations 

unless they are clearly erroneous. See United States v. Warner, 

62 M.J. 114, 124 (C.A.A.F. 2005) (“Relevant facts are drawn from 

the record of trial, and we accept the factual findings of the 

courts of criminal appeals unless they are clearly erroneous.”). 

If prosecutorial misconduct is found, this court will examine 

the record as a whole to determine whether Appellant was 

prejudiced by the misconduct. United States v. Fletcher, 62 

M.J. 175, 184 (C.A.A.F. 2005). This court weighs three factors 

in evaluating the impact of prosecutorial misconduct on a trial: 

(1) the severity of the misconduct; (2) the measures adopted to 

cure the misconduct; and (3) the weight of the evidence 

supporting the conviction. Id.

 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

10

a. Violation of Sequestration Order

There was no formal sequestration order issued by the 

military judge at trial and the record is unclear as to whether 

the military judge explicitly warned JK’s parents not to discuss 

their testimony with other witnesses. Rodriguez-Rivera argues 

that a sequestration order can be implied because the military 

judge denied a request from the Government to allow one or both 

of JK’s parents to be present when she testified. The lower 

court found that this ruling did not amount to a formal 

sequestration order and we agree. Rodriguez-Rivera, 60 M.J. at 

847. There may be cases, based upon the dialogue between the 

parties and the military judge, where there is a sound basis in 

the record for concluding that there was a clear, common 

understanding between the military judge and the parties as to 

sequestration, without issuance of a formal order. In such a 

case, violating that clear understanding could constitute 

prosecutorial misconduct. In this case, there is neither a 

formal nor a clearly understood sequestration order. Unless the 

record demonstrates that witnesses were to be sequestrated, the 

prosecution cannot be found to have intentionally committed 

misconduct. As a result, we conclude that there was no 

prosecutorial misconduct in this allegation. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

11

b. Coaching by Trial Counsel, Assistant Trial Counsel, or 

JK’s Parents

The lower court concluded that the military judge did not 

prohibit the prosecutors from discussing JK’s testimony with her 

and also found that they did not discuss the substance of her 

testimony with her. Id. Rather, the prosecutors did no more 

than encourage JK “to testify to the whole truth rather than a 

part of it.” Id. The lower court concluded that there was no 

prosecutorial misconduct in allowing JK’s parents “to admonish 

her to tell the whole truth while testifying[,]” and that “it is 

appropriate and reasonable for a young child witness to remain 

in the company of parents or care providers while awaiting trial 

participation.” Id. at 847-48. 

As a general matter, we have permitted greater latitude and 

flexibility when it comes to treatment and testimony of child 

witnesses. See United States v. McCollum, 58 M.J. 323, 330-31 

(C.A.A.F. 2003) (authorizing remote live testimony under certain 

circumstances); United States v. Anderson, 51 M.J. 145, 150 

(C.A.A.F. 1999) (upholding military judge’s decision to allow a 

child to testify behind a screen); United States v. Morgan, 31 

M.J. 43, 48 (C.M.A. 1990) (giving military judge flexibility in 

determining a child’s competency as a witness); United States v. 

Jones, 26 M.J. 197, 198 (C.M.A. 1988) (permitting trial counsel 

to lead retarded, seventeen-year-old witness); see also Paramore 

v. Filion, 293 F. Supp. 2d 285, 292 (S.D.N.Y. 2003) (“[C]ourts 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

12

generally recognize that child witnesses present special 

challenges when testifying in sexual abuse cases and that these 

challenges must be recognized and accommodated.”). 

JK testified that the assistant trial counsel “wanted [her] 

to tell him the rest of the story” and that the trial counsel 

told her not to be scared. The assistant trial counsel 

testified that JK volunteered these incidents in response to his 

telling her that she needed to be sure to tell the truth. While 

JK did testify that she and her parents discussed incidents with 

Rodriguez-Rivera which she did not initially mention at trial, 

she went on to state that they discussed the incidents because 

her previous testimony “wasn’t the whole story.” The lower 

court’s findings that both trial counsel and JK’s parents did 

nothing more than encourage JK to tell the truth and to tell the 

whole story was not clearly erroneous. We therefore conclude 

that no prosecutorial misconduct occurred. 

