This opinion is subject to administrative correction before final disposition.

Before 

TANG, LAWRENCE, and STEPHENS

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Vanrowin F. MANLAMBUS

Hospital Corpsman Chief Petty Officer (E-7), U.S. Navy

Appellant

No. 201900080

Decided: 27 May 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judges:

Shane Johnson (arraignment)

Stephen C. Reyes (trial)

Sentence adjudged 29 November 2018 by a general court-martial convened at Joint Base Pearl Harbor-Hickam, Hawaii, consisting of officer members. Sentence approved by the convening authority: reduction to E-6 and a dishonorable discharge.

For Appellant: 

Captain Valonne L. Ehrhardt, USMC

For Appellee:

Major Clayton L. Wiggins, USMC

Lieutenant Timothy C. Ceder, JAGC, USN

Judge STEPHENS delivered the opinion of the Court, in which Senior 

Judge TANG and Judge LAWRENCE joined.
United States v. Manlambus, NMCCA No. 201900080

Opinion of the Court

2

_________________________

This opinion does not serve as binding precedent but 

may be cited as persuasive authority under 

NMCCA Rule of Appellate Procedure 30.2.

_________________________

STEPHENS, Judge:

Appellant was found guilty, contrary to his pleas, of attempted sexual assault of a child and attempted sexual abuse of a child [lewd act], in violation 

of Article 80, Uniform Code of Military Justice [UCMJ].1

Appellant raises five assignments of error [AOE]. Each AOE is raised 

pursuant to United States v. Grostefon2 and we have renumbered them as 

follows: (1) the evidence is legally and factually insufficient; (2) the military 

judge erred when he prohibited Appellant from introducing hearsay testimony from his own recorded interview with special agents from the Naval 

Criminal Investigative Service [NCIS]; (3) the NCIS special agents violated 

Appellant’s constitutional rights when they failed to provide him a rights 

advisement under Miranda v. Arizona;3 (4) Appellant’s trial defense counsel 

[TDC] was ineffective; and (5) NCIS special agents improperly collected 

Appellant’s DNA and fingerprints prior to conviction.4 We find no errors that 

materially prejudiced Appellant’s substantial rights and find the findings and 

sentence to be correct in law and fact. We affirm.

I. BACKGROUND

Appellant was stationed in Hawaii but was sent on temporary additional 

duty [TAD] to Camp Foster in Okinawa, Japan. While TAD, he answered an 

online public message post. The post read, “Okinawa Only HMU”5 (hit me up)

and depicted a jacket studded with jewels and very short ripped women’s 

 

1 10 U.S.C. § 880 (2012).

2 12 M.J. 431 (C.M.A. 1982).

3 384 U.S. 436 (1966).

4 We have considered the fifth AOE and find it to be without merit. See United 

States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).

5 Pros. Ex. 1 at 2; Pros. Ex. 2 at 1.
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3

shorts. Appellant replied, “Are u m or f?” and received back, “F.”6 He learned 

she was also living on Camp Foster and that her name was “Marie.” Marie

claimed to be a 15-year-old student living with her single mother, but was 

actually an NCIS special agent.

Over the course of their online chats, Appellant turned the conversation 

to sexual activity. Despite being told up-front, and repeatedly, that Marie was 

only 15, Appellant questioned her about her sexual experience and discussed 

what sexual acts they could do together, including vaginal intercourse and 

performing oral sex on each other. He also repeatedly requested pictures of 

her breasts.

They made arrangements for Appellant to come to her mother’s apartment while she was at work so they could have oral sex and intercourse. 

Marie requested Appellant bring her “a treat,” either “a snickers or gummy 

bears or both.”7 Appellant got both. When he stepped off the elevator in 

Marie’s apartment building and was looking for her door, NCIS special 

agents were waiting for him and took him into custody. They also seized 

Appellant’s cell phone and the treats he purchased for Marie.

