This opinion is subject to administrative correction before final disposition.

Before 

TANG, LAWRENCE, and STEPHENS

Appellate Military Judges

_________________________

UNITED STATES

Appellee

v.

Salvador JACINTO

Aviation Structural Mechanic First Class (E-6), U.S. Navy

Appellant

No. 201800325

Decided: 30 April 2020

Appeal from the United States Navy-Marine Corps Trial Judiciary

Military Judge:

Roger E. Mattioli

Sentence adjudged 25 June 2018 by a general court-martial convened 

at the Washington Navy Yard, Washington, D.C., consisting of officer 

and enlisted members. Sentence approved by the convening authority:

confinement for eight years and a bad-conduct discharge.

For Appellant:

Major Maryann N. McGuire, USMC

Captain Nicholas S. Mote, USMC

Lieutenant Mike Wester, JAGC, USN

For Appellee:

Lieutenant Kurt W. Siegal, JAGC, USN

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

Judge TANG and Judge LAWRENCE joined. 
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

2

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

STEPHENS, Judge:

A general court-martial convicted Appellant, contrary to his pleas, of rape 

of a child, sexual abuse of a child, and child endangerment by culpable 

negligence, in violation of Articles 120b and 134, Uniform Code of Military 

Justice [UCMJ].1

Appellant asserts seven assignments of error (AOE), which we have renumbered: (1) the military judge abused his discretion when he denied 

Appellant’s motion to order the production of one of the child victims’ mental 

health records or review them in camera; (2) the military judge erred by 

refusing to grant a continuance; (3) the military judge erred by refusing to 

admit evidence against a child victim under Military Rule of Evidence [Mil.

R. Evid.] 412; (4) all of the specifications, except for one, fail to state the time 

of the offense with sufficient particularity, and the military judge erred in 

denying Appellant’s motion for a bill of particulars; (5) the military judge 

erred in instructing the members they could use evidence of one charged 

offense to convict Appellant of other charged offenses; (6) Naval Consolidated

Brig Miramar’s policy forbidding contact with Appellant’s non-victim 

biological children amounted to a violation of Article 55, UCMJ, and the 

Eighth Amendment to the United States Constitution; and (7) the same 

Naval Consolidated Brig Miramar policy violated the First and Fifth 

Amendments to the Constitution.2 We find no prejudicial error and affirm.

I. BACKGROUND

A. Movements of a Navy Family

In 2008, Appellant left Naval Air Station Patuxent River in Maryland for 

temporary assignment in Guam. There he met a local bartender, EJ. She had 

 

1 10 U.S.C. §§ 920b, 934 (2016).

2 AOEs 6 and 7 were raised pursuant to United States v. Grostefon, 12 M.J. 431 

(C.M.A. 1982). They are consolidated in section II.F.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

3

two daughters from a previous marriage living with her, “Emily” and “Julie.”3

The girls were six and eight, respectively. Before Appellant rotated back to 

Maryland, he got EJ pregnant. Soon after Appellant left Guam, EJ, her 

daughters, and their newborn son, followed him to Maryland. Over the course 

of the next year, the new family added one more son between Appellant and 

EJ, and would add another about five years later. Appellant and EJ eventually married.

In 2010, the family moved from Maryland to Jacksonville, Florida—all 

except for Emily. She spent the next year in Guam with her biological father.

The family lived in a house in Jacksonville on Stonegate Drive. In that house 

they hosted many parties and gatherings, which often featured intoxicated 

adults staying overnight and sleeping in bedrooms or on floors and couches. 

Two such events were Fourth of July parties in 2011, when Emily was still in 

Guam with her father, and in 2012, after she re-joined the family in Jacksonville. 

In late February or early March of 2013, EJ travelled to Thailand for her 

father’s funeral. Then, in May of 2013 the family moved to another house in 

Jacksonville on Pine Lake Drive. Soon after that move, Appellant deployed to 

Japan for six months and returned in December.

In 2014, the family all returned to Maryland. Just as in Jacksonville, they 

lived in one house—in Lexington Park—and then moved locally about a year 

later to a home on Range Road in Lusby, Maryland. At the home on Range

Road, Emily became a close friend of a young girl who lived across the street. 

Her name was “Anna,”4 and she was in sixth grade when she met Emily, who 

was then in seventh grade and a year older. The Jacinto family continued 

having get-togethers featuring alcohol. In the basement of the Range Road

home, Appellant would often gather with his friends and play “beer pong”

with Emily and Anna present.

B. Emily and Julie Disclose Allegations Against Appellant

In May 2017, Appellant’s step-daughters were ages 14 and 16 and in 

eighth and tenth grade. Anna was in seventh grade. On May 1, Emily’s 

mother confronted her about some “hickeys” she had. Emily initially denied

 

3 To protect the victims’ privacy and for ease of reading, Appellant’s eldest stepdaughter, “EB,” will be called by the pseudonym “Emily,” and the younger stepdaughter, “JB,” will be called by the pseudonym “Julie.”

4 We will refer to the witness “AA” with the pseudonym of “Anna.”
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

4

she had been sexually active with her boyfriend, but then admitted to it. This 

prompted a fight between Emily and her mother resulting in Emily being

forbidden to see her boyfriend anymore. At trial, pursuant to the military 

judge’s Mil. R. Evid. 412 ruling, the members heard a sanitized version. EJ 

testified she and Emily had a fight about Emily’s boyfriend. EJ told the 

members, “I felt like they were getting too close and too fast” and she “made 

them break up.”5

About two hours later, Emily was in her room with Anna. She used Anna’s phone to text her mother to ask her to come to her room. Emily had been 

crying and was upset, as was Anna. Anna was saying to Emily, “Just tell 

your mom, tell your mom.”6 In the past year, Emily had told Anna that 

Appellant had sexually abused her. Emily then told her mother Appellant 

had sexually abused her. But this was not the first time her mother had 

heard this from Emily. 