While we conclude there was no prosecutorial misconduct, we 

also note that to the extent the military judge did have 

concerns about any influence the discussion during the break may 

have had on JK, he mitigated that influence by allowing crossexamination of JK concerning the events during the break and the 

possibility that JK was coached or coerced. Defense counsel 

asked JK several questions about these events during crossexamination. If there was any danger that the meetings with JK 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

13

might have influenced her testimony, the members were made fully 

aware of this possibility. 

c. Assistant Trial Counsel’s Candor Regarding the

Discussions that Occurred During the Break

The military judge and the lower court also found no merit 

in Rodriguez-Rivera’s contentions that trial counsel was less 

than candid about the discussions that occurred during the 

break. Rodriguez-Rivera, 60 M.J. at 848. The military judge 

told assistant trial counsel: 

It is equally clear that [JK’s] perceptions 

of the meeting are different from yours, and 

we are dealing with a child and the 

perceptions of a child, and the emotional 

impact of adult behavior on a child, so the 

difference in perception doesn’t cause me to 

doubt the accuracy of your summary, but it 

is the impact on the child witness that 

counts. 

While there was some disagreement about the discussions that 

occurred between JK, both trial counsel, and JK’s parents, we 

agree that in this case a difference in perception between the 

assistant trial counsel and a child witness is not a sufficient 

basis for finding that the assistant trial counsel was dishonest 

with the military judge. We conclude that the lower court’s 

finding that the assistant trial counsel was candid regarding 

the discussions that occurred during the break was not clearly 

erroneous. Therefore, we conclude that there was no 

prosecutorial misconduct arising from this allegation. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

14

B. Notes from a witness during the trial

1. Factual Background

At trial the Government called Captain Barbara Craig, a 

pediatrician who had examined JK, as an expert witness. During 

the defense case Dr. Craig was observed passing notes to the 

trial counsel. When the Government recalled Dr. Craig to 

testify on rebuttal, the defense objected on the basis that Dr. 

Craig had listened to other witnesses and had collaborated with 

the Government by passing notes to the trial counsel during the 

trial. 

The military judge ruled that the trial counsel had to turn 

over the notes that Dr. Craig had passed to trial counsel. 

Trial counsel objected because the notes contained notations 

made by the trial counsel. The military judge permitted trial 

counsel to redact those notations, and the court then took a 

short recess. When the court reconvened, trial counsel advised 

the military judge that the notes that Dr. Craig had passed were 

not written by Dr. Craig, but that Dr. Craig was merely relaying 

notes passed to trial counsel from other people. The military 

judge accepted trial counsel’s explanation, allowed Dr. Craig’s 

rebuttal testimony and did not require trial counsel to turn 

over the notes. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

15

2. Discussion

Rodriguez-Rivera asserts that the trial counsel exhibited a 

lack of candor about notes passed to him by Dr. Craig during the 

defense’s case. In ruling that Dr. Craig’s rebuttal testimony 

would be allowed, however, the military judge accepted trial 

counsel’s explanation that Dr. Craig was passing notes from 

someone other than Dr. Craig herself. The military judge had 

the opportunity to observe the proceedings and the explanation 

of the trial counsel. We see no basis in the record to conclude 

that the military judge’s finding that trial counsel was candid 

with regard to this incident was clearly erroneous. Therefore, 

there is no basis to conclude that prosecutorial misconduct 

occurred with regard to these notes. 

C. Conclusion

In summary, we find that Rodriguez-Rivera has failed to 

meet his burden of showing that the lower court’s determinations 

concerning the facts underlying the allegations of prosecutorial 

misconduct were clearly erroneous. We therefore affirm the 

Court of Criminal Appeals on these issues. 

II. ADMISSIBILITY OF DR. CRAIG’S TESTIMONY REGARDING STATEMENTS 

MADE BY JK 

A. Factual Background

After JK reported the incidents to her mother she was 

examined by Commander V. D. Morgan, a doctor at the Navy Medical 

Clinic in London. Doctor Morgan concluded that there was “zero 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

16

evidence of trauma or infection to [JK’s] genitalia or anus.” 

JK’s mother sought to have her examined by someone who was “[a] 

specialist in child sex abuse cases,” and tried unsuccessfully 

to make an appointment with a specialist in London. She then 

renewed a request to her command that she be transferred to the 

United States to find the proper care for JK. 

