UNITED STATES, Appellee 

v. 

Alvin N. CUENTO, Aviation Structural Mechanic 

Second Class 

U.S. Navy, Appellant 

No. 03-0389 

Crim. App. No. 200100281 

United States Court of Appeals for the Armed Forces 

 Argued April 21, 2004 

 Decided July 27, 2004 

 

CRAWFORD, C.J., delivered the opinion of the Court, in 

which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined. 

Counsel

For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR 

(argued). 

 

For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued); 

Commander R. P. Taishoff, JAGC, USN (on brief); Lieutenant Ross 

W. Weiland, JAGC, USNR. 

Military Judge: C. R. Hunt 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Cuento, No. 03-0389/NA 

2

Chief Judge CRAWFORD delivered the opinion of the Court. 

Before a general court-martial of officers and enlisted 

members, pursuant to his pleas, Appellant was convicted of 

assault consummated by battery on a child under the age of 16 

years, in violation of Article 128, Uniform Code of Military 

Justice [hereinafter UCMJ] 10 U.S.C. § 928 (2000). Contrary to 

his pleas, he was convicted of two specifications of indecent 

acts with a child under the age of 16 years, in violation of 

Article 134, UCMJ 10 U.S.C. § 934 (2000). The convening 

authority approved the court’s sentence of a dishonorable 

discharge and four years’ confinement. The Court of Criminal 

Appeals affirmed the findings and sentence.1

 This Court granted review of the following issues: 

 I. 

WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY 

FAILING TO ORDER A DUBAY HEARING TO ASSIST IT IN 

DETERMINING WHETHER THE PETITION FOR A NEW TRIAL 

SHOULD BE GRANTED AND A NEW TRIAL ORDERED WHERE THE 

TRIAL WAS A SWEARING CONTEST BETWEEN THE PARTIES AND 

THE COMPLAINING WITNESS RECANTED HER ALLEGATIONS ON 

FOUR OCCASIONS AFTER APPELLANT WAS TRIED. 

II. 

 WHETHER APPELLANT’S CONFESSION WAS INVOLUNTARY WHEN 

THE GOVERNMENT OBTAINED THE CONFESSION AFTER INFORMING 

APPELLANT THAT HE WOULD NOT BE REUNITED WITH HIS 

CHILDREN UNLESS HE ADMITTED THAT HE HAD SEXUALLY 

MOLESTED HIS DAUGHTER, AND WHERE APPELLANT CONFESSED 

 

1

 United States v. Cuento , 58 M.J. 584 (N-M. Ct. Crim. App. 

2003). 
United States v. Cuento, No. 03-0389/NA 

3

WITHIN DAYS OF A GOVERNMENT IMPOSED DEADLINE FOR 

ADMITTING HIS GUILT AFTER MAINTAINING HIS INNOCENCE 

FOR EIGHTEEN MONTHS. 

III. 

WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT 

REFUSED TO CONDUCT A PLAIN ERROR ANALYSIS AND FOUND 

THAT ANY POTENTIAL ERROR WAS HARMLESS BEYOND A 

REASONABLE DOUBT WHERE THE GOVERNMENT VIOLATED 

APPELLANT’S SIXTH AMENDMENT RIGHT TO CONSULT WITH 

COUNSEL BY ELICITING TESTIMONY THAT APPELLANT RECANTED 

HIS ADMISSION ONLY AFTER CONSULTING WITH AN ATTORNEY 

AND BY ARGUING TO THE MEMBERS THAT APPELLANT’S 

RECANTATION WAS FALSE BECAUSE IT WAS MOTIVATED BY 

APPELLANT’S CONSULTATION WITH AN ATTORNEY. 

 

 For the reasons set forth below, we affirm the decision of 

the Navy-Marine Court of Criminal Appeals with respect to Issues 

II and III. As to Issue I, we return the record to the court 

below to order a fact-finding hearing pursuant to United States 

v. DuBay,2 for the purpose of determining the credibility of J’s 

post-trial recantation. 