Before interviewing Appellant, NCIS special agents provided him a rights 

advisement under Article 31(b), UCMJ. Appellant waived his rights and 

agreed to an interview. He admitted that he travelled to the apartment with 

the intent to have sex with Marie. But he maintained that he believed she

lied about her age—all four times—and also lied about her identity. He said 

he believed Marie was a dependent spouse and that when she mentioned her 

“mom,” she was really referring to her husband. But a search of Appellant’s 

cell phone showed Internet searches, during the time he was chatting with 

Marie, for “how do you know if a minor is trying to bait you” and “pedobating—scam online predators.”8 He also searched for the NCIS field office 

aboard Camp Foster.

Additional facts are discussed below.

 

6 Id.

7 Pros. Ex. 1 at 46; Pros. Ex. 2 at 91.

8 Pros. Ex. 5 at 1-2.
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II. DISCUSSION

A. The Evidence is Legally and Factually Sufficient

We review Appellant’s convictions for legal and factual sufficiency de novo.9 The test for factual sufficiency is whether “after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses [this Court is] convinced of [A]ppellant’s guilt beyond a reasonable doubt.”10 In conducting this unique appellate function, we take “a fresh, 

impartial 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 

reasonable doubt.”11 When conducting this review, we are “limited to the 

evidence presented at trial.”12 Proof beyond a reasonable doubt does not 

mean, however, that the evidence must be free from conflict.13

When testing for legal sufficiency, we look at “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.”14

To convict Appellant under Article 80, UCMJ,15 the Government must 

prove beyond a reasonable doubt that: (1) Appellant made a certain overt act; 

(2) this amounted to more than mere preparation; (3) it apparently tended to 

effect the commission of a crime; and (4) the act was done with specific intent 

to commit another offense under the UCMJ. Here, the underlying sexual 

 

9 Art. 66, UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).

10 United States v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017) (citation, internal 

quotation marks, and emphasis omitted).

11 Washington, 57 M.J. at 399.

12 United States v. Pease, 75 M.J. 180, 184 (C.A.A.F. 2016) (quoting United States 

v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007)).

13 United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001).

14 United States v. Turner, 25 M.J. 324 (C.M.A. 1987) (citing Jackson v. Virginia, 

443 U.S. 307, 319 (1979)); see also United States v. Robinson, 77 M.J. 294, 297-98 

(C.A.A.F. 2018).

15 10 U.S.C. § 880 (2012).
United States v. Manlambus, NMCCA No. 201900080

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offenses were sexual assault of a child [sexual intercourse and oral sex]16 and 

sexual abuse of a child [various lewd acts].17

The case against Appellant was strong. His own words and actions were 

used to convict him. His travel to the apartment, along with his chats, were 

sufficient for the underlying overt act required for the convictions.

Appellant testified during the trial. He admitted he travelled to the 

apartment to have sex, but maintained he believed Marie was lying about her 

age and identity as part of an online fantasy experience. He testified that 

when he received pictures of “Marie”—actually pictures of a female law 

enforcement agent who was then 21 years old18—he believed she was an 

adult dependent spouse instead of a 15-year-old girl.19

However, this was belied by the fact that Appellant searched the Internet

for information on how to know if a minor was trying to “bait” him. He also 

repeatedly asked Marie to provide specifically posed photographs, and a “live” 

photograph in one messaging application, to prove she was a real person. He 

testified that he was “concerned of being exploited” or “extorted.”20 Yet, 

despite these concerns, Appellant never attempted to even temporarily 

suspend the “fantasy” chat with Marie and explain that he was amenable to 

adulterous sex with her if she was a dependent spouse or adult, but not if she 

were, in fact, a 15-year-old girl. He also repeatedly recognized the risk of any 

eventual sexual relationship and worried that Marie might be affiliated with 

law enforcement. Appellant explained on cross-examination that this was 

solely predicated on his fear of getting in trouble for adultery. Appellant 

certainly is not required to prove his innocence, but his view of the plain facts 

and evidence is simply not credible.

 

16 10 U.S.C. § 920b (2012).

17 The lewd acts were Appellant saying, (1) “Which one do you like better? Giving 

or receiving?” in reference to oral sex, (2) “Doggy or missionary?” (3) “I was thinking 

maybe you would like some receiving and doggy,” (4) I dont wanna cum in you you 

k[n]ow, Lol,” “Pull out is the way,” (5) “When im about to come, you would suck me 

till I cum...would like to have that feeling,” and (4) “Ill try to make you come while 

licking you. That would be nic[e].” Pros. Ex. 2 at 15, 34, 38, 39, 71, and 72, respectively; 10 U.S.C. § 920b(c) (2012). 