After JK and her family returned to the United States, JK 

was examined by Dr. Craig, an experienced pediatrician and 

director of the Armed Forces Center for Child Protection at the 

National Naval Medical Center at Bethesda, Maryland. Dr. Craig 

was recommended to JK’s parents by trial counsel who also 

contacted Dr. Craig to request that she see JK. Dr. Craig’s 

examination of JK occurred the same day as Rodriquez-Rivera’s 

Article 32, UCMJ, 10 U.S.C. § 832 (2000), hearing was held. 

At trial, Dr. Craig testified regarding her medical 

examination of JK and her subsequent conclusion that JK had 

injuries consistent with “some kind of penetrating injury . . . 

.” Dr. Craig testified that her examination of JK was necessary 

because JK “had not yet had a thorough medical evaluation” and 

she noted that Dr. Morgan was a “family practitioner” who “does 

not specialize in child sexual abuse.” She also testified that 

JK told her a “person named Rod touched her genital area with 

his mouth, and that she touched that person’s penis with her 

mouth . . . .” 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

17

Prior to trial, Rodriguez-Rivera made a motion to exclude 

the testimony of Dr. Craig concerning statements made to her by 

JK on the grounds that it was inadmissible hearsay. He argued 

that the purpose of Dr. Craig’s examination was not medical 

diagnosis or treatment but rather it was “done for the purposes 

of litigation.” In ruling upon the motion, the military judge 

considered an affidavit from Dr. Craig. In that affidavit Dr. 

Craig stated that trial counsel “was aware that there are very 

few pediatricians in the military with clinical experience in 

[child sexual abuse] . . . .” Therefore, the purpose of her 

examination was to “conduct a thorough medical examination” and 

to give a “second opinion regarding [JK]’s health and if she 

needed any further medical or psychological intervention . . . 

.” Dr. Craig explained to JK why she was seeing her and JK 

expressed her understanding that “doctors make you better” and 

that she had to tell the doctor the truth about what was wrong 

in order to get better. The military judge denied the motion 

and found that the testimony was admissible on the basis of 

Military Rule of Evidence (M.R.E.) 803(4), the medical diagnosis 

and treatment exception to the hearsay rule. 

B. Discussion

M.R.E. 803(4) provides an exception to the general hearsay 

rule and allows the admission of statements made for the purpose 

of medical diagnosis or treatment. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

18

Statements which are offered as exceptions 

to hearsay under Mil. R. Evid. 803(4) must 

satisfy two conditions: first the 

statements must be made for the purposes of 

“medical diagnosis or treatment”; and 

second, the patient must make the statement 

“with some expectation of receiving medical 

benefit for the medical diagnosis or 

treatment that is being sought.” 

United States v. Edens, 31 M.J. 267, 269 (C.M.A. 1990) (quoting 

United States v. Deland, 22 M.J. 70, 75 (C.M.A. 1986)). The 

military judge found that the “criteria for the medical hearsay 

exception have been met in this case” and denied the defense 

motion to exclude Dr. Craig’s testimony regarding statements 

made to her by JK. The military judge’s decision to admit this 

evidence is reviewed by this court for abuse of discretion. 

United States v. Hollis, 57 M.J. 74, 79 (C.A.A.F. 2002). 

Rodriguez-Rivera argues that since the examination with Dr. 

Craig was arranged by the trial counsel the same day as 

Rodriguez-Rivera’s Article 32, UCMJ, hearing, the examination 

clearly was not for the purpose of medical treatment but rather 

was for the purpose of allowing hearsay testimony into evidence 

through M.R.E. 803(4). This court has previously concluded that 

the referral of a victim to a medical professional by trial 

counsel “is not a critical factor in deciding whether the 

medical exception applies to the statements she gave to those 

treating her. The critical question is whether she had some 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

19

expectation of treatment when she talked to the caregivers.” 

United States v. Haner, 49 M.J. 72, 76 (C.A.A.F. 1998). 

The military judge’s finding that the “criteria for the 

medical hearsay exception have been met in this case” are 

supported by Dr. Craig’s affidavit. Dr. Craig explained to JK 

why she was coming to see her and JK expressed her understanding 

that “doctors make you better” and that she had to tell the 

doctor the truth about what was wrong in order to get better. 