 FACTS 

 In August 1998, following J’s allegations that Appellant 

had sexually assaulted her in October 1977, Appellant was 

removed from the family home and twice interviewed by the San 

Diego Police. He told the police that, while play-wrestling 

with J, he accidentally caught his hand in J’s underwear and 

unintentionally penetrated her vagina with his finger. In 

September 1999, the local District Attorney declined prosecution 

 

2

 17 C.M.A. 147, 37 C.M.R. 411 (1967). 
United States v. Cuento, No. 03-0389/NA 

4

and the Navy Criminal Investigative Service (NCIS) assumed 

control of the investigation. 

 The California Child Protective Service, in coordination 

with the Navy Family Advocacy Program, devised a “reunification 

plan,” by which Appellant, after appropriate therapy, could 

rejoin his family. Part of the therapy was for Appellant to 

admit to J’s allegations. In fact, one of the rules of the 

therapy group provided that any participant who did not “believe 

that a molestation occurred” would not be allowed to complete 

the course of therapy necessary to be reunited with his or her 

family. To this end, Appellant attended group counseling 

sessions with Mr. Martin, a psychotherapist, from summer 1999 to 

spring 2000, and in January and February 2000. Appellant also 

saw Dr. Barnes, a clinical psychologist, for individual 

sessions. 

 Although Appellant had never admitted to the police that 

J’s allegations were true, sometime in February 2000, he told 

Mr. Martin that he had done what J said he had done. About a 

week thereafter, at NCIS’s invitation, Appellant went to NCIS, 

was advised of his rights, waived them, and gave the same 

version of events he had given to civilian police; however, when 

Special Agent (SA) Thomas pointedly expressed disbelief, 

Appellant “broke down” and admitted that in October 1997, he had 

twice put his finger in J’s vagina. After confessing, Appellant 
United States v. Cuento, No. 03-0389/NA 

5

expressed great relief and signed the written confession 

admitted as Prosecution Exhibit 20. 

 Also in late February 2000, on his eighth visit to Dr. 

Barnes, Appellant admitted that J’s allegations were true. At 

their next meeting, Appellant offered no retraction or 

contradiction, but on his tenth visit to Dr. Barnes, Appellant 

said he had spoken with a lawyer, that he had been lying to Dr. 

Barnes at the last two sessions, that he was afraid of going to 

jail, and that he wanted to change his story. 

DISCUSSION 

A. Voluntariness of Appellant’s Confession. 

 Appellant argues that his confession to NCIS was 

involuntary “because the government would not allow him to be 

reunited with his children until they reached adulthood if he 

did not admit his guilt before the termination of his second 

group therapy cycle, which was to end only days after he 

confessed.” We disagree and find Appellant’s statement was both 

voluntary and independent of his statement to Mr. Martin. 

 Voluntariness of a confession is a question of law 

that an appellate court independently reviews, de 

novo. The necessary inquiry is whether the confession 

is the product of an essentially free and 

unconstrained choice by its maker. If, instead, the 

maker’s will was overborne and his capacity for selfdetermination was critically impaired, use of his 

confession would offend due process. 3 

 

3

 United States v. Bubonics, 45 M.J. 93, 94-95 (C.A.A.F. 

1996)(citations omitted). 
United States v. Cuento, No. 03-0389/NA 

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“As this Court ruled in one of its earliest opinions, a 

confession is not automatically inadmissible, even though it was 

made after another confession which was clearly involuntary. 

The prosecution must rebut the presumption that the later 

confession was the result of the same influence which led to the 

prior confession.”4

 When there are multiple admissions by an accused and the 

voluntariness of a second or subsequent statement is challenged 

on the grounds that it is tainted by an earlier, illegally 

obtained statement, we have looked to the Supreme Court for 

guidance: 

In Oregon v. Elstad the Supreme Court 

distinguished between two classes of "involuntary" 

statements and between the impact of each on a 

subsequent interrogation. Where a confession is 

obtained at a lawful interrogation that comes after an 

earlier interrogation in which a confession was 

obtained due to actual coercion, duress, or 

inducement, the subsequent confession is presumptively 

tainted as a product of the earlier one. On the other 

hand, where the earlier confession was "involuntary" 

only because the suspect had not been properly warned 

of his panoply of rights to silence and to counsel, 

the voluntariness of the second confession is 

determined by the totality of the circumstances. The 

earlier, unwarned statement is a factor in this total 

picture, but it does not presumptively taint the 

subsequent confession.5 

 

4

 United States v. Spaulding, 29 M.J. 156, 160 (C.M.A. 

