UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman GREGORY D. WEISS

United States Air Force

ACM 38611

1 December 2015

Sentence adjudged 27 November 2013 by GCM convened at Hurlburt Field, 

Florida. Military Judge: Ronald A. Gregory.

Approved Sentence: Bad-conduct discharge, confinement for 18 months,

forfeiture of all pay and allowances, and reduction to E-1.

Appellate Counsel for Appellant: Major Jeffrey A. Davis and Captain 

Lauren A. Shure.

Appellate Counsel for the United States: Major Mary Ellen Payne; Gerald 

R. Bruce, Esquire; and Mr. Tyler Smith (civilian intern).

1

Before

ALLRED, MITCHELL, and MAYBERRY

Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent 

under AFCCA Rule of Practice and Procedure 18.4.

MAYBERRY, Judge:

At a general court-martial composed of officer members, Appellant was convicted, 

contrary to his pleas, of possessing and viewing child pornography in violation of Article 

134, UCMJ, 10 U.S.C. § 934. The court sentenced Appellant to a dishonorable 

discharge, confinement for 18 months, forfeiture of all pay and allowances, and reduction 

 

1 Mr. Tyler Smith was not a licensed attorney during his participation in this case. In accordance with AFCCA 

Rules of Practice and Procedure 6.1, he was supervised by attorneys admitted to practice before this court.
2 ACM 38611

to E-1. The convening authority lessened the punitive discharge to a bad-conduct 

discharge, but otherwise approved the sentence as adjudged.2 

On appeal, Appellant raises the following assignments of error: (1) the evidence 

was legally insufficient on account of facially defective specifications that resulted in 

ambiguous findings, (2) the evidence was factually and legally insufficient to support 

guilt beyond a reasonable doubt,3(3) the military judge erroneously permitted the 

Government to introduce uncharged misconduct both during findings and sentencing 

without properly instructing the members on any limited use of such evidence, (4) the Air 

Force Office of Special Investigations (AFOSI) unlawfully searched Appellant’s 

computers, (5) trial defense counsel were ineffective for failing to challenge the search of 

Appellant’s computers, (6) the military judge abused his discretion by allowing 

statements in violation of the spousal privilege, and (7) Appellant should be granted 

modest relief due to the Government’s repeated violations of his privacy rights in its 

handling of his mental health records. We disagree and affirm the findings and sentence.

Background

On or about 12 July 2012, Appellant and his wife (TW) were involved in a 

domestic dispute at their on-base home at Hurlburt Field, Florida. This was not the first 

such event in their brief marriage. Security Forces (SFS) responded to the home, and in 

addition to her claim of assault, TW alleged Appellant possessed child pornography on 

his computer. AFOSI was contacted, and they too went to the house. Despite TW’s 

allegations, she was unwilling to be interviewed or turn over any computer. The next 

day, TW provided two computers to SFS. AFOSI subsequently received one of these two 

computers on 25 July and the second on 30 July. On 26 July 2012, TW agreed to be 

interviewed by AFOSI and stated that Appellant had told her there was child 

pornography on one of the computers, that he had searched online for child pornography, 

and that he needed to clean the computer. TW had not personally seen any child 

pornography on the computer. Sometime between 26 and 30 July 2012, after AFOSI 

obtained the computers, but before they performed any search of the computers, the 

computers were returned to Appellant. Shortly thereafter, AFOSI sought and obtained 

probable cause search authorization from a military magistrate and seized the computers 

on 1 August 2012.

 

2

Post-trial processing delay was a significant basis for the change in discharge characterization. The length of time 

from announcement of sentence to convening authority action was 181 days. Appellant sought clemency in the 

form of a reduction in confinement. He alleged error in that he had met a parole board without the benefit of having 

a record of trial, his ability to appeal his convictions had been delayed, and the delay added to his anxiety. The 

addendum to the staff judge advocate’s recommendation recommended substituting a bad-conduct discharge for the 

dishonorable discharge considering all matters of record, particularly the post-trial delay. Appellate counsel did not 

request further relief pursuant to United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F. 2006), or United States v.

Tardif, 57 M.J. 219 (C.A.A.F 2002), and we do not believe that additional relief is warranted. 