The purpose of Dr. Craig’s examination was to “conduct a 

thorough medical examination” and to provide a “second opinion 

regarding [JK]’s health and if she needed any further medical or 

psychological intervention . . . .” 

Under the circumstances of this case, the fact that trial 

counsel initiated the examination of JK by Dr. Craig is not a 

sufficient reason to hold that the military judge’s findings 

were clearly erroneous. When she was referred to see Dr. Craig 

JK had not been seen by a doctor who specialized in child sexual 

abuse cases despite her mother’s repeated attempts to have her 

seen by such an expert. Furthermore, Dr. Craig had extensive 

experience in treating suspected victims of child sexual abuse 

and was qualified to provide the type of examination that JK 

needed and had been unable to obtain. Because the military 

judge’s findings that Dr. Craig saw JK for the purpose of 

medical diagnosis and treatment, and that JK expected to receive 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

20

medical treatment when she saw Dr. Craig were not clearly 

erroneous, we hold that his decision to admit the statements 

made by JK to Dr. Craig under M.R.E. 803(4) was not an abuse of 

discretion.2

III. CHALLENGE FOR CAUSE OF CHIEF ABEYTA 

A. Factual Background

During the voir dire of potential members, Chief Electronic 

Technician (ETC) Daniel J. Abeyta stated that he believed 

“children can be coerced just a little bit easier [than adults]” 

and that because a child was nervous he or she might be more 

likely to “just say what they think you want them to say.” He 

also had the following exchange with trial counsel: 

TC: Would you be able to follow an instruction 

telling you that the testimony of one 

witness whom you believe should be enough to 

make a decision in this case. In other 

words, if the government, if we only present 

one witness but you believed that witness is 

that going to be enough for you to make a 

decision in this case without any other 

testimony or evidence? 

MBR (ETC ABEYTA): It would depend on what the 

witness said? 

 

2

 While not the situation here, we note that military judges must 

remain vigilant in ensuring that the hearsay exception for 

statements made for the purposes of medical diagnosis or 

treatment is not used as a subterfuge. In this case, while 

trial counsel could have reasonably anticipated that Dr. Craig 

would testify regarding JK’s medical condition as a result of 

trial counsel’s referral, the record also reflects that Dr. 

Craig legitimately saw JK for the purpose of medical diagnosis 

and treatment. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

21

TC: But just as a general concept, if that is 

all we gave you, is that going to be enough, 

or are you going to kind of want something 

more? 

MBR (ETC ABEYTA): I would want more. Let me put 

it that way. 

TC: What about if that witness were a child? 

Would you even feel more like they would 

need more to corroborate that or wouldn’t it 

make a difference if it was an adult vice 

[sic] a child? 

MBR (ETC ABEYTA): Either way, if it was an adult 

or a child, one witness might not be enough. 

TC: Okay. Because you feel like the government 

needs to give you more than that? 

MBR (ETC ABEYTA): I feel it is the government’s 

obligation to come up with as much evidence 

as possible. 

TC: Do you understand that sometimes the 

circumstances of the allegations make it so 

that there is actually only one person who 

actually witnessed a particular event? 

MBR (ETC ABEYTA): Yes. 

TC: Okay. So bearing that in mind, would you 

still feel you kind of needed something else 

to corroborate that or another witness’ 

testimony to sort of enhance the other 

person’s testimony? 

MBR (ETC ABEYTA): Being there only one witness 

and -- 

TC: For example in this case, you know, from the 

charge sheet you can see that there are 

allegations of child sexual abuse. Clearly 

that is the type of situation where there 

may be only one eyewitness. So, based on 

that, would you feel that if you only had 

one witness come into court that you would 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

22

still kind of want something to corroborate 

that? 

MBR (ETC ABEYTA): Yes, I might want a little bit 

more, and, like I said, it would depend on 

what the witness would say if their [sic] 

testimony -- 

TC: But in general you would feel like you 

wanted something more than that? 

MBR (ETC ABEYTA): In general, yes. 

The Government challenged three members for cause including 

Abeyta. The Government argued that all three members had 

indicated they would require more than the testimony of the 

child witness to convict someone of child abuse and that such 

statements indicated they would place a higher burden on the 

prosecution than the law requires. The defense did not object 

to the challenge of one of the members, but argued that there 

was insufficient basis for excusing either of the other two. 