1989)(citing United States v. Monge, 1 C.M.A. 95, 2 C.M.R. 1 

(1952)). 

5

 United States v. Phillips, 32 M.J. 76, 79 (C.M.A. 1991). 
United States v. Cuento, No. 03-0389/NA 

7

 When a prior statement is actually coerced, the time that 

passes between confessions, the change in place of 

interrogations, and the change in identity of the interrogators 

all bear on whether that coercion has carried over into the 

second confession. 

Only those statements that are “actually coerced” require 

application of the more stringent test generally described in 

Military Rule of Evidence 304(b)(3) [hereinafter M.R.E.] , as 

opposed to a showing of voluntariness by totality of the 

circumstances.6 

 While a so-called “cleansing statement” is a factor to 

consider in evaluating the voluntariness of a confession made 

following a prior, unwarned statement, this Court has held that 

“[w]here there are successive statements, it is not a 

precondition to the admission of a properly obtained statement, 

that the accused be informed that a previous statement cannot be 

used against him.”7

 However, “[i]f there has been an earlier 

unwarned statement, ‘the absence of a ‘cleansing’ warning before 

 

6

 United States v. Benner, 57 M.J. 210 (C.A.A.F. 2002); United 

States v. Steward, 31 M.J. 259, 264 (C.M.A. 1990)(citing 

Spaulding, 29 M.J. at 156; United States v. Ravenel, 26 M.J. 344 

(C.M.A. 1988)). 

7

 United States v. Wimberly, 16 C.M.A. 3, 9, 36 C.M.R. 159, 165 

(1966). 
United States v. Cuento, No. 03-0389/NA 

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the subsequent statement’ is one of the ‘circumstances to be 

considered in determining voluntariness.’”8 

 In determining whether Appellant’s NCIS statement was 

voluntary, we will assume, arguendo, that his earlier statement 

was produced by the coercive effect of the prerequisites placed 

on Appellant’s reunification with his family by the California 

Child Protective Service. “Evidence that was obtained as a 

result of an involuntary statement may be used when the evidence 

would have been obtained even if the involuntary statement had 

not been made.”9

 “Even evidence challenged as “derivative” from 

an involuntary statement is admissible ‘if the military judge 

finds by a preponderance of the evidence that’ it ‘was not 

obtained by use of the statement, or that the evidence would 

have been obtained even if the statement had not been made.”10 

Evaluating voluntariness, attenuation, and inevitability of 

Appellant’s NCIS statement, we give particular weight to the 

following facts: 

 At the time of his NCIS statement, Appellant was 37 years 

old, with over 18 years of service in the Navy. The NCIS 

statement was made at the NCIS office, to which Appellant had 

 

8

 United States v. Ford, 51 M.J. at 451 (quoting United States v. 

Lichtenhan, 40 M.J. 466, 470 (C.M.A. 1994)). 

9

 M.R.E. 304(b)(2). 

10 Spaulding, 29 M.J. at 162 (citing M.R.E. 304(b)(3)). 
United States v. Cuento, No. 03-0389/NA 

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been invited, but not ordered to appear. Appellant was not in 

custody. Appellant’s statement to Mr. Martin was made at Mr. 

Martin’s office, in the course of treatment in which Appellant 

had been ordered to participate. The NCIS statement was made 

about seven days after Appellant’s first admission to Mr. 

Martin, with significant time for cool reflection and 

consultation with an attorney. 