3 Appellant raises this issue pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982). 
3 ACM 38611

Contemporaneous with his conversations with his wife, Appellant also made 

statements to Staff Sergeant (SSgt) AS, a friend and co-worker who was also a friend of 

TW. Appellant divulged to SSgt AS, in the presence of others, that he had been 

kidnapped and forced to do things with younger kids and he thought it was recorded. 

Appellant also told SSgt AS that he wanted to try to figure out if those videos were online 

so he searched for similar images online. Appellant was uncomfortable and nervous after 

law enforcement seized his laptops and told SSgt AS that he wanted them returned. After 

they were returned, he mentioned to SSgt AS that he needed to perform a “dry scrub.” 

Forensic analysis of both hard drives from Appellant’s computers revealed images 

of suspected minors engaged in sexually explicit conduct (child pornography).

4

The 

forensic analyst also produced an Internet history report and a “link” file report. These 

reports established that a number of files with naming conventions indicative of child 

pornography had been downloaded from a peer-to-peer file sharing program and opened 

on the computer in 2009. None of the files named in the Internet history or “link” reports 

could definitely be associated with the images offered.

Pretrial motion litigation involved what images would be admitted, including a 

request to exclude any files found in unallocated space of Appellant’s computers. Trial 

defense counsel argued that files found in unallocated space provide no information as to 

when they were created, when they were deleted, the source from which they were 

downloaded, or if they were ever viewed. During oral argument on the motion, the 

defense expanded its objection to include a statute of limitations basis for excluding these 

images. The military judge ruled that there was circumstantial evidence that the offenses 

occurred within the five-year statute of limitations. The military judge also ruled that the 

issue of whether files contained within unallocated space constituted possession was a 

factual question for the finder of fact and there was sufficient evidence for it to go to the 

members.

Additionally, two images found in allocated space, one of which was “last 

written”5in May 2008, were offered as non-sexually explicit photos of a minor who 

appeared to be the same minor depicted in one of the sexually-explicit videos. These 

were offered for two reasons: (1) to show absence of mistake/proof of knowledge under 

Mil. R. Evid. 404(b) and (2) to establish circumstantial evidence that Appellant exercised 

dominion and control over the file—represented by report item number four of 

Prosecution Exhibit 3—during the charged time frame. The military judge admitted them 

under Mil. R. Evid. 404(b) and later allowed them to be used as circumstantial evidence.

 

4

Initially, Appellant was charged with three specifications each of possessing and viewing child pornography. 

These specifications involved two computers. At trial, the Government withdrew all but one specification each of 

possessing and viewing child pornography. These specifications involved images located on a single computer. As 

a result, the proffered number of images went from 23 to 11. No specific images were charged. 

5 The expert witness testified that “last written” indicates that the file was viewed in that format on the date 

associated with the thumbs.DB file. This record is not impacted by antivirus or malware scans, which would modify 

the “last accessed” date recorded. 
4 ACM 38611

At trial, the Government offered 11 suspected child pornography images, the 

“link” file report, the Internet analysis report, and statements made by Appellant. In 

addition to the statements made to his wife and SSgt AS, the Government offered 

statements made by Appellant to his First Sergeant regarding what might be on his 

computer and to another military member confirming that there had been child 

pornography on his computer put there by his wife, but he deleted it. 

The members found Appellant guilty of possessing and viewing images in the 

continental United States and Italy but not guilty of possessing and viewing images in 

Iraq. Trial defense counsel moved to combine the offenses for sentencing purposes. The 

military judge granted that motion. 

Additional facts necessary to resolve the assigned errors are included below.

Sufficiency of Evidence

We review issues of factual sufficiency de novo. Article 66(c), UCMJ, 10 U.S.C. 

§ 866(c); United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). 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, [we are] convinced 

of the [appellant]’s guilt beyond a reasonable doubt.” United States v. Turner, 25 M.J. 

324, 325 (C.M.A. 1987). In conducting this unique appellate role, 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.”

Washington, 57 M.J. at 399.

The test for legal sufficiency of the evidence is “whether, considering the evidence 

in the light most favorable to the prosecution, a reasonable factfinder could have found 

all the essential elements beyond a reasonable doubt.” Turner, 25 M.J. at 324. “[I]n 

resolving questions of legal sufficiency, we are bound to draw every reasonable inference 

from the evidence of record in favor of the prosecution.” United States v. Barner, 56 

M.J. 131, 134 (C.A.A.F. 2001).