Back in 2013, the family lived at the home on Stonegate Drive in Jacksonville. When EJ went to Thailand for her father’s funeral, Emily—then 

only ten and in fourth grade—made a tearful video-call to her mother. She 

was prompted to make the call when Appellant tried to help her up on to the 

kitchen counter by touching her buttocks. Upset by this, Emily told her 

mother Appellant had “humped her from behind”7 in the master bedroom in 

the past few months before her mother had left for Thailand. EJ told Emily, 

“You better not be lying.”8 The next day, EJ returned to Florida and questioned Emily about the accusations. Initially EJ just spoke with Emily. 

At trial, Emily testified that Appellant had sexually assaulted her three 

different times. He had come up behind her while she was doing dishes and 

put his hand down her pants. Another time while she was doing dishes, he 

did the same thing, except he digitally penetrated her vagina and forced her 

to touch his penis. On a third occasion in the master bedroom, he leaned

Emily over on his bed and rubbed his penis through clothing against her 

buttocks and genital area while she was on her stomach and then on her 

back. At trial, EJ recalled that Emily’s descriptions of the sexual assaults in 

2017 were the same as they were in 2013.

 

5 Record at 1072-73.

6 Id. at 1074.

7 Id. at 1085.

8 Id. at 885.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

5

In 2013, after EJ and Emily’s initial conversation, they met in the garage 

of the family home and both confronted Appellant about the allegations. 

Appellant denied it and Emily was crying. When EJ told Emily that if these 

allegations were true she would have to call the police and Appellant would 

be taken away, Emily “kind of freaked out.”9 It was then that Emily recanted 

and said she lied.10 Emily never brought it up to her mother again.

Now in May 2017, when Emily raised these old allegations, her mother 

went and confronted Appellant. He was on the back porch drinking alcohol. 

When she asked him if the allegations were true, according to EJ, “he was 

quiet, and he didn’t deny it, and he didn’t admit to it” but then “was like, ‘I 

don’t know,’ ” and “just kept quiet.”11 EJ then brought Emily out on the 

balcony so Appellant could hear what she had to say. Emily was crying and 

said, “You know what you did.”12 Appellant made no response.

The day after Emily told her mother—again—about these allegations, she 

broke down at school. She was sent from her class to see a school counselor, 

where she disclosed what Appellant had done to her. The school counselor, a 

mandatory reporter under Maryland law, contacted civilian police, who then

contacted the Naval Criminal Investigative Service. The following day, Emily

was admitted to a local hospital for nearly a week. 

The day Emily was admitted to the hospital, EJ and her other daughter, 

Julie, sat in a parked car in the hospital parking lot. When she asked Julie if 

“anything ever happened between her and [Appellant],” she was “quiet at 

first” and then said “yes.”13 Julie told her mother that Appellant had touched 

her “down there.”14 Julie later testified that when she was 11 years old, 

Appellant had sexually assaulted her late in the evening at the 2012 Fourth 

of July party held at the family’s Stonegate Drive home in Jacksonville. She 

awoke to Appellant’s hand down her pajamas and inside her underwear after 

she fell asleep on a couch. Appellant then digitally penetrated her vagina as 

he said “Shhh.”15 She pushed him away and ran into the bedroom she shared 

 

9 Id. at 1086.

10 At trial, Appellant argued that Emily recanted during the initial video call 

with EJ and presented testimony from one of EJ’s friends that EJ told her this. 

11 Record at 1076.

12 Id. at 1077.

13 Id. at 1083.

14 Id.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

6

with Emily. She never told any adults about this incident until she told her 

mother in the hospital parking lot.16

C. Litigation Concerning Emily’s Mental Health Records and Other 

Evidence

1. Emily’s medical records

In pretrial litigation, Appellant attempted to obtain medical records documenting Emily’s week of inpatient treatment at the hospital. The military 

judge ordered the hospital to produce Emily’s prescription records and her 

mental health diagnoses. He found the remainder of her records were 

privileged and that Appellant had not made a showing of vital necessity to 

require production or an in camera review. 

The week before the trial began, the hospital produced the required records. While at the hospital, Emily was prescribed Tylenol and four other 

medications, including Thorazine. It was the Thorazine that was at issue. 

This medication was prescribed for “psychotic agitation.”17 Appellant had a 

child psychologist provide expert testimony that Thorazine was a “known 

antipsychotic medication” used to assist patients who may be “stimulated 

internally by things that are not actually going on” or who could be “laboring 

under the burden of delusions.”18 But Emily was diagnosed with “depression 

without psychotic features”19 and the Thorazine was prescribed “as needed.”20

There was also no evidence Emily ever exhibited psychotic agitation or ever 

took Thorazine. The military judge denied Appellant’s motion for in camera 

review of Emily’s mental health records and denied his motion for a continuance based on the timeline of the disclosure of the records. The day before 

trial, Appellant moved the military judge to reconsider his denial of the 

continuance; the military judge denied the motion to reconsider.

 

15 Id. at 773.

16 On cross-examination, Emily testified that in 2015, Julie told her Appellant 

had touched her, but they did not have “a conversation” about it. Id. at 913. Emily 

testified that she believed Julie knew what Appellant had done to Emily because it 

was a “small family.” Id. at 914.

17 App. Ex. LXXIV, “Ruling M.R.E. 513 (Sealed)” at 2.

18 Record at 322, 325.

19 App. Ex. CXXVI, “Government Bench Brief ICO MRE 513 (Sealed)” at 10-12; 

Record at 329 (emphasis added).