 When SA Nelson invited Appellant to come to NCIS, she 

called him directly, rather than involving his command; 

consequently, Appellant arrived at NCIS without escort. Neither 

SA Nelson nor SA Thomas participated in Appellant’s statement to 

Mr. Martin, nor were the agents aware of the “reunification 

plan.” At NCIS, Appellant was oriented to his surroundings by 

SA Nelson and SA Thomas, and told that he was there voluntarily 

and could leave at any time. 

 SA Nelson advised Appellant of his rights, but did not give 

a “cleansing warning.” Appellant indicated that he understood 

his rights and initialed beside each on the rights waiver form. 

At no time did Appellant ask for an attorney or indicate that he 

wanted to leave or stop answering questions. While the NCIS 

agents made reference to Appellant’s statement to civilian 

police (alleging an accidental touching), no mention was made of 

Appellant’s prior admission to Mr. Martin. No mention was made 

of the Child Protective Service’s orders or conditions. 
United States v. Cuento, No. 03-0389/NA 

10

 Before and during the interview, neither of the agents made 

any promises, inducements, or threats. Although the agents used 

no unlawful coercion, when Appellant first told his story in 

accidental terms, SA Thomas told Appellant that he did not 

believe him. Upon hearing this, Appellant confessed that he had 

done what had been alleged. Appellant chose to have SA Nelson 

write his statement, rather than Appellant writing it himself. 

 After rendering the confession, Appellant said he felt that 

a huge burden had been lifted from his shoulders. The statement 

process was very brief, lasting approximately 90 minutes. 

Appellant read, made changes to, initialed, swore to, and signed 

the statement. 

Under the circumstances of this case, particularly the 

intervening events between the first and second statements, the 

Government has carried its burden of demonstrating that the 

first statement did not taint the second statement, and that the 

second was voluntary. The trial judge did not err in admitting 

the NCIS statement over defense objection. 

B. Comment on Appellant’s Right to Counsel. 

 During the direct examination of Dr. Barnes, the trial 

counsel engaged the witness as follows: 

Q: Okay. Now, when, if ever, did the accused 

actually recant his version? 

A: The following week, so two weeks after his 

initial disclosure of molest he came in a state of 
United States v. Cuento, No. 03-0389/NA 

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agitation and told me that he wanted to again change 

his story. 

Q: Well, let’s talk in a little bit more detail 

about exactly what he told you on that date. What did 

he tell you? 

A. He told me several things, that he had met 

with his attorney and he was told that — let me back 

up.

Q. Okay. 

A. I’d like to strike that, if I could. It’s 

important to get the sequence of events. He told me 

that he had been lying to me for the previous two 

weeks and that he now wanted to set the record 

straight one more time, that he reverted to the 

allegation that the abuse to his daughter occurred in 

an accidental fashion, as he had reported to me for 

the first seven weeks of therapy. 

The trial counsel asked one more innocuous question of the 

witness and concluded his direct examination. We note that he 

did not follow the witness’ reference to an attorney 

consultation with additional questions. However, in crossexamination, the trial defense counsel immediately did. 

Q. . . . You said you met with him two weeks 

later and he went back to the story he had originally 

gave; that was the wrestling story, right? 

A. That is correct. 

Q. And you mentioned he had met with his 

attorney? 

A. Yes. 

Q. Would that be me? 

A. Yes, it would. 
United States v. Cuento, No. 03-0389/NA 

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Q. Okay. And the first time you met with him 

was 28 February, right? 

A. That’s correct. 

. . . . 

Q. Okay. Would it surprise you to know, sir, 

that Petty Officer Cuento did not meet with his 

attorney until after [March 13th]? 

A. It would only surprise me that I have the 

date wrong. When he met with me and revised his 

story, he had met with an attorney. It may have been 

you, sir, but he had met with an attorney, at least 

that’s what he reported to me at that time, and he 

started expressing fear that he would be placed in the 

brig. That was a new story to me on that day. 

Q. Do you know of any other attorney that he’s 

ever had? 