The record shows that the members were required to determine whether one or 

more images constituted sexually explicit conduct based on the definition and 

explanation given by the military judge. Appellant contends for the first time that his 

convictions in violation of Article 134, UCMJ, were legally insufficient because the 

offense charged was possession and viewing of multiple images of “a minor”—indicating 

one minor—and the images admitted were of more than one minor. Appellant relies on 

United States v. Walters, 58 M.J. 391, 395 (C.A.A.F. 2003), for the proposition that since 

there is no way to determine which minor was the basis for the panel members’ finding of 
5 ACM 38611

guilty, the general verdict is ambiguous and consequently we are unable to affirm. We 

disagree.

Throughout the trial there was no assertion by trial defense counsel that their 

understanding of the offenses charged involved allegations of viewing multiple 

depictions of only a single minor. The evidence provided in discovery and offered and 

admitted at trial clearly depicted multiple minors engaging in sexually explicit conduct. 

At no time during the pretrial motions involving admission of the images did the defense 

assert that images of more than one child would be “uncharged misconduct.” 

During oral argument on the motion in limine to exclude images found in 

unallocated space, the defense challenged the ability of the unallocated evidence to 

establish Appellant knowingly possessed or viewed the deleted images or any other child 

pornography. The majority of the Government’s evidence was circumstantial other than 

numerous statements by Appellant. 

Appellant’s hard drive contained one depiction of child pornography in the 

allocated space, which was found in the art cache folder of Media Player.6 Appellant’s 

computer also had multiple video depictions of child pornography in the unallocated 

space.

7

 According to the expert witness, data on unallocated space is not actually 

removed; it is merely designated as “unallocated” space which can then be overwritten at 

a later time, and one cannot retrieve images on unallocated space without a special 

computer retrieval program. The average computer user would not have such a program 

and Appellant did not have that type of program on his computer. The expert witness 

acknowledged that there is no way to tell how or when an image or data in unallocated 

space was so designated or by whom. 

The Government presented strong circumstantial evidence that Appellant was the 

individual who was using the computer during the relevant time period of May 2008 and 

March 2009 when images number one and number four of Prosecution Exhibit 3 were 

previewed and/or downloaded. The operating system was registered to Appellant and 

one profile was tied to the owner. That profile was password protected. The expert 

witness testified that the “link” files report and Internet history analysis report showed 

Appellant’s OWNER profile associated with downloaded uniform resource locators 

(URLs) consistent with naming conventions of child pornography, establishing that he 

accessed or opened said URLs between May 2008 and March 2009. Additionally, 

 

6 An art cache file is created when the user opens a file or video using Media Player. The system creates a file using 

images associated with the file. This cache file will remain even after the original file or video is deleted.

Thumbnails will also remain in the “thumb cache” even after the original file or picture was deleted.

7 Due to software issues, this court was unable to view seven of the video files contained on the sealed disk 

submitted with the record of trial. However, there was a “screen capture” for each of these items which clearly 

depict minors engaged in sexual acts and suggestive poses. Additionally, each item was described on the record and 

the record does not indicate that the members were unable to view the files at the time of trial. 
6 ACM 38611

Appellant told both his wife and SSgt AS that he had downloaded child pornography and 

that it was still on the computer. We find sufficient evidence to conclude that Appellant 

possessed and viewed report items number one and number four of Prosecution Exhibit 3,

which contain depictions of minors engaging in sexually explicit conduct. These two 

images alone would support the finding that Appellant knowingly possessed at least two 

images of child pornography during the charged time frame. 