The military judge denied the challenge against one of the other 

two members but granted the prosecution’s challenge for cause 

against Abeyta. The military judge explained that he granted 

the challenge: “Because of his views not only on wanting more 

than the testimony of one witness but of his view on the 

potential suggestibility or coercibility of children and 

vulnerability to having answers guided.” 

B. Discussion

In evaluating a military judge’s ruling on a challenge for 

cause, this court has found it appropriate to recognize the 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

23

military judge’s superior position to evaluate the demeanor of 

court members. United States v. McLaren, 38 M.J. 112, 118 

(C.M.A. 1993). We will not, therefore, reverse a military 

judge’s ruling on a challenge for cause absent a clear abuse of 

discretion. Id.; United States v. White, 36 M.J. 284, 287 

(C.M.A. 1993). We also have noted that there is “no basis for 

application of the ‘liberal grant’ policy when a military judge 

is ruling on the Government’s challenges for cause.” United 

States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005). 

The burden at trial is on the Government to prove every 

element of the offenses charged beyond a reasonable doubt. The 

testimony of only one witness may be enough to meet this burden 

so long as the members find that the witness’s testimony is 

relevant and is sufficiently credible. See United States v. 

McGinty, 38 M.J. 131, 132 (C.M.A. 1993) (determination that one 

witness is more believable than another is sufficient); United 

States v. Arias, 3 M.J. 436, 437-38 (C.M.A. 1977) (evidence 

legally sufficient where “the accused’s guilt turned ‘basically’ 

upon whether the trial judge believed the child or the 

accused”); see also Weiler v. United States, 323 U.S. 606, 608 

(1945) (“Triers of fact in our fact-finding tribunals are, with 

rare exceptions, free in the exercise of their honest judgment 

to prefer the testimony of a single witness to that of many.”); 

Paramore, 293 F. Supp. 2d at 293 (“In some states, including New 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

24

York, children’s uncorroborated sworn testimonies are legally 

sufficient to convict a defendant on criminal charges.”). If a 

potential member states he would require the Government to 

produce more evidence than the testimony of one witness in order 

to find any element beyond a reasonable doubt, then he is 

holding the Government to a higher standard than the law 

requires and should not be allowed to sit on the panel. 

Abeyta’s responses to questioning by the trial counsel 

clearly indicated that he would want “a little bit more” than 

just the testimony of one witness in order to conclude that the 

Government had met its burden. Even when he agreed that there 

might only be one witness in a case of child sexual abuse such 

as this one, he persisted in his belief that he would want the 

Government to provide additional evidence. He did not waiver in 

his stance, even when trial counsel gave him the opportunity to 

clarify or change his position. Because Abeyta maintained that 

he would require more than the testimony of one witness for the 

Government to meet its burden, we conclude that the military 

judge did not abuse his discretion in granting the Government’s 

challenge for cause against Abeyta. We recognize that defense 

counsel attempted to rehabilitate Abeyta, but that 

rehabilitation fell short of establishing sufficient grounds 

upon which to conclude that the military judge abused his 

discretion in granting the challenge for cause. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

25

IV. FAILURE TO SERVE COMMENTS ON RODRIGUEZ-RIVERA’S UNSWORN 

STATEMENT 

 A. Factual Background

Before the convening authority acted on the case, 

Rodriguez-Rivera submitted a request for clemency. The request 

was sent through the trial counsel, who forwarded the request to 

the convening authority with a note that read: 

Recommend denial due to the serious nature of the 

crimes this criminal committed upon a four and five 

year old girl over a five-month period of time. In 

addition, when given the opportunity during his 

unsworn statement in the sentencing phase of the 

trial, the accused failed to exhibit any remorse 

whatsoever for what he had done to this little girl 

and her family. 

This note was never served on Rodriguez-Rivera. 