20 App. Ex. LXXIV at 2 (emphasis added).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

7

2. Emily’s relationship with her boyfriend

As discussed above, the members heard a “sanitized” version of Emily’s 

relationship with her boyfriend and the conflict that arose with her mother 

because of it. Appellant wanted to tell the “full story” to the members to 

highlight Emily’s purported motive to fabricate and deflect blame away from 

her own behavior. In the fall of 2016—the beginning of Emily’s eighth-grade 

year—she started seeing her boyfriend. At some point during the school year, 

they had sexual intercourse. Emily also told her boyfriend that when she was 

in fourth grade, Appellant “grabbed her butt . . . and looked at her weird.”21

Three days before Emily’s 2017 disclosure to her mother, she attended a 

classmate’s “going away” party. There she told several people Appellant had 

sexually assaulted her. At that party, Emily also engaged in some kind of 

sexual activity with her boyfriend that left her with “hickeys” on her chest 

and other parts of her body. Appellant also argued Emily had taken an 

“ecstasy” pill at the party and started convulsing as a result of either a real or 

a feigned seizure. When a friend called Emily “an attention whore,” she 

responded by telling people Appellant had sexually abused her.

Appellant filed a motion under Mil. R. Evid. 412 to be allowed to present 

evidence of Emily’s sexual behavior to highlight her alleged motive to 

fabricate. Specifically, he argued that Emily falsely accused him of sexual 

abuse because she was in trouble when her mother learned of her sexual 

activity. The military judge denied the motion in a written ruling. One of his 

conclusions was based on the fact that EJ had previously discovered Emily 

had been sexually active with her boyfriend. According to EJ, she and the 

boyfriend’s mother spoke and “cut them off for a little bit.”22 At that time, 

Emily did not make any allegations. The military judge allowed Appellant to 

present testimony that Emily was upset about being forcibly “broken up” 

with her boyfriend because EJ believed they were “getting too close and too 

fast.”23 He also allowed Appellant to present evidence that Emily and her 

boyfriend had attended the “going away” party without EJ’s permission. 

Ultimately, Appellant was prevented from introducing evidence of the 

“hickeys” or any of Emily’s explicit prior sexual history with her boyfriend.

 

21 Id.

22 App. Ex. XXXIII, “NCIS Transcript Interview ICO EJ” at 66.

23 Record at 1072.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

8

3. Appellant’s motion for a bill of particulars

Specifications 2, 3, 4, and 5 of Charge I [Article 120b, UCMJ] concerned 

Appellant’s alleged sexual abuse of Emily. The timeframe alleged was “on or 

about August 2012 to on or about May 2013.”24 This appeared to have been 

charged to coincide with Emily’s testimony that the acts happened before her 

mother went to Thailand in February or March of 2013 and happened during 

Emily’s fourth grade school year of 2012 to 2013, and also before the family’s 

May 2013 move from the Stonegate Drive house in Jacksonville.

Similarly, with Specifications 1 and 2 of Charge II [Article 134, UCMJ, 

child endangerment for providing alcohol to a child under 16], Emily and 

Anna described the many regular parties at the Range Road house in

Maryland. In their recorded interviews, Emily and Anna were unable to state 

with particularity exactly when Appellant provided them alcohol other than 

to say it generally happened while they were friends. Accordingly, the 

Government alleged a timeframe of “on or about April 2015 to on or about 

October 2016.”25

Appellant moved for dismissal of these Charges and Specifications alleging that they were vague, and, in the alternative, he moved the court to order 

the Government to produce a bill of particulars. The military judge denied 

Appellant’s motion in a written ruling. He found Appellant was sufficiently

on notice of the particular acts he would have to defend against. The military 

judge also denied Appellant’s later motion to reconsider his ruling. 

II. DISCUSSION

A. The Military Judge Applied an Incorrect Legal Standard to Deny 

Appellant’s Motion to Order Production or Conduct an In Camera 

Review of Emily’s Mental Health Records, But This Did Not Prejudice Appellant

1. Standard of review

We review a military judge’s decision to deny the production of mental 

health records for an abuse of discretion.26 A military judge abuses his 

discretion when: (1) the findings of fact upon which he predicates his ruling 

 

24 Charge Sheet.

25 Id.

26 United States v. Chisum, 77 M.J. 176, 179 (C.A.A.F. 2018).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

9

are not supported by the evidence of record; (2) if incorrect legal principles 

were used; or (3) if his application of the correct legal principles to the facts is 

clearly unreasonable.”27 Appellant is only entitled to relief if the military 

judge’s abuse of discretion “materially prejudiced his substantial rights.”28

Where a constitutional error is alleged, any such error must be shown by the 

Government to be “harmless beyond a reasonable doubt.”29

2. Military Rule of Evidence 513

The public policy behind Mil. R. Evid. 513 is that “[e]ffective psychotherapy . . . depends upon an atmosphere of confidence and trust in which the 

patient is willing to make a frank and complete disclosure of facts, emotions, 

memories, and fears.”30 Such treatment may cause “embarrassment or 

disgrace” and the “mere possibility of disclosure may impede development of 

the confidential relationship necessary for successful treatment.”31 The 

important public interest in promoting mental health treatment is balanced 

with the right of an accused to present the most probative evidence during 

criminal trials.

A party desiring to pierce the confidentiality of mental health treatment 

records must move the military judge to order production or, in the alternative, move the military judge to conduct an in camera review of the requested 

records. Before a military judge may even conduct an in camera review, the 

moving party must demonstrate by preponderance of the evidence, all of the 

following under Mil. R. Evid. 513(e)(3):

(1) a “specific factual basis” demonstrating a “reasonable likelihood” the records would yield evidence admissible under an exception to the privilege;

(2) the requested information meets one of the several exceptions 

under Mil. R. Evid. 513(d);

(3) the information sought is not merely cumulative; and

 

27 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).

28 Chisum, 77 M.J. at 179.

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

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

30 Jaffee v. Redmond, 518 U.S. 1, 10 (1996).

31 Id.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

10

(4) the requesting party made “reasonable efforts” to obtain similar information through non-privileged sources.