We conclude the evidence is both factually and legally sufficient to establish 

Appellant knowingly possessed at least two images of child pornography as early as May 

2008 and viewed these videos while they were downloading. Having evaluated the entire 

record of trial, we are, therefore, convinced Appellant’s conviction for viewing one or 

more visual depictions of minors engaged in sexually explicit conduct is legally and 

factually sufficient, based solely on these two images. But, in this case, there were nine 

additional images 

With regard to the nine additional videos offered, all of these were found in 

unallocated space, rather than in locations where computer users typically save or store 

files. The expert witness testified that for information to be found in unallocated space it 

must have been on the system at one point in time and then deleted. The expert witness 

did not find the original photographs or videos that resulted in the creation of these files, 

could not determine the file names of the original photographs or videos that resulted in 

these files, or when a user downloaded or viewed those items. While it is true that these 

files were found in areas of the computer that an average user could not access without 

specialized computer software, none of which was found on Appellant’s computer, there 

was direct evidence from Appellant’s statements that he knew images were still on his 

computer and he “needed to magnetically erase them” and do a “hard drive scrub.” Cf.

United States v. Sanchez, 59 M.J. 566, 570 (A.F. Ct. Crim. App. 2003) (upholding a 

possession conviction based on deleted files and files located in the computer’s cache 

based on other evidence, including the accused’s relative sophistication in computer 

matters), aff’d in part, rev’d in part on other grounds, 60 M.J. 329 (C.A.A.F. 2004). But 

see United States v. Flyer, 633 F.3d 911, 919–20 (9th Cir. 2011) (holding that evidence 

was legally insufficient to prove knowing possession of child pornography in unallocated 

space); United States v. Moreland, 665 F.3d 137, 154 (5th Cir. 2011) (refusing to find 

constructive possession of child pornography in unallocated space without additional 

evidence of the defendant’s knowledge and dominion or control of the images); United 

States v. Kuchinski, 469 F.3d 853, 863 (9th Cir. 2006) (holding that a defendant who 

lacks knowledge about and access to cache files should not be charged with possessing 

child pornography images located in those files without additional evidence of dominion 

and control over the images).

We have considered the elements of the charged offense. We have considered the 

evidence in the light most favorable to the prosecution and find the evidence legally 

sufficient to support the conviction that Appellant knowingly possessed and viewed 
7 ACM 38611

multiple images of minors engaged in sexually explicit conduct. Moreover, having made 

allowances for not having personally observed the witnesses, we are ourselves convinced 

of Appellant’s guilt beyond a reasonable doubt of the approved charge and specifications.

Uncharged Misconduct

Appellant continues his allegation that he was alleged to have only possessed and 

viewed images of a single minor by asserting that the military judge erroneously 

permitted the introduction of “uncharged misconduct”—images of more than one 

minor—in both the findings and sentencing portions of the trial without properly 

instructing the panel members on the limited uses of that evidence. Appellant now 

asserts that there was no Mil. R. Evid. 404(b) analysis done and correspondingly no 

limiting instructions provided.

A military judge’s decision to admit evidence is reviewed for an abuse of 

discretion. United States v. Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010). Failure to object 

forfeits appellate review absent plain error. United States v. Eslinger, 70 M.J. 193, 

197–98 (C.A.A.F. 2011); Rule for Courts-Martial (R.C.M.) 1001(b)(2). “To prevail 

under a plain error analysis, [the appellant bears the burden of showing] that: ‘(1) there 

was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a 

substantial right.’” United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005) (quoting 

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)).

Here, the evidence that Appellant asserts was improperly admitted for both 

findings and sentencing was Prosecution Exhibit 3, the images of alleged child 

pornography. Since the images contain more than one minor, Appellant now asserts that 

these photos or videos constitute uncharged misconduct and are thereby inadmissible 

unless they meet one of the narrow exceptions of Mil. R. Evid. 404(b). At trial, defense 

counsel did not object to the admission of Prosecution Exhibit 3 during findings, did not 

request a bill of particulars regarding what “minor” was the subject of the specifications, 

or request an instruction limiting the use of the images contained in Prosecution Exhibit 

3. We, therefore, review the military judge’s admission of evidence and the failure to 

instruct the members for only plain error. We find there was no error in admitting the 

images that were the evidence of the offenses charged, thereby negating any need for a 

limiting instruction. 