 B. Discussion

Rule for Courts-Martial 1107(b)(3)(A) requires that prior 

to taking action on a court-martial sentence a convening 

authority must consider the results of trial, the recommendation 

of the staff judge advocate and any clemency submission from the 

accused. Rule for Courts-Martial 1107(b)(3)(B)(iii) further 

provides that the convening authority may also consider 

additional matters that he deems appropriate but “if the 

convening authority considers matters adverse to the accused 

from outside the record, with knowledge of which the accused is 

not chargeable, the accused shall be notified and given the 

opportunity to rebut.” 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

26

The Government and Rodriguez-Rivera disagree on whether the 

trial counsel’s note constitutes a matter adverse to RodriguezRivera from outside the record. However, we need not reach that 

question because we conclude that there was no prejudice to 

Rodriguez-Rivera from the inclusion of comment on his clemency 

request. See United States v. Farley, 60 M.J. 492, 493 

(C.A.A.F. 2005) (“We need not decide whether there was error, 

because any error was harmless.”); United States v. Phanphil, 57 

M.J. 6, 11 (C.A.A.F. 2002) (“We need not resolve the conflicting 

interpretations of 18 U.S.C. § 922(a) because any error was 

harmless beyond a reasonable doubt.”). 

Where “matters adverse to the accused from outside the 

record” have been erroneously considered by the convening 

authority, this court has stated: 

[W]e will require appellant to demonstrate 

prejudice by stating what, if anything, 

would have been submitted to “deny, counter, 

or explain” the new matter. . . . We believe 

that the threshold should be low, and if an 

appellant makes some colorable showing of 

possible prejudice, we will give that 

appellant the benefit of the doubt and “we 

will not speculate on what the convening 

authority might have done” if defense 

counsel had been given an opportunity to 

comment. 

United States v. Chatman, 46 M.J. 321, 323-24 (C.A.A.F. 1997) 

(citing Unites States v. Jones, 44 M.J. 242, 244 (C.A.A.F. 

1996); United States. v. DeGrocco, 23 M.J. 146, 148 (C.M.A. 

1987)). Rodriguez-Rivera asserts that the trial counsel 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

27

inaccurately characterized his unsworn statement by stating that 

he showed no remorse. He argues he would have rebutted this 

characterization by showing that “the accused did show remorse 

during his unsworn statement in that he cried and apologized to 

the Navy, his command, and to his shipmates. In addition he 

asked for the mercy of the Court.” 

 Rodriguez-Rivera’s assertions regarding his proposed 

rebuttal to trial counsel’s statements do not rise to a 

“colorable showing of possible prejudice.” Chatman, 46 M.J. at 

324. We have examined the unsworn statement in detail. 

Contrary to Rodriguez-Rivera’s claim, his unsworn statement did 

not express remorse for his misconduct or for his victim. His 

apology was directed to his “shipmates, my command and the Navy” 

and was for any “inconvenience that I caused” rather then for 

any harm to the victim. At no point did Rodriquez-Rivera 

express any regret or similar emotion toward the victim or her 

family. The proposed rebuttal to trial counsel’s statement was, 

in short, inaccurate. Thus, we conclude that whether or not 

there was error in failing to serve trial counsel’s comments 

upon the defense, Rodriguez-Rivera has failed to sustain his 

burden of making a colorable show of prejudice. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

28

V. LEGAL SUFFICIENCY OF THE EVIDENCE 

 A. Factual Background

Specification 3 of Charge III alleges that Rodriguez-Rivera 

took indecent liberties with JK, a female under the age of 

sixteen, by watching pornographic movies with her. JK testified 

that she saw a “sex movie . . . [a]t Rod’s house . . . [i]n his 

bedroom.” She testified that the “sex movie” had a lady with 

red shoes in it and that the lady had long hair. She also 

testified that “[a]ll of [the movies] had ladies and boys.” 

Trial counsel asked her whether she or Rodriguez-Rivera got 

the movie and she responded that she “didn’t know because I saw 

it when I was there. I didn’t know when he bought it.” When 

asked whether she or Rodriguez-Rivera put the movie “in the 

machine to play it” she responded that she did not remember. A 

member asked if “anyone else ever show[ed her] a sex movie any 

other time, except for Mr. Rod” and she answered “no.” A 

pornographic tape was admitted at trial and a portion shown to 

the members containing a scene with a woman with red shoes 

matching JK’s description. 