Because “evidentiary rules must cede to the constitutional needs of an 

accused,”32 a military judge may still determine that production, or in camera 

review, of mental health records is warranted despite the lack of an enumerated exception under Mil R. Evid. 513(d) being met, when such action is

constitutionally required. In making this assessment, the military judge must 

determine whether “infringement of the privilege is required to guarantee a 

meaningful opportunity to present a complete defense.”33

3. Analysis

The military judge applied the wrong legal standard in conducting his 

analysis. In his Conclusions of Law, he wrote that Appellant failed to 

demonstrate “a reasonable probability that the records contain information 

otherwise unavailable to the defense, and that the information sought is vital 

to the defense theory of the case.”34 This standard “conflate[s] the constitutionally required standard envisioned in Mil. R. Evid. 412 [pertaining to the 

admission of constitutionally required evidence] with Mil. R. Evid. 513 

[pertaining to the disclosure or in camera review of constitutionally required 

privileged materials]” which we have cautioned against.35 Because the 

military judge applied the wrong legal standard, we find he abused his 

discretion and turn to whether this materially prejudiced Appellant’s 

substantial rights.

We are convinced beyond a reasonable doubt that Appellant suffered no 

prejudice. First, there was no evidence Emily ever had the psychotic disorder 

Appellant alleges or that she ever took Thorazine because she was suffering 

from psychotic disorders or “laboring under delusions.” Appellant was far 

from showing a “specific factual basis” demonstrating a “reasonable likelihood” the records would yield any evidence admissible under an exception to 

the privilege. More important, the timeline does not support Appellant’s 

 

32 J.M. v. Payton-O’Brien, 76 M.J. 782, 788 (N-M. Ct. Crim. App. 2017) (citing 

United States v. Gaddis, 70 M.J. 248, 253 (C.A.A.F. 2011)).

33 Id. at 789 (emphasis in original).

34 App. Ex. LXXIV, “Ruling M.R.E. 513 (Sealed)” at 5.

35 Payton-O’Brien, 76 M.J. at 788 n.25. See also United States v. Banker, 60 M.J. 

216, 222 (C.A.A.F. 2004) (citing United States v. Valenzuela-Bernal, 458 U.S. 858 

(1982)).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

11

argument. Even if Emily had been suffering from psychotic delusions and had 

trouble appreciating reality in May 2017, Appellant would have to somehow 

tie those later-occurring problems to the timeframe when the alleged abuse 

actually happened, some four years prior. And there was absolutely no 

evidence she had any mental health problems when she was in fourth grade.

Finally, the very fact that Emily merely repeated the same disclosure she had 

previously made to her mother four years earlier indicates she had at least 

some mental connection to a past event, which weakens any argument that 

she was experiencing psychotic disorders. 

Despite his application of the wrong legal standard, we cannot find that 

the military judge’s decision to deny production of the privileged records, or 

his refusal to conduct an in camera review, undermined Appellant’s ability to 

make a constitutional defense or in any way contributed to the verdict.36 We 

find no prejudice.

B. The Military Judge Did Not Err in Denying Appellant’s Motion for 

a Continuance.

1. Standard of review

We review a military judge’s decision to deny a continuance for an abuse 

of discretion.37 An abuse of discretion occurs “where reasons or rulings of the 

military judge are clearly untenable and . . . deprive a party of a substantial 

right such as to amount to a denial of justice.”38 Included in the factors we 

consider are: 

surprise, nature of the evidence involved, timeliness of the request, substitute testimony or evidence, availability of witness 

or evidence requested, length of continuance, prejudice to opponent, moving party received prior continuances, good faith of 

moving party, use of reasonable diligence by moving party, possible impact on verdict, and prior notice.39

 

36 Chisum, 77 M.J. at 179 (citing Mitchell v. Esparza, 540 U.S. 12, 17-18 (2003)).

37 United States v. Weisbeck, 50 M.J. 461, 464 (C.A.A.F. 1999).

38 Id. (alteration in original) (internal quotation marks omitted) (quoting United 

States v. Miller, 47 M.J. 352, 358 (C.A.A.F. 1997)).

39 Id. (quoting F. Gilligan and F. Lederer, Court-Martial Procedure § 18-32.00 at 

704 (1991)).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

12

We focus on the “possible impact on verdict” factor of these non-exhaustive 

factors.

2. Analysis

Appellant alleges the military judge abused his discretion in denying his 

motion for a continuance. Appellant requested the continuance so he could 

have more time to research whether Emily ever took Thorazine or was having 

psychotic delusions when she made her 2017 report against Appellant. Our 

resolution of the Mil. R. Evid. 513 issue weighs heavily on our analysis here. 

Appellant had ample time—before the Government’s production of Emily’s medical records—to gather evidence of Emily’s psychotic delusions from 

non-privileged sources. Prior to Emily’s 2017 disclosure, Appellant lived with 

her and saw her almost continuously for nearly a decade. Appellant’s counsel 

also could have spoken with Emily’s friends and teachers, or even gathered 

evidence of psychotic delusions on social media. It stands to reason that if 

Emily did have actual psychotic delusions—contrary to her diagnosis of 

“depression without psychotic features”—this behavior would have manifested itself in some way other than solely in the repeated disclosure of her fouryear-old allegations against Appellant.

Similar to the reasons stated above, the issue was not necessarily whether Emily experienced psychotic delusions in 2017, but whether she experienced psychotic delusions in 2013 when the sexual abuse is said to have 

occurred. Even if she was experiencing mental health problems in 2017, the 

relevant issue was whether those same mental health problems caused her to 

make a false report in 2013. We find there was no possible impact on the 

verdict because there appears to be no evidence Emily was having psychotic 

delusions in 2017, and even if she were, it would not necessarily be relevant 

to the allegations she made in 2013. The military judge did not abuse his 

discretion.