18 Record at 287-88.

19 Id. at 499-500.

20 Id. at 512.
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Appellant also argues he was entrapped. For the Government to entrap 

someone, it must first engage in some kind of inducement.21 Inducement 

requires more than the Government simply providing the “opportunity or 

facilities to commit the crime” but must rise to the level of “conduct that 

creates a substantial risk that an undisposed person or otherwise law-abiding 

citizen would commit the offense.”22 But the Government may still obtain a 

conviction if it proves that an accused is predisposed to such conduct, which 

can be shown when a “person accepts a criminal offer without being offered 

extraordinary inducements.”23

Appellant faced no extraordinary inducements from the Government. He 

introduced the topic of sex after Marie told him she was only 15 years old. 

Appellant repeatedly drove the conversation with specific sexual activities he 

wanted to do with Marie. His own actions and words demonstrated his 

predisposition.

We find the evidence for the convictions to be factually sufficient and in 

reviewing the evidence “in the light most favorable to the prosecution”24 we 

also find that a reasonable factfinder could have found all the essential 

elements beyond a reasonable doubt. The convictions are both factually and 

legally sufficient.

B. The Military Judge Did Not Abuse His Discretion by Preventing 

Appellant from Offering Hearsay Testimony

“We review a military judge’s decision to admit or exclude evidence for 

abuse of discretion.”25 A military judge abuses his discretion when his findings of fact were “clearly erroneous or if his decision is influenced by an 

 

21 United States v. Howell, 36 M.J. 354, 359-60 (C.A.A.F. 1993).

22 United States v. Hall, 56 M.J. 432, 436 (C.A.A.F. 2002) (citations and quotation 

marks omitted).

23 United States v. Bell, 38 M.J. 358, 360 (C.M.A. 1993) (quoting United States v. 

Evans, 924 F.2d 714, 718 (7th Cir. 1991)).

24 Rosario, 76 M.J. 117 (quoting United States v. Gutierrez, 73 M.J. 172, 175 

(C.A.A.F. 2014)).

25 United States v. Brewer, 61 M.J. 425, 428 (C.A.A.F. 2005).
United States v. Manlambus, NMCCA No. 201900080

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erroneous view of the law.”26 “The abuse of discretion standard calls for more 

than a mere difference of opinion.”27

At trial, part of Appellant’s strategy was to present himself as someone 

without consciousness of guilt and with nothing to hide. He highlighted his 

cooperation with law enforcement, specifically that he consented to a search 

of his cell phone and his barracks room. He also wanted to highlight that he 

waived his Article 31(b), UCMJ, rights, did not request an attorney, and 

voluntarily agreed to be interviewed by NCIS special agents.

Appellant testified on direct examination that he was advised of his rights 

when he was brought to the NCIS office. His TDC then asked him, “Did you 

understand at that time you could have asked for a lawyer?”28 The Government objected to this question. Appellant conceded to the military judge the 

statements were hearsay, though he did not concede the objection.29 The 

military judge sustained the Government’s objections to that question and 

the potential question of “Did you waive your Article 31(b) rights?” The 

military judge also did not allow Appellant to discuss how he “fully cooperated” with NCIS,30 though this had already been specifically elicited from one of 

the NCIS special agents on cross-examination.31 But the military judge did 

allow Appellant to offer evidence that he consented to a search of his phone 

and his room.32

Military Rule of Evidence [Mil. R. Evid.] 801(c) defines hearsay as “a 

statement that the declarant does not make while testifying at the current 

trial or hearing” and is offered “in evidence to prove the truth of the matter 

 

26 United States v. Dooley, 61 M.J. 258, 263 (C.A.A.F. 2005) (citation and internal 

quotation marks omitted).

27 United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F. 2014) (citation and internal 

quotation marks omitted).

28 Record at 514.

29 We do not consider this to be a waiver under United States v. Davis, 79 M.J. 

329, 331 (C.A.A.F. 2020). We also do not consider this concession to be ineffective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) due to the 

lack of any prejudice.