At the close of the Government’s case, trial defense 

counsel made a motion to dismiss the indecent liberties 

specification and a separate specification alleging, in part, 

that Rodriguez-Rivera made a false official statement by denying 

that he watched pornographic videos while JK was in his home. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

29

Trial defense counsel argued there was no evidence RodriguezRivera watched pornographic movies with the victim or gave a 

false official statement when he stated he “never watched 

pornographic videotapes while JK was in his home.” In making 

findings of fact on the motion, the military judge stated he did 

not find evidence that Rodriguez-Rivera “ever watched 

pornographic videotapes while [JK] was in his home.” He granted 

the defense motion to dismiss the portion of the specification 

alleging that Rodriguez-Rivera had made a false official 

statement regarding this incident. However, the military judge 

declined to dismiss the indecent liberties specification which 

alleged that Rodriguez-Rivera watched a pornographic movie with 

JK. 

 B. Discussion

In determining whether the evidence is legally sufficient, 

we “‘view[] the evidence in the light most favorable to the 

prosecution’” and decide whether “‘any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.’” United States v. Brown, 55 M.J. 375, 385 

(C.A.A.F. 2001) (quoting Jackson v. Virginia, 443 U.S. 307, 319 

(1979)). The specification at issue here alleges that 

Rodriguez-Rivera took indecent liberties with JK by watching 

pornographic movies with her. The Manual for Courts-Martial, 

United States (2005 ed.) (MCM) provides that “[w]hen a person is 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

30

charged with taking indecent liberties, the liberties must be 

taken in the physical presence of the child . . . .” MCM pt. 

IV, para. 87.c(2). We must determine, therefore, whether a 

rationale trier of fact could find beyond a reasonable doubt 

that Rodriguez-Rivera was physically present with JK when she 

watched pornographic movies at his house. 

We first note that the military judge specifically 

concluded that he did not find any evidence Rodriguez-Rivera 

“ever watched pornographic videotapes while [JK] was in his 

home.” Looking at the record in its entirety, we see no 

evidence that could lead a reasonable member to conclude that 

Rodriguez-Rivera watched the pornographic movie “with” JK.3 

While there is evidence to establish that JK watched a 

pornographic movie at Rodriguez-Rivera’s house, she never 

testified that he was present when she did so. She testified 

that she did not know or did not remember how the tape got to 

the house or who put it in the machine to play it. Viewing the 

evidence in the light most favorable to the prosecution, we find 

that there is no basis in the record to conclude that RodriguezRivera was present when JK watched the pornographic videotape. 

 

3

 During her meeting with the Family Advocacy Representative and 

the NCIS agent, JK did state that she watched the movies while 

in bed with Rodriguez-Rivera at his home. The written summary 

of that meeting was admitted as an appellate exhibit but was not 

admitted as a trial exhibit and therefore was not before the 

members. 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

31

Accordingly, we will reverse the lower court and set aside 

the guilty finding for Specification 3 of Charge III. However, 

because we conclude that this error was harmless with regard to 

sentencing we will not order a rehearing or reassessment and 

will affirm the sentence as approved by the lower court. See

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000). 

VI. APPELLATE DELAY 

In analyzing whether appellate delay has violated the due 

process rights of an accused we first look at whether the delay 

in question is facially unreasonable. United States v. Moreno, 

63 M.J. 129, 136 (C.A.A.F. 2006). If it is, then this court 

examines and balances the four factors set forth in Barker v. 

Wingo, 407 U.S. 514, 530 (1972): (1) the length of the delay; 

(2) the reasons for the delay; (3) the appellant’s assertion of 

the right to timely review and appeal; and (4) prejudice. 

Moreno, 63 M.J. at 135-36; United States v. Jones, 61 M.J. 80, 

83 (C.A.A.F. 2005); Toohey v. United States, 60 M.J. 100, 102 

(C.A.A.F. 2004). If we conclude that an appellant has been 

denied the due process right to speedy post-trial review and 

appeal, “we grant relief unless this court is convinced beyond a 

reasonable doubt that the constitutional error is harmless.” 

United States v. Toohey, 63 M.J. __ (24) (C.A.A.F. 2006). 

Whether an appellant has been denied the due process right to a 

speedy post-trial review and appeal, and whether constitutional 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

32

error is harmless beyond a reasonable doubt are reviewed de 

novo. United States v. Cendejas, 62 M.J. 334, 337 (C.A.A.F. 

2006) (constitutional error); United States v. Kreutzer, 61 M.J. 

293, 299 (C.A.A.F. 2005); United States v. Rodriguez, 60 M.J. 