A. I don’t know. 

During the trial counsel’s closing argument on findings, he 

made the following comments: 

Members, you’ve heard from Dr. Barnes. He came 

in last Friday, and he gave you a real good glimpse as 

to exactly what was going on here. And if you bring 

in all the other evidence that you’ve heard, it makes 

perfect sense. You’ve got a man that comes into his 

office on the 28th of February, four days after he 

speaks with NCIS, on the 28th of February, and says, 

“I’m guilty.” Another week goes by, on the 6th of 

March or sometime around there, he comes back into the 

office and says, “Doc, I’d like to talk with you a 

little bit more about it. I’m guilty, and the reason 

that I’m telling you now is because the burden is so 

great.” An then another week goes by. He comes back 

in, and he says, “Well, now, I’ve spoken with my 

defense attorney; and now I’m – I don’t want to be 

guilty anymore. I’m going to recant. No longer am I 

going to say I did this.”11

 

11 58 M.J. at 593. 
United States v. Cuento, No. 03-0389/NA 

13

 

We need not decide whether the court below conducted a 

plain error analysis, as we conclude that even if the trial 

counsel erred in his examination of Dr. Barnes or his argument 

suggesting that Appellant recanted after having talked with his 

lawyer, any error was harmless. Because we also assume without 

deciding that the alleged error was of constitutional dimension, 

we conclude that any error was harmless beyond a reasonable 

doubt. 

The members had an opportunity to hear and personally 

observe each witness and we assume that the members applied 

their "common sense and [their] knowledge of human nature and of 

the ways of the world."12 The defense did not object to Dr. 

Barnes’ statement or to trial counsel’s argument. In this 

context, we have no difficulty concluding that if there was 

error, it was harmless beyond a reasonable doubt. 

C. The Court of Criminal Appeals’ Failure to Order a Factfinding Hearing under United States v. DuBay.13 

For the reasons set forth below, we return the record of 

trial to the Navy-Marine Court of Criminal Appeals to order a 

DuBay hearing in which a military judge will determine the 

credibility of J’s recantation of her trial testimony. The 

 

12 United States v. Rivera, 54 M.J. 489, 491 (C.A.A.F. 2001). 

13 17 C.M.A. 147, 37 C.M.R. 411 (1967). 
United States v. Cuento, No. 03-0389/NA 

14

record of those proceedings will then be evaluated by the Court 

of Criminal Appeals in determining whether to grant Appellant’s 

petition for new trial. 

On 10 January 2001, Mr. Douglas Brown, a civilian 

attorney representing the appellant during post-trial 

review, placed a telephone call to J. During a twominute conversation, Mr. Brown asked J if she had told 

the truth or lied at trial when she testified that she 

had been molested by her father. She said that she 

had lied and would be willing to write a statement and 

speak to Mr. Brown’s investigator. On 16 January 

2001, J and her mother met with investigator Suzanne 

McDaniel. In the course of a 90-minute interview, 

most of which was transcribed verbatim, J recanted her 

trial testimony and stated that she had lied at trial 

in accusing her father of molesting her. She also 

signed an affidavit to that effect.14

Article 73, UCMJ,15 permits an accused to petition for a new 

trial within two years of the convening authority’s action. 

Rule for Courts-Martial 1210(f) [hereinafter R.C.M.] provides as 

follows: 

 (f) Grounds for new trial. 

 (1) In general. A new trial may be granted 

only on grounds of newly discovered evidence or fraud 

on the court-martial. 

 (2) Newly discovered evidence. A new trial shall 

not be granted on the grounds of newly discovered 

evidence unless the petition shows that: 

 (A) The evidence was discovered after the trial; 

 (B) The evidence is not such that it would 

have been discovered by the petitioner at the time of 

trial in the exercise of due diligence; and 

 (C) The newly discovered evidence, if 

considered by a court-martial in the light of all 

 

14 58 M.J. at 587-88. 

15 10 U.S.C. § 873 (2000). 
United States v. Cuento, No. 03-0389/NA 

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other pertinent evidence, would probably produce a 

substantially more favorable result for the accused. 

 In United States v. Rios,16 this Court discussed the Manual 

for Courts-Martial, United States (1998 ed.) new trial 

provisions: 

Petitions for new trial based on a witness’s 

recantation “are not viewed favorably in the law.” 