30 Id. at 521.

31 Id. at 382-83.

32 Id.
United States v. Manlambus, NMCCA No. 201900080

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asserted in the statement.”33 Without an exception under the Military Rules 

of Evidence or other applicable federal statute, hearsay is not admissible.34

In this instance, despite Appellant’s TDC concession that the questions 

called for hearsay, they did not. Appellant testifying that he waived his rights 

under Article 31(b) would merely be a statement describing a previous verbal 

act. No issue arises as to whether his out-of-court statement is true or not. 

The significance is merely that the verbal act was accomplished by virtue of 

the words being said. For the question of whether at the time of his interview 

Appellant knew he had the right to ask for a lawyer, this answer is also not 

hearsay. It does not call for an out-of-court statement from Appellant. The 

military judge abused his discretion by addressing the objection in the context of hearsay and ruling that the questions would elicit hearsay. The 

evidence would have been inadmissible on another grounds, but the military 

judge did not evaluate the evidence using the proper legal framework. 

Nonconstitutional errors from an evidentiary ruling are reviewed “by 

weighing: ‘(1) the strength of the Government’s case, (2) the strength of the 

[D]efense case, (3) the materiality of the evidence in question, and (4) the 

quality of the evidence in question.’ ”35 The Government’s case was strong and 

relied on Appellant’s own words and actions. His defense that he was lawabiding and cooperative with NCIS was of marginal value in explaining his 

words and actions. Even though the military judge sustained objections to 

these two questions, Appellant was still able to present evidence that he 

cooperated with NCIS. It was apparent that he consented to a search of his 

cell phone and his barracks room. Also, the members knew that, in the 

opinion of the NCIS special agent who interviewed him, Appellant was 

“cooperative.”36 With that, we can find no prejudice to Appellant.

Finally, Appellant asserts this alleged error prohibited the members from 

viewing the video of his NCIS interview. But this interview was never even 

offered at trial by either the Government or Appellant.

 

33 Mil. R. Evid. 801(c).

34 Mil. R. Evid. 802.

35 United States v. Bowen, 76 M.J. 83, 89 (C.A.A.F. 2017) (quoting United States 

v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999)).

36 Record at 382-83.
United States v. Manlambus, NMCCA No. 201900080

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C. Appellant’s Constitutional Rights Were Not Violated When He Did 

Not Receive a Rights Warning Under Miranda v. Arizona

After NCIS special agents apprehended Appellant, they interviewed him. 

Appellant was advised of his rights under Article 31(b), UCMJ.37 These 

include a suspect’s right to be informed of the nature of the accusation, to be 

advised that he does not have to make any statements concerning the accusation, and that his statement may be used as evidence against him at a courtmartial. The unique culture of the military can lead to “subtle,” and sometimes not-so-subtle, “pressures which exist in military society”38 on a service 

member to answer questions from a superior, or even a civilian in military 

law enforcement, such as an NCIS special agent.39 Article 31(b) may be the 

most widely-litigated Article in the UCMJ. There is no doubt Appellant 

received an Article 31(b) rights advisement. But Appellant now argues he 

was also entitled to “Miranda rights” from the landmark Supreme Court case 

of Miranda v. Arizona.40

We review claims of constitutional error de novo.41 Because this alleged 

error was never objected to at trial, it is forfeited.42 Forfeited constitutional 

errors are reviewed for plain error.43 A plain error is one that is “plain, or 

clear, or obvious” and “resulted in material prejudice to substantial rights.”44

If constitutional error is found, the Government “bears the burden of estab-

 

37 10 U.S.C. § 831(b) (2012).

38 United States v. Jones, 73 M.J. 357, 360 (C.A.A.F. 2014) (quoting United States 

v. Duga, 10 M.J. 206, 209 (C.M.A. 1981)).

39 United States v. Oakley, 33 M.J. 27, 31 (C.A.A.F. 1991) (citing United States v. 

Penn, 39 C.M.R. 194 (U.S.C.M.A. 1969)).

40 384 U.S. 436 (1966).