239, 246 (C.A.A.F. 2004) (due process); United States v. Cooper, 

58 M.J. 54, 58 (C.A.A.F. 2003) (due process). 

 As a general matter, we can dispose of an issue by assuming 

error and proceeding directly to the conclusion that any error 

was harmless. See United States v. Gorence, 61 M.J. 171, 174 

(C.A.A.F. 2005) (any error in permitting evidence of preservice 

drug use was harmless); United States v. Lovett, 59 M.J. 230, 

234 (C.A.A.F. 2004) (assuming error in admitting hearsay, the 

error was harmless); United States v. Bolkan, 55 M.J. 425, 428 

(C.A.A.F. 2001) (any error in defense counsel’s concession that 

a punitive discharge was an appropriate punishment was 

harmless). Similarly, issues involving possible constitutional 

error can be resolved by assuming error and concluding that the 

error is harmless beyond a reasonable doubt. See United States 

v. Cuento, 60 M.J. 106, 111 (C.A.A.F. 2004) (assuming that there 

was error and that the error was of constitutional dimension, 

error was harmless beyond a reasonable doubt); see also United 

States v. Saintaude, 61 M.J. 175, 183 (C.A.A.F. 2005) (court 

need not determine whether counsel’s performance was 

constitutionally deficient where it can determine that any such 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

33

error would not have been prejudicial). Thus, in cases 

involving claims that an appellant has been denied his due 

process right to speedy post-trial review and appeal, we may 

look initially to whether the denial of due process, if any, is 

harmless beyond a reasonable doubt. We will apply a similar 

analysis where, even though the denial of due process cannot be 

said to be harmless beyond a reasonable doubt, there is no 

reasonable, meaningful relief available. 

 Assuming that the delay of over six years to complete 

Rodriguez-Rivera’s appeal of right denied him his right to 

speedy review and appeal, we decline to afford additional 

relief. In Moreno, we set forth a non-exhaustive list of the 

types of relief available for denial of speedy post-trial review 

or appeal. 63 M.J. at 143. We have considered the totality of 

the circumstances and the types of relief that may be 

appropriate here, in addition to setting aside the findings of 

guilty to Specification 3 of Charge III. Because RodriguezRivera has served his full term of confinement, reduction of the 

confinement or confinement credits would afford him no 

meaningful relief. Further, reduction of adjudged forfeitures 

would have no meaningful effect in light of the provisions for 

automatic forfeitures. See Article 58b, UCMJ, 10 U.S.C. § 858b 

(2000). Reducing the period of confinement enough to have a 

significant impact upon collected forfeitures would also require 
United States v. Rodriguez-Rivera, No. 05-0270/MC 

34

a dramatic reduction in the period of confinement that is 

unwarranted under the circumstances of this case. 

In coming to this conclusion, we have not lost sight of the 

fact that Rodriguez-Rivera was deprived, for more than six 

years, of the resolution of a legal claim on which he prevailed 

and for which he was entitled to dismissal of certain of the 

guilty findings against him. However, to fashion relief that 

would be actual and meaningful in this case would be 

disproportionate to the possible harm generated from the delay. 

Accordingly, we conclude that no additional relief is 

appropriate or warranted in this case. 

CONCLUSION

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals as to the finding of guilty to Specification 

3 of Charge III is reversed. The finding of guilty to 

Specification 3 of Charge III is set aside and that 

specification is dismissed. The decision of the United States 

Navy-Marine Corps Court of Criminal Appeals as to the remaining 

findings and the sentence is affirmed. 
United States v. Rodriguez-Rivera, No. 05-0270 

CRAWFORD, Judge (concurring in part and in the result): 

 I agree with the majority as to all the issues except Issue 

VI (APPELLATE DELAY) and the affirmance of the remaining 

findings and sentence. I dissociate myself, however, from this 

Court’s analysis of that issue and its conclusion that Appellant 

was denied his due process right to speedy review and appeal. 

This Court’s analysis and conclusion are based on a prospective 

rule set forth in United States v. Moreno, 63 M.J. 129 (C.A.A.F. 

2006), and its misapplication of the Barker v. Wingo, 407 U.S. 

514 (1972), test. See Moreno, 63 M.J. at 144 (Crawford, J., 

concurring in part and dissenting in part).