C. The Military Judge Did Not Err in Denying the Admission of 

Impeachment Evidence Under Military Rule of Evidence 412

1. Standard of review and Military Rule of Evidence 412

This Court reviews a military judge’s decision to exclude evidence under 

Mil. R. Evid. 412 for an abuse of discretion.40 We are mindful that military 

 

40 United States v. Carpenter, 77 M.J. 285,288-89 (C.A.A.F. 2018).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

13

judges have “wide latitude” to impose reasonable limits on crossexamination.41

Under Mil. R. Evid. 412, evidence of an alleged victim’s “other sexual 

behavior” is generally not admissible in a proceeding involving an alleged 

sexual offense.42 There is an exception when the exclusion of the evidence 

would violate the constitutional rights of the accused.43 The evidence sought 

to be admitted must be relevant, material, and favorable—meaning “vital”—

to the Defense.44 Any evidence the military judge believes may be admitted 

under the “constitutional exception” must then undergo a Mil. R. Evid. 403 

balancing test.45 An accused’s right to cross-examination is not unlimited, 

and the Defense may not cross-examine a witness in “whatever way, and to 

whatever extent, the [D]efense might wish.”46

2. Analysis

Appellant moved the military judge to permit the Defense to crossexamine Emily and EJ on topics concerning (1) Emily’s sexual behavior with 

her boyfriend at the going away party a few days prior to her disclosure to 

EJ; (2) that EJ saw the “hickeys” Emily received from her boyfriend; (3) the

discussion EJ had with Emily after she saw the “hickeys”; and (4) Emily’s 

disclosures to EJ about her sexual history with her boyfriend. 

Appellant argued this cross-examination was vital to his defense. He 

wanted to portray Emily as resurrecting a recanted, years-old sexual assault 

complaint only because her mother confronted her about her sexual activity 

with her boyfriend. Appellant argued this evidence was constitutionally 

required because it explained Emily’s disclosure at the party of her allegations of Appellant’s sexual abuse as a deflection tactic, and when she was 

later confronted by her mother about her sexual activity, it showed a pattern 

of deflection. In addition, the Defense argued this evidence would show that 

 

41 United States v. Ellerbrock, 70 M.J. 314, 318 (C.A.A.F. 2011).

42 Mil. R. Evid. 412.

43 Mil. R. Evid. 412(b)(1(C). In contrast to Mil. R. Evid. 513, the constitutionallyrequired exception is specifically enumerated in Mil. R. Evid. 412. 

44 Banker, 60 M.J. at 222 (citing Valenzuela-Bernal, 458 U.S. at 867).

45 Id. at 222-23.

46 Ellerbrock, 70 M.J. at 318 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 

(1986)). 
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

14

Emily was willing to initially lie when she was confronted by her mother 

about sexual activity with her boyfriend. 

The military judge denied the motion but did allow Appellant to ask about 

how Emily raised the allegations in 2017, just without overt reference to 

Emily’s sexual behavior with her boyfriend or her initially lying to her 

mother about it. The result was that EJ testified she had forbidden Emily to 

see her boyfriend anymore, saying, “I felt like they were getting too close and 

too fast” and that she “made them break up.”47

The issue here is whether, despite the military judge’s ruling, Appellant 

still had the “opportunity for effective cross-examination.”48 We find that he 

did. Appellant was still able to convey that Emily’s motivations for her 2017 

disclosure appeared to spring from the fight with her mother over the nature 

of her relationship with her boyfriend. We are confident that the Defense 

theories of deflection and motive to fabricate were sufficiently established 

during Emily, EJ, and Anna’s cross-examinations. It is also unsurprising that 

a teenage girl would be understandably upset about such a turn of events and 

could give rise to motivations to any number of responses—including blame 

deflection and even false allegations.

Similarly, in United States v. Gaddis, a teenage girl who was the victim of 

sexual abuse by her step-father reported the misconduct to her mother. She 

reported it just before she was to receive a medical examination for a school 

activity. She was concerned the examination would show she had been raped 

by appellant. The victim’s mother had apparently discovered e-mails containing a rumor the victim was sexually active. The appellant wanted to argue 

that the victim believed her mother was having her medically examined 

because of the rumor of her sexual activity and she did not want the examination to reveal that to her mother. Our superior court found no abuse of 

discretion when the trial judge limited cross-examination to referring to the 

“mother’s discovery of the e-mails generically” but did not allow the appellant 

to refer to the contents of the e-mails or describe them as “relating to sexual 

activity.”49

 

47 Record at 1072-73.

48 Gaddis, 70 M.J. at 256 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).

49 Id. at 251.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

15

In opening, Appellant’s civilian trial defense counsel (TDC) told the members:

The family was like a powder keg ready to explode. And it 

needed a spark. The spark came through the course of May 1st

and 2nd of last year, when [Emily] was in trouble for having a 

prohibited romantic relationship with her boyfriend. 

The second time, and she was backed into a corner, there 

was this huge fight about it. She was caught, she denied it, she 

later admitted it. And she was told she was going to be cut off 

from her boyfriend. And it was in the context of that fight that 

she lodges this allegation.50

In closing, the civilian TDC told the members:

[I]n 2017 she’s in trouble with her mom, and you heard from 

[Anna], there were problems at school as well. Her friends were 

calling her a liar. Her friends were calling her an attention 

seeker. Her friends were calling her fake. Her friends were 

talking behind her back. And these allegations are made.51

From beginning to end, Appellant conveyed his narrative to the members, 

including during cross-examination. The arguments made were as forceful as 

they would have been had Appellant been able to elicit the lurid details of 

Emily’s sexual behavior. “And once the defendant has been allowed to expose 

a witness’[ ] motivation in testifying, it is of peripheral concern to the Sixth 

Amendment how much opportunity defense counsel gets to hammer that 

point home to the jury.”52 The military judge’s limitation of cross-examination 

was proper. We find no abuse of discretion.

Even if the military judge erred, we find the error was “harmless beyond a 

reasonable doubt” and did not contribute to the verdict obtained.53 The fact 

that Emily merely reminded her mother of four-year-old allegations is 

significant. Even if all of Appellant’s theories about Emily and her motivations for her 2017 disclosure to her mother were true—that she only raised 

the allegations to deflect blame, and that she was dishonest when it came to 

 

50 Record at 713.

51 Id. at 1679.

52 Gaddis, 70 M.J. at 257 (internal quotation marks omitted) (quoting United 

States v. James, 61 M.J 132, 136 (C.A.A.F. 2005)).