Unlawful Search of Computers 

Military Rule of Evidence 311(a)(1) requires the defense to make a timely 

objection at trial to suppress the results of an unlawful search and seizure. Paragraph 

(d)(2)(A) further states that failure to raise a timely suppression motion constitutes waiver 

of the issue. “Whereas forfeiture is the failure to make the timely assertion of a right, 

waiver is the ‘intentional relinquishment or abandonment of a known right.’” United 
8 ACM 38611

States v. Olano, 507 U.S. 725, 732 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 

(1938)). “[T]here is a presumption against the waiver of constitutional rights, and for a 

waiver to be effective it must be clearly established that there was an intentional 

relinquishment of a known right or privilege.” United States v. Harcrow, 66 M.J. 156, 

157 (C.A.A.F. 2008) (internal quotation marks and citation omitted). Where 

Appellant alleges constitutional errors for the first time on appeal, given the 

“presumption against the waiver of constitutional rights” and the requirement that a 

waiver “clearly establish[] . . . an intentional relinquishment of a known right or 

privilege,” reviewing courts will often apply a plain error analysis rather than consider 

the matter waived. United States v. Sweeney, 70 M.J. 296, 303–04 (C.A.A.F. 2011).

Appellant did not file a motion challenging the search of the computer. 

Consequently, Appellant asserts that even under a plain error analysis he should prevail. 

Appellant alleges that the information providing the basis of the search authorization was 

illegally obtained in violation of the spousal privilege (error which Appellant alleges was 

plain and obvious) and the evidence found on the computer should be excluded as “fruit 

of the poisonous tree;” and without this evidence the Government would not have been 

able to present sufficient, independent evidence to garner a conviction (prejudicial in that 

it would have been case dispositive). We disagree.

Although there was no motion to suppress the search of the computers filed by the 

trial defense counsel, trial defense counsel did file a motion to suppress Appellant’s 

statements regarding his search for child pornography and the presence of child 

pornography on his computers pursuant to the spousal privilege contained in Mil. R.

Evid. 504. While these facts do not overcome the trial defense counsel’s forfeiture of the 

issue of unlawful search, it is relevant as to whether or not the actions of trial defense 

counsel amounted to waiver. Spousal privilege is the crux of the potential motion. Our 

review of the actions by trial defense counsel leads us to conclude that they vigorously 

pursued efforts to suppress Appellant’s statements and exclude the bulk of the evidence 

found on the computers. 

In this claim of error, Appellant asserts that the search of his computers was 

unlawful because the facts provided by TW to AFOSI on 26 July 2012 and the first of 

three subsequent monitored8phone calls between Appellant and TW which took place on 

1 August 2012 formed the sole basis of the probable cause used to obtain search and 

seizure authority from the military magistrate. During the first phone call, Appellant 

stated there was child pornography on his computer, that he downloaded it in 2008 while 

deployed, and that he knew that deleting it would not get rid of it and he needed to 

magnetically erase the hard drive. Appellant also revealed that as a teenager he had been 

 

8 During these monitored phone calls, Appellant’s wife called him using her cell phone with a speaker phone while 

two AFOSI agents listened to the conversation and took notes. Each agent was responsible for noting the statements 

of one party. Unlike a “pretext” phone call, monitored phone calls are not recorded and do not require HHQ 

approval. The Government did not offer any statements made during the second and third calls.
9 ACM 38611

kidnapped and sexually assaulted by someone wearing a mask and he thought the 

incident might have been taped. Appellant asserts the statements from Appellant’s wife 

cannot be used as the basis for search authorization. Appellant’s counsel states that they 

were unable to find case law directly on point, but assert that a plain reading of the rule 

leads to the logical conclusion that the spousal privilege applies during the investigative 

stage.

In United States v. Lovell, 8 M.J. 613 (A.F.C.M.R. 1979), the court held that the 

testimonial privilege conferred by Mil. R. Evid. 504 does not extend to preventing a 

spouse from furnishing evidence which provides probable cause for authorizing a search.9 

This precedent would have been virtually impossible to overcome in any challenge of the 

search based upon the fact that Appellant’s wife provided the probable cause. 

Additionally, the military judge ruled that the facts of this case established that Appellant 

had divulged the existence of child pornography on his computer to a third party, 

SSgt AS, who provided evidence to AFOSI the day after the search authorization based 

on the spousal communications was granted and the computers were seized by AFOSI. 

The “inevitable discovery” exception applies when the routine practice and 

procedures of the law enforcement agents who possess or are actively pursuing evidence 

or leads would have inevitably led to the obtaining of the evidence in a lawful manner. 