41 United States v. Busch, 75 M.J. 87, 91 (C.A.A.F. 2016) (citing United States v. 

Castillo, 74 M.J. 160, 165 (C.A.A.F. 2015)).

42 United States v. Vazquez, 72 M.J. 13, 17 (C.A.A.F. 2018) (citing United States v. 

Harcrow, 66 M.J. 154, 158 (C.A.A.F. 2008)).

43 United States v. Barrazamartinez, 58 M.J. 173, 175 (C.A.A.F. 2003) (citing 

United States v. Powell 49 M.J. 460 (C.A.A.F. 1998)).

44 United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (citation and internal

quotation marks omitted).
United States v. Manlambus, NMCCA No. 201900080

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lishing that any constitutional error is harmless beyond a reasonable 

doubt.”45

The Supreme Court’s 5-4 decision in Miranda created a new right not 

previously found in the Fifth Amendment and applied it to the states.46

Ernesto Miranda confessed to Arizona police that he kidnapped and raped an 

18-year-old woman. But his confession was made without an attorney present. Because of this, the Court overturned his conviction and held that 

statements obtained during custodial interrogations were inadmissible 

unless, prior to questioning, a person in custody was “informed in clear and 

unequivocal terms that he has the right to remain silent”47 and he was given 

an “explanation that anything said can and will be used against the individual in court.”48 Just two years after Miranda, Congress enacted 18 U.S.C. 

§ 3501 as part of a large omnibus crime bill,49 to restore an individual test of 

“voluntariness” to confessions.50 The U.S. Department of Justice, beginning 

in the mid-1990s, “steadfastly refused to enforce the provision” before asserting “without explanation, that the provision [was] unconstitutional.”51 The 

statute was considered by the Supreme Court in Dickerson v. United States.52

A divided Court held that Miranda prevailed over Congressional authority

largely because Miranda was “embedded in routine police practice” and had 

become “part of our national culture.”53

 

45 United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004) (citing Chapman v. 

California, 386 U.S. 18, 24 (1967)).

46 See, e.g., Miranda, 384 U.S. at 491-99; Stansbury v. California, 511 U.S. 318 

(1994); Minnick v. Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 

675 (1988); Edwards v. Arizona, 451 U.S. 477 (1981).

47 Miranda, 384 U.S. at 467-68.

48 Id. at 469.

49 Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, 82 Stat. 

197 (codified at 34 U.S.C. § 10101 et seq.).

50 Pub. L. No. 90-351, Title II, § 7-1(a), 82 Stat. 210 (June 19, 1968) (codified at 18 

U.S.C. § 3501).

51 United States v. Dickerson, 166 F.3d 667, 671 (4th Cir. 1999), rev’d, Dickerson

v. United States, 530 U.S. 428 (2000).

52 530 U.S. 428.

53 Id. at 443.
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None of this legal, social, or political upheaval impacted military justice.

Article 31(b) warnings predated Miranda54 and was a statute rather than a 

judicial creation. Article 31(b) warnings actually offer more protections for an 

accused than do the Miranda warnings.55 Any Miranda warnings Appellant 

would have received would have been superfluous. Miranda warnings are 

also only for those who are in “custodial interrogation.”56 When he was 

interviewed by NCIS and made his statements, Appellant was not then in 

custody and was free to go at any time. Finally, generally speaking, Miranda 

warnings are for civilian courts and Article 31(b) warnings are for courtsmartial.57 And, most notably, the Government did not even offer Appellant’s 

statements to NCIS as evidence at trial, and they were not admitted. We find

no error.58

D. Appellant’s Trial Defense Counsel Was Not Ineffective

This court reviews claims of ineffective assistance of counsel de novo.59

When reviewing such claims, we follow the two-part test outlined in Strickland v. Washington.60 “In order to prevail on a claim of ineffective assistance

of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.”61

 

54 Article 31 was ratified as part of the new Uniform Code of Military Justice in 

1950, replacing the Articles for the Government of the Navy and the Army’s Articles 

of War. The form of the right to remain silent during an investigation, or to have a 

rights advisement, reaches back to the 1948 legislation amending the Articles of War, 

popularly known as the Elston Act. Selective Service Act of 1948, Pub. L. No. 80-759 

§§ 201-46, 62 Stat. 604, 627-44 (1948), and even further to Article of War 24 enacted 

in 1916. Act of August 29, 1916, Pub. L. No. 64-242, § 3, 39 Stat. 654.