53 Chisum, 77 M.J. at 179 (quoting Mitchell, 540 U.S. at 17-18).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

16

her sexual activity with her boyfriend—the probative force of this argument 

would be marginal at best. The issue for the members was the veracity of 

Emily’s 2013 allegations and whether Appellant sexually assaulted her when 

she was in fourth grade, not what her motivations were when she was in 

eighth grade. Emily’s less-than-pure motivations in 2017—if they were so—

were not dispositive of the crucial issue of whether or not Appellant sexually 

abused her. There might be a different result if Emily had not previously 

made any consistent allegations. But she did, and the proper focus was on the 

veracity of the 2013 allegations, not what her motivations were in 2017.

Using the Delaware v. Van Arsdall54 test to evaluate for prejudice, this 

Court considers the following factors: (1) the importance of the witness’ 

testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating the testimony of 

the witness on material points; (4) the extent of cross-examination otherwise 

permitted; and (5) the overall strength of the prosecution’s case.55

While it is clear Emily’s testimony was central to the Government’s case, 

it was significantly augmented by supporting testimony from EJ about 

Emily’s prior consistent allegations from 2013 and Emily’s stated reasons for 

recanting. Emily’s testimony was also corroborated by her disclosure to Anna, 

which was made long before the fight with her mother over her boyfriend.

Emily’s school counselor also testified about her disclosure. The net result of 

this testimony showed Emily’s 2017 disclosure was consistent with prior 

disclosures going back to near the time when the alleged sexual abuse 

occurred. 

The cross-examination was functionally the same as that sought by Appellant, just without the salacious details of Emily’s sexual activity with her 

boyfriend. And while Appellant may argue he was deprived of the opportunity to demonstrate Emily’s dishonesty when she denied and then admitted the 

sexual activity to her mother, he was still able to offer evidence of Emily’s bad 

character for truthfulness. Appellant was allowed to present evidence from 

one of EJ’s friends that in 2013, she believed Emily had bad character for 

truthfulness, albeit on childish things such as lying about homework and not 

washing her hair. Finally, the military judge provided the standard instruction on Emily’s bad character for truthfulness.

 

54 475 U.S. 673 (1986).

55 United States v. Jasper, 72 M.J. 276, 282 (C.A.A.F. 2013) (citing Van Arsdall, 

475 U.S. at 684).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

17

As for the overall strength of the Government’s case, EJ testified about 

Emily’s 2013 report and how it was similar in detail to her 2017 report. The 

members also received a credible explanation for why Emily recanted in 

2013, owing to fear of what would happen to her family. Finally, we consider 

the fact that, although he denied the allegations the next day while sober, 

Appellant did not deny the allegations when EJ and then Emily confronted 

him in 2017. Appellant’s first failure to deny the allegations was certainly a 

factor in the strength of the Government’s case. Overall, we find that even if 

Appellant had been allowed the cross-examination he sought, it would have 

barely registered in the members’ analysis. Thus, we conclude that even if 

there was any error, it was harmless beyond a reasonable doubt.

D. Appellant’s Specifications Provide Sufficient Particularity

1. Standard of review

“Whether a specification states an offense is a question of law that is reviewed de novo.”56 This court reviews the decision of a military judge to deny 

a motion for a bill of particulars for an abuse of discretion.57 “To establish an 

abuse . . . requiring reversal, appellant must show actual surprise or prejudice at trial.”58

2. Analysis

An accused must be given notice through a specification of what his alleged misconduct was, to include the “time and place and nature and circumstances of the offense with clearness and certainty.”59 Part of this notice 

requirement implicates due process within the Fifth Amendment to the 

Constitution as a bar to future prosecutions under the Double Jeopardy 

Clause, and implicates the Sixth Amendment in allowing a criminal defendant a meaningful opportunity to mount a defense. 

The Government charged Appellant with various sexual misconduct 

against Emily “from on or about August 2012 to on or about May 2013” and 

child endangerment of Emily and Anna “on or about April 2015 to on or about 

 

56 United States v. King, 71 M.J. 50, 51 (C.A.A.F. 2012).

57 United States v. Williams, 40 M.J. 379, 381 n.4 (C.M.A. 1994).

58 Id. (citing United States v. Mobley, 31 M.J. 273 (C.M.A. 1990)).

59 United States v. Cruikshank, 92 U.S. 542, 566 (1875).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

18

October 2016.”60 Appellant argues these specifications were vague because 

they did not afford him the opportunity to defend himself. He also argues the 

military judge abused his discretion in denying his motion for a bill of 

particulars. We turn first to the issue of the sufficiency of the specifications. 

The Government is not required to allege a specific date unless it is an 

“essential element” of the crime.61 In child sexual assault cases, longer 

charging windows are allowed,62 provided an accused still has reasonable 

notice of what he is defending against and has an opportunity to defend 

himself. “Certainly, prosecutors should be as specific as possible in delineating the dates and times of abuse offenses, but we must acknowledge the 

reality of situations where young child victims are involved.”63

In United States v. Williams, a child sexual assault case in which offenses 

were alleged to have occurred over a two-month period, our superior court 

held that because Articles 125 and 134, UCMJ, did not make time a “material 

element for appellant’s criminal offenses, no Fifth Amendment violation 

occurred.”64 Additionally, our superior court has held that when the Government charges “on or about” in a specification, it is “not required to prove 

those exact date, if a date reasonably near is established.”65 We find that 

neither Article 120b, UCMJ, (Charge I) nor Article 134, UCMJ, child endangerment (Charge II), have time as a material element. The charge sheet also 

clearly shows the Government used “on or about” language in the relevant 

specifications. We find no Fifth Amendment Due Process violation.