United States v. Giambra, 33 M.J. 331, 335 (C.M.A. 

1991). They should not be granted unless “[t]he court 

is reasonably well satisfied that the testimony given 

by a material witness is false.” Id., quoting Larrison 

v. United States, 24 F.2d 82, 87 (7th Cir. 1928). 

Recantations of trial testimony are viewed by 

federal courts with "extreme suspicion." 

Our standard of review on petitions for new trial 

is deferential. We review only for an abuse of 

discretion. 

In United States v. Brooks,17 we again explained the heavy 

burden on petitioners and the critical role of appellate courts 

in determining credibility: 

When presented with a petition for new trial, the 

reviewing court must make a credibility determination, 

insofar as it must determine whether the “newly 

discovered evidence, if considered by a court-martial 

in the light of all other pertinent evidence, would 

probably produce a substantially more favorable result 

for the accused.” RCM 1210(f)(2)(C). The reviewing 

court does not determine whether the proffered 

evidence is true; nor does it determine the historical 

acts. It merely decides if the evidence is 

 

16 48 M.J. 268 (C.A.A.F. 1998), cert. denied, 525 U.S. 1156 

(1999)(noting the consistency between R.C.M. 1210 and Fed. R. 

Crim. P. 33)(citations omitted). 

17 49 M.J. 64, 69 (C.A.A.F. 1998). 
United States v. Cuento, No. 03-0389/NA 

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sufficiently believable to make a more favorable 

result probable. 

We find a Court of Criminal Appeals has abused its 

discretion when we reach “a definite and firm conviction that 

the court below committed a clear error of judgment in the 

conclusion it reached upon weighing of the relevant factors.”18 

This is a textbook standard and involves “more than a mere 

difference of opinion.”19 After noting the standard with which 

to measure Appellant’s petition for new trial and the 

circumstances under which J recanted her testimony, and rather 

than ordering a fact-finding hearing to assess J’s credibility, 

the Court of Criminal Appeals assessed J’s credibility on the 

strength of her post-trial affidavit. The court found that 

Appellant had “not met his burden of showing that J’s trial 

testimony was false.”20 In so doing, the Court of Criminal 

Appeals noted that Appellant’s case is not a simple “swearing 

contest,” being instead a case in which the victim’s trial 

testimony is corroborated by Appellant’s NCIS statement and his 

admissions to counselors. While those distinctions are 

factually accurate as far as they go, they fail to account 

adequately for Appellant’s repudiation of his prior statements, 

 

18 United States v. Houser, 36 M.J. 392, 397 (C.M.A. 

1993)(citation omitted). 

19 United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000). 
United States v. Cuento, No. 03-0389/NA 

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his facially rational explanation for having made the 

incriminating, but purportedly false statements, and the 

potential effect that mutually corroborative denials by 

Appellant and J may have at any future proceedings. 

“[W]hen the alleged perjurer is the prosecutrix herself,” 

we remain “disinclined” to burden Appellant with mechanical 

application of a rigorous standard.21 Under the unique 

circumstances of this case, including the lack of any 

corroborating physical evidence, that Appellant, both before and 

during trial, recanted his NCIS statement and his admissions to 

Dr. Barnes and Mr. Martin, and that J’s testimony was the only 

other evidence against Appellant, we find that the weight of J’s 

recantation cannot adequately be measured without a DuBay

hearing before a military judge at which J would testify under 

oath and be subject to cross-examination. 

DECISION 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed as to Issues II and III. As to 

Issue I, the decision of the court is reversed and returned to 

the Judge Advocate General of the Navy for submission to a 

 

20 Cuento, 58 M.J. at 590. 

21 Giambra, 33 M.J. at 335. 
United States v. Cuento, No. 03-0389/NA 

18

convening authority for a DuBay hearing. Following that 

hearing, the record should be returned to the Navy-Marine Corps 

Court of Criminal Appeals for a determination of whether “[t]he 

newly discovered evidence, if considered by a court-martial in 

the light of all other pertinent evidence, would probably 

produce a substantially more favorable result for the accused.” 

See United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998).