55 See, e.g., United States v. Baird, 851 F.2d 376, 383 (D.C. Cir. 1988) (“The protections of Article 31(b) are broader than Miranda warnings in that a suspect must 

receive warnings even if the suspect is not in custody.”).

56 Miranda, 384 U.S. at 467-68.

57 United States v. Newell, 578 F.2d 827, 832-33 (9th Cir. 1978) (Article 31(b) 

“do[es] not purport to apply to federal court proceedings.”)

58 In addition, we find that any possible failure to object to a lack of a Miranda

warning by Appellant’s TDC was not ineffective assistance of counsel.

59 United States v. Mazza, 67 M.J. 470, 474 (C.A.A.F. 2009).

60 466 U.S. 668, 687 (1984).

61 United States v. Green, 68 M.J. 360, 361-62 (C.A.A.F. 2010) (citing Strickland, 

466 U.S. at 687; Mazza, 67 M.J. at 474).
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Appellant makes three separate allegations of ineffective assistance of 

counsel. Two involve a Defense expert assistant in forensic psychology who 

conducted a forensic examination of Appellant, to include a polygraph examination. Appellant argues his TDC was ineffective when he failed to offer the 

expert assistant’s opinion that Appellant’s interview with the NCIS special 

agents was coercive. He also argues his TDC was ineffective when he failed to 

offer the results of the polygraph examination. Finally, Appellant argues his 

TDC was ineffective when he did not attempt to elicit testimony from one of 

the NCIS special agents who, soon after apprehending Appellant, told him he 

did not believe he was a “bad person,” and also told Appellant’s co-workers he 

did not believe Appellant was a “pedophile” but merely an “opportunist.”62

We need not determine “whether counsel’s performance was deficient . . . 

[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice.”63 “When a claim for ineffective assistance of counsel is 

premised on trial defense counsel’s failure to move the court to take some 

action, “an appellant must show that there is a reasonable probability that 

such a[n] [action] would have been meritorious.”64 “A reasonable probability

is a probability sufficient to undermine confidence in the outcome.”65 “Failure

to raise a meritless argument does not constitute ineffective assistance.”66

These actions, if they had been taken, would not have been meritorious, nor

was their absence prejudicial to Appellant.

1. The failure to introduce the expert’s opinion that the NCIS interview 

was “coercive” was not prejudicial.

Appellant argues his TDC was ineffective because he failed to offer the 

expert assistant’s opinion that the NCIS special agents coerced Appellant 

during his interview. Even if that were the case—and Appellant never 

explains what the special agents did to “coerce” him—the evidence of his 

misconduct was in his online messages to Marie, his possession of the treats

she requested, and his appearance at the designated place and time. Even if 

 

62 Appellant’s Br. at 23.

63 Strickland, 466 U.S. at 697.

64 United States v. McConnell, 55 M.J. 479, 482 (C.A.A.F. 2001) (quoting United 

States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)).

65 Strickland, 466 U.S. at 694. 

66 Napoleon, 46 M.J. at 284 (quoting Boag v. Raines, 769 F.2d 1341, 1344 (9th 

Cir. 1985)).
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Appellant’s strategy at trial was to rebut some of his statements during the 

interview by arguing coercion or “false confession,” this required Appellant’s

statements to be admitted into evidence by the military judge. They were not 

in this case. A TDC cannot be ineffective for failing to rebut evidence that 

was never offered by the Government in the first place. We find no possible 

prejudice to Appellant.

2. The failure to introduce the polygraph report was not prejudicial

Appellant’s expert assistant conducted a polygraph examination. Under 

Military Rule of Evidence 707, polygraph examinations are generally inadmissible for the simple reason that they are unreliable as indicators of 

whether someone is telling the truth. Scientifically speaking, for a finder-offact ascertaining the veracity of a statement, a polygraph machine may as 

well be an office copier. Worse still, results from a polygraph examination can 

be dangerously misleading if given the imprimatur of scientific accuracy.