United States v. Wicks, 73 M.J. 93, 103 (C.A.A.F. 2014) (quoting United States v. Owens, 

51 M.J. 204 (C.A.A.F. 1999)). Here, the evidence provided by SSgt AS would have 

provided independent probable cause for search authorization, leading to the discovery of 

the files on Appellant’s computer. The search of Appellant’s computer was not unlawful.

Ineffective Assistance of Counsel

We review claims of ineffective assistance of counsel de novo, applying the twopronged test the Supreme Court set forth in Strickland v. Washington, 466 U.S. 668, 687

(1984). See United States v. Tippit, 65 M.J. 69, 76 (C.A.A.F. 2007). The court in 

Strickland also noted that the performance and prejudice prongs of the test can be 

analyzed independently.

There is no reason for a court deciding an ineffective assistance claim to approach 

the inquiry in the same order the court in Strickland did, or even to address both 

components of the inquiry if the appellant makes an insufficient showing on one. A court 

need not determine whether counsel’s performance was deficient before examining the 

prejudice suffered by the appellant as a result of the alleged deficiencies. “The object of 

an ineffectiveness claim is not to grade counsel’s performance.” Strickland, 466 U.S. at 

697. Therefore, this court can evaluate Appellant’s ineffective-assistance claim based on 

 

9

Interestingly, this case was proffered by trial counsel during the motion to suppress Appellant’s statements to his 

wife, including those made during the monitored phone calls with AFOSI. 
10 ACM 38611

a “lack of sufficient prejudice,” without grading counsel’s performance. Id. “We need 

not determine whether any of the alleged errors [in counsel’s performance] establish[] 

constitutional deficiencies under the first prong of Strickland . . . [if] any such errors 

would not have been prejudicial under the high hurdle established by the second prong of 

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

In this case, the allegation is that trial defense counsel’s forfeiture and/or waiver 

of the motion to suppress the search of the computer prejudiced Appellant. Trial defense 

counsel’s decision to not file a motion to suppress the search was reasonable in light of 

the Lovell ruling. SSgt AS also provided evidence which would have supported a search 

authorization for the computers, so the evidence found on the computer would have been 

inevitably discovered. These factors, together with the military judge’s admission of 

Appellant’s statements regarding his efforts to search and view child pornography, 

discussed above, lead us to conclude that Appellant was not prejudiced. Appellant has 

not met the “very high hurdle” of demonstrating ineffective assistance of counsel.

Admission of Statements in Violation of Spousal Privilege

A military judge’s decision to admit or exclude evidence is reviewed for an abuse 

of discretion. United States v. McElhaney, 54 M.J. 120, 132 (C.A.A.F. 2000); see also 

United States v. Westmoreland, 312 F.3d 302, 306 (7th Cir. 2002) (“We review the trial 

court’s resolution of a marital privilege issue for an abuse of discretion.”). Whether a 

communication is privileged is a mixed question of fact and law. McElhaney, 54 M.J. at 

132 (citing United States v. Napoleon, 46 M.J. 279, 284 (C.A.A.F. 1997)). “We review a 

lower court’s legal conclusions de novo, but we give a lower court’s factual findings 

more deference, and will not reverse such findings unless they are clearly erroneous.” 

United States v. Durbin, 68 M.J. 271, 273 (C.A.A.F. 2010) (quoting United States v. 

McCollum, 58 M.J. 323, 335–36 (C.A.A.F. 2003)).

Mil. R. Evid. 504(b) sets forth the spousal privilege encompassing confidential 

communications made during marriage. This rule requires three conditions to be met for 

the privilege to be upheld: (1) a communication, (2) intended to be confidential, (3) 

between married persons not separated at the time of the communication. United States v. 

Peterson, 48 M.J. 81, 82 (C.A.A.F. 1998). This privilege may be waived under Mil. R. 

Evid. 510(a) if the holder of the privilege “voluntarily discloses or consents to disclosure 

of any significant part of the matter or communication under such circumstances that it 

would be inappropriate to allow the claim of privilege.” Communications made in the 

presence of third parties, or revealed to third parties, are not privileged. See Mil. R. Evid. 