The next question is whether the charging window in these specifications 

deprived Appellant of reasonable notice of what he is defending against. In 

the aforementioned Williams case, the appellant developed a romantic 

relationship with the single mother of a six-year-old girl that lasted about 

fifteen months. Several times per week, the appellant would go to the 

 

60 See Charge Sheet, Charge I, Specifications 2-5; Charge II, Specifications 1,2.

61 Williams, 40 M.J. at 382 (citing Ledbetter v. United States, 170 U.S. 606, 612 

(1898); United States v. Turner, 975 F.2d 490, 494 (8th Cir. 1992); United States v. 

King, 703 F.2d 119, 124 (5th Cir. 1983)).

62 See, e.g., Valentine v. Konteh, 395 F.3d 626, 632 (6th Cir. 2005); Hunter v. New 

Mexico, 916 F.2d 595, 600 (10th Cir. 1990).

63 Valentine, 395 F.3d at 632.

64 Williams, 40 M.J. at 382.

65 United States v. Hunt, 37 M.J. 344, 347 (C.M.A. 1993) (emphasis in the original) (citing United States v. Nersesian, 824 F.2d 1294, 1323 (2nd Cir. 1987)).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

19

mother’s home after his work shift ended and stay the night. In the morning, 

the mother would leave for work, leaving the appellant and her daughter in 

the home. About a year after the sexual assaults occurred, the girl disclosed 

the abuse. She testified that the incident occurred “before Halloween,” while 

there were “different color leaves . . . on the ground,” and that she was

wearing a “pink sweatsuit”66 to school that day. This was as specific as she 

could be. The Government’s charging window was “during September 1988 to 

October 1988.”67 In Williams ̧ the appellant had sufficient notice prior to trial, 

never attempted to make an alibi defense, and was able to “test the victim’s 

memory and veracity.”68 Our superior court held this charging window was 

sufficient.

Some four years after the alleged incident, Emily was only able to recall

that the sexual assault happened while she was in the fourth grade. This 

placed the incidents roughly from between August 2012 until May 2013, 

which was reflected in the specifications. Emily also remembered the 

incidents occurred when she lived at the house on Stonegate Drive in 

Jacksonville, from which the family moved in May 2013. Additionally, the 

Government provided discovery to Appellant indicating Emily called her 

mother to report the incidents. This call was sometime in February or March 

of 2013 when Emily’s mother was in Thailand for her father’s funeral. The 

Government also disclosed Emily’s statements saying that the sexual 

assaults took place in the family home. While still a relatively broad charging 

window, this certainly put Appellant on notice of not only what the alleged 

acts were, but also where they occurred, and a general time frame of when 

they occurred. 

During trial, Appellant was able to probe Emily’s memory and had an 

opportunity to attack the veracity of her testimony. He was able to do so 

because the specifications provided him some reasonable notice of what the 

allegations were, what the underlying circumstances were, and a general 

time-window of when they happened. Finally, the specifications concerning 

Emily would allow Appellant to “plead a former acquittal or conviction” in 

case “any other proceedings are taken against him for a similar offence.”69 We 

 

66 Williams, 40 M.J. at 380 (alteration in original).

67 Id.

68 Id. at 382 (citing United States v. Arteaga-Limones, 529 F.2d 1183, 1193 (5th 

Cir. 1976), cert. denied, 429 U.S. 920 (1976)).

69 Russell v. United States, 369 U.S. 749, 764 (1962) (quoting Cochran and Sayre 

v. United States, 157 U.S. 286, 290 (1895); Rosen v. United States, 161 U.S. 29, 34 
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

20

find the specifications concerning Emily (Charge I, Specifications 2, 3, 4, and 

5) to be sufficient.

Largely the same analysis applies to the specifications concerning child 

endangerment from Charge II in violation of Article 134, UCMJ. The timewindow for the specifications was from on or about April 2015 to on or about 

October 2016. This appeared to coincide with Emily and Anna’s memories of 

the parties at the Range Road house in Maryland and playing beer-pong with 

Appellant. And just as with the specifications from Charge I, Appellant was 

able to test the memory and veracity of both Emily and Anna. The Government also called two petty officers who were Appellant’s friends and attended

the parties. Appellant was able to cross-examine them, too. Finally, Appellant himself called another petty officer friend as a witness to describe what 

occurred during the parties. Although the exact dates of the parties were not 

known, Appellant knew exactly which parties the Government alleged 

related to the misconduct. The specifications and the discovery materials 

clearly placed him on reasonable notice and we find no error.

We now turn to the military judge’s denial of Appellant’s motion for a bill 

of particulars. A bill of particulars is not a tool for discovery and should not 

be used to “force detailed disclosure of acts underlying a charge, or to restrict 

the Government’s proof at trial.”70 The purpose of a bill of particulars is to:

inform the accused of the nature of the charge with sufficient 

precision to enable the accused to prepare for trial, to avoid or 

minimize the danger of surprise at the time of trial, and to enable the accused to plead the acquittal or conviction in bar of 

another prosecution for the same offense when the specification 

itself is too vague and indefinite for such purposes.71

Appellant’s stated goal in requesting a bill of particulars was to enable 

him to potentially present an alibi defense. When he requested a bill of 

particulars, he had already received in discovery the full investigation 

detailing Emily’s allegations. Although we acknowledge Appellant would 

have been better situated to potentially present an alibi defense if a specific 

 

(1896); Hagner v. United States, 285 U.S. 427, 431 (1932); Potter v. United States, 155 

U.S. 438, 445 (1894); Bartell v. United States, 227 U.S. 427, 431 (1913); Berger v. 

United States, 295 U.S. 78, 82 (1935); United States v. Debrow, 346 U.S. 364, 377-78 

(1953)).

70 Rule for Courts-Martial [R.C.M.,2016] 906(b)(6), Discussion. 

71 Id.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

21

date could have been alleged, the law does not require the Government to 

provide information it does not have and cannot reasonably ascertain. The 

Government is not required to force a child witness to guess, or even artificially create, a certain date or time beyond the child’s understanding or real 

memory. Undoubtedly, this would make it easier for an accused to disprove 

an allegation by casting doubt upon the date offered by the child witness. But 

this is not the purpose of a bill of particulars.