In some circumstances, this kind of evidence may be admitted, such as 

when “the facts and circumstances of a polygraph examination procedure 

[are] offered to explain the reason or motivation for a confession.”67 For 

example, an accused may reference how the Government’s administered 

polygraph examination indicated “deception,” which led the accused to make 

a false confession. That is because it provides context for the confession and 

the accused’s motivation for making the statements at issue, by directly 

attacking the accuracy of the polygraph. The purpose behind the Rule is to 

keep a fact-finder from relying on a polygraph for the truth of its result 

instead of the evidence presented.

Here, it appears Appellant wanted to offer the results of his polygraph to 

show “no deception” for (1) whether he had sexual contact with any other 

minors, (2) whether he was being deceptive about any other illicit sexual 

behavior he was asked about during the exam, and (3) whether he committed 

“any other sex crimes.”68 The second and third question are of no relevance. 

The first question may be probative of Appellant’s lack of predisposition in 

advancing his entrapment defense. But even if it were, the admission of the 

polygraph results to bolster his own testimony is still impermissible because 

it presupposes and advances the reliability of the results of the polygraph 

examination. 

 

67 United States v. Kohlbek, 78 M.J. 326, 329 (C.A.A.F. 2019).

68 Appellant’s Br. at 23. 
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14

In United States v. Wheeler,69 we held the military judge abused his discretion by prohibiting appellant from introducing evidence concerning the 

results of multiple polygraph examinations. They were used as an “investigatory tool”70 leading to, what appellant claimed, was a false confession. Because “the appellant’s understanding and perception of those polygraph 

examinations [were] important factual matters related to his confession”71 we 

held that that he had the right to represent evidence attacking the voluntariness of his statements.

We not only find Appellant’s TDC was not ineffective to fail to move for its 

admission, but we also find that even if it had been (wrongly) admitted, it 

would have had little to no relevance or impact on the members. The issue 

was whether he had attempted to sexually assault and sexually abuse a 

specific purported child, not whether he sexually abused other children.

3. The failure to cross-examine a Government witness about his opinion of 

Appellant was not prejudicial

One of the NCIS special agents is alleged to have told Appellant’s coworkers that he did not think Appellant was a “pedophile” but was rather “an 

opportunist.” The same special agent told Appellant he did not believe he was 

a “bad person.” Appellant asserts his counsel was ineffective for not eliciting 

this testimony. We disagree.

There was no basis for the military judge to allow the special agent to answer these questions if the basis was to offer character evidence on behalf of 

Appellant. Law enforcement agents say a lot of things to suspects and witnesses. Most of the time, agents are trying to get a suspect or a witness to 

disclose information—such as in the famous “Christian burial case.”72 Even if 

this evidence qualified as “good military character” evidence—and it clearly 

was not—it would have been inadmissible under Military Rule of Evidence 

404(a)(2)(vii), which prohibits use of such evidence for attempts to commit an 

offense under Article 120, UCMJ. And even if this were offered for general 

good character and not specifically good military character, the witness would 

still have lacked the necessary foundation due to the special agent having not 

had sufficient opportunity to observe Appellant and form any kind of relevant 

 

69 66 M.J. 590 (N-M. Ct. Crim App. 2008).

70 Id. at 595.

71 Id.

72 Brewer v. Williams, 430 U.S. 387 (1977); Nix v. Williams, 467 U.S. 431 (1984).
United States v. Manlambus, NMCCA No. 201900080

Opinion of the Court

15

opinion of him. And for that reason, the omission of this evidence, even if 

improper, would not undermine our confidence in the outcome, so there is no 

prejudice from its omission. Even if this was actually the special agent’s

genuine opinion of Appellant—which is highly unlikely—it would have 

carried little to no weight with any of the members due to its non-existent 

foundation.

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel, 

we have determined the approved findings and sentence are correct in law 

and fact and find no error materially prejudicial to Appellant’s substantial 

rights occurred. Arts. 59, 66, UCMJ. Accordingly, the findings and sentence 

as approved by the convening authority are AFFIRMED

Senior Judge TANG and Judge LAWRENCE concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court