504(b)(2). Under Mil. R. Evid. 510(a), waiver occurs when a privilege-holder discloses 

“any significant part of the matter or communication” claimed as privileged. Waiver of 

the spousal privilege takes place when the “overall substance of the conversation”

between spouses is conveyed to a third party. United States v. Custis, 65 M.J. 366, 371 

(C.A.A.F. 2007) (quoting McElhaney, 54 M.J. at 132)).
11 ACM 38611

At trial, the Government wanted to admit three statements made by Appellant to 

his wife: (1) that child pornography was on his computer, (2) that he had searched online 

for child pornography, and (3) that he needed to clean his computer. The Government 

sought to introduce this evidence through the AFOSI Special Agent who overheard these 

statements during a monitored phone call between Appellant and his wife. Additionally, 

the Government sought to introduce statements made by Appellant to a co-worker, 

SSgt AS, where he confided that as a result of being kidnapped as a teenager and possibly 

recorded while forced to perform sex acts with minors he had looked for pornography of 

a similar nature, he was worried about what might be on his computers, and he needed to 

scrub his hard drive. Trial defense counsel filed a motion to exclude any statements 

made to TW pursuant to the spousal privilege of Mil. R. Evid. 504.

The military judge found that Appellant’s statements to his spouse would be 

protected under Mil. R. Evid. 504, but that “according to the testimony of [SSgt AS], . . . 

[Appellant] made statements to her which are . . . a significant part of the disclosures to 

the former spouse. Therefore, the privilege doesn’t apply.” The military judge also 

found that if those statements were made during the monitored phone call with AFOSI or 

any other time, the privilege did not apply because he also made a significant part of 

those statements to SSgt AS.

The military judge did not abuse his discretion by admitting Appellant’s 

statements. Viewed in the particular factual context of this case, Appellant’s statements 

during the monitored phone call and to SSgt AS revealed a “significant part” and the very 

substance of his communication to his wife and constitute waiver of his marital 

communications privilege.

Violation of Privacy Rights

Appellant asserts that the “government in general appears to be consistently 

mishandling the mental health records of the accused during investigation and 

prosecution of cases.” Specifically, Appellant’s mental health records are contained 

within the Pretrial Allied Papers section of the Record of Trial (ROT) as an attachment to 

the AFOSI Report of Investigation (ROI). Appellant asserts that AFOSI, the military 

records division, and trial counsel all acted improperly in gathering the records, 

reviewing the records and including them unsealed in the ROT. Appellant’s counsel 

refers to similar errors in at least two other ROTs, but in those cases the issue was 

rectified by the trial judge sealing the record. 

Appellant’s request does not assert that the mental health records were in any way 

used during the trial. Rather, he requests modest sentence relief based on this court’s 

power and authority to approve only so much of the findings and sentence as it 

determines, on the basis of the entire record, should be approved, citing United States v. 

Tardif, 57 M.J. 219, 224 (C.A.A.F. 2002). While Tardif is generally cited for the 
12 ACM 38611

proposition that service courts of review can grant sentence relief on the basis of 

unexplained and unreasonable post-trial delay under the authority of Article 66(c), 

UCMJ, the decision is not limited to that scenario. The language cited by Appellant 

comes from United States v. Powell, 49 M.J. 460, 464 (C.A.A.F. 1998). However, 

Powell clearly states Article 59(a), UCMJ, 10 U.S.C. § 859(a), constrains this court’s 

actions regarding forfeited errors unless they “materially prejudice the substantial rights 

of the accused.” Powell, 48 M.J. at 465. In addition to the trial counsel, trial defense 

counsel also had the ROI and took no action to request that these materials be 

safeguarded from further public view. 

We do not believe that the inclusion of Appellant’s mental health records alone 

materially prejudiced a substantial right held by Appellant.10 

Conclusion

The approved findings and sentence are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred.11 Articles 59(a) and 

66(c), UCMJ. Accordingly, the approved findings and sentence are AFFIRMED.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court

 

10 We do find that the records should be sealed and order that the Government take the necessary actions to do so. 

11 The court-martial order (CMO) contains a clerical error in that it states the offenses occurred within the 

continental “Unites States.” It should state that the offenses occurred within the continental “United States.” We 

order a corrected CMO. Rule for Courts-Martial 1114; Air Force Instruction 51-201, Administration of Military 

Justice, ¶ 10.10 (6 June 2013).