The military judge denied Appellant’s motion in a written ruling. In it he 

found the Government had provided Appellant with multiple recorded 

interviews with Emily wherein she specifically identified the locations in 

Appellant’s home where “to the best of her recollection, the offenses took 

place.”72 In addition, the Government provided more detail in its response to 

Appellant’s Motion to Dismiss. The military judge correctly applied the law, 

concluding the specifications allowed Appellant to “understand what particular act or omission to defend against.”73 We find no abuse of discretion. 

E. The Military Judge Did Not Err in Allowing Members to Use 

Evidence of One Charged Offense to Prove Other Charged Offenses 

1. Standard of review

We review a military judge’s ruling to admit evidence under Mil. R. Evid. 

404(b) for an abuse of discretion.74 We apply this standard to the “underlying 

evidentiary ruling”75 rather than to the alleged instructional error that 

resulted from the evidentiary ruling. “The abuse of discretion standard is a 

strict one, calling for more than a mere difference of opinion.”76 “A military 

judge abuses his discretion when: (1) the findings of fact upon which he 

predicates his ruling are not supported by the evidence of record; (2) if 

incorrect legal principles were used; or (3) if his application of the correct 

legal principles to the facts is clearly unreasonable.”77

 

72 App. Ex. LIV, “Ruling: Motion to Dismiss Specifications 2-7 of Charge II” at 1.

73 Id. at 2 (citing Discussion to R.C.M. 307(c)(3).

74 United States v. Harrow, 65 M.J. 190, 201-02 (C.A.A.F. 2007).

75 United States v. Jeter, 78 M.J. 754, 771 (N-M. Ct. Crim App. 2019).

76 United States v. White, 69 M.J. 236, 239 (C.A.A.F. 2010).

77 United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

22

2. Analysis

Appellant alleges error because the military judge allowed the Government to use an instance of a charged “grooming behavior” to prove his motive 

and intent in sexually assaulting Emily. The military judge permitted the 

Government to argue that Appellant’s charged act of providing alcohol to 

Emily while she was underage could be used to prove he sexually assaulted 

her in 2013.78

Prior to trial, Appellant filed a motion in limine to prevent the Government’s use of evidence that Appellant “groomed” Emily by providing her with 

“vape” electronic cigarettes, that he watched (legal) pornography in her 

presence, and provided Emily and her friend Anna with alcohol.

The military judge denied the motion applying the well-known test from 

United States v. Reynolds79 for determining the admissibility of uncharged 

misconduct under Mil. R. Evid. 404(b): (1) the evidence must reasonably 

support a finding that Appellant committed the prior crimes, wrongs, or acts; 

(2) the evidence must make a fact of consequence more or less probable; and 

(3) the probative value of the evidence must not be substantially outweighed 

by the danger of unfair prejudice. 

We note Appellant alleges the issue of whether he provided alcohol to 

Emily, a charged offense, was not litigated prior to trial. This is incorrect. In 

his ruling the military judge also wrote, “Although the Defense attacks 

[Emily’s] credibility as a ‘pathological liar,’ the members could reasonably 

choose to believe her testimony, especially when combined with [Anna’s] 

testimony that AM1 Jacinto did in fact provide both her and [Emily] with 

alcohol.”80 He also wrote in one of his Findings of Fact, “Providing electronic 

cigarettes, watching pornography together, and providing alcohol to [Emily] 

are actions consistent with ‘reducing boundaries between an offender and a 

victim.’ ” The military judge’s ruling was also clearly referenced and ex-

 

78 The military judge also instructed the members they could use the grooming 

evidence to find Appellant was guilty of touching Emily’s buttocks and hips between 

April 2015 and October 2016. Record at 1629; App. Ex. CIX at 12. The members 

acquitted Appellant of that specification.

79 29 M.J. 105, 109 (C.M.A. 1989).

80 App. Ex. LVI, “Ruling: Defense Motion in limine: Mil. R. Evid. 404(b): ‘Grooming’ ” at 3. This written ruling was dated 7 June 2018, just over a week before the 

trial began.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

23

plained many times during the course of the trial.81 In a pre-trial Article 

39(a) UCMJ, session, the Government’s expert discussed Appellant permitting Emily to drink alcohol.82 The Government also referenced this behavior 

in its response to Appellant’s Motion in limine concerning the Mil. R. Evid. 

404(b) offenses.83

Appellant also argues the Government never provided pretrial notice that 

he provided Emily alcohol and that this amounted to the Government using 

uncharged and unnoticed evidence under Mil. R. Evid. 404(b). This is not 

what happened. The Government used a broad charging window for the 

occasions when Appellant offered Emily and Anna alcohol, but it did not 

charge it as “divers occasions.” When the Government attempted to elicit 

evidence from Emily of more than one occasion, TDC objected on the grounds

that any additional occasion was uncharged misconduct and without proper 

pretrial notification. The military judge sustained that objection and only 

permitted the Government to offer evidence of a single instance of Appellant 

providing alcohol to Emily. The military judge found the probative value of 

the evidence to be high, stating that it suggested a plan to “desensitize 

[Emily] to illicit, risk-taking behavior and to encourage her to keep it secret 

from her mother, thus facilitating the sexual abuse.”84

As we recently noted in United States v. Jeter, the Reynolds test dealt 

with the admissibility of uncharged misconduct, yet our superior court has 

used it when reviewing the “use [of] evidence of charged misconduct to prove 

intent for another charged offense.”85 Thus, the Reynolds test is the proper 

framework for evaluating both uncharged and charged misconduct in the 

context of Mil. R. Evid. 404(b). We also stated in Jeter that “[a]s early as 

1984, our superior court recognized that evidence related to one charged 

offense may be admitted to prove motive or intent for another charged 

offense.”86 Our superior court made clear in United States v. Hills,87 that 

 

81 Record at 1573, 1574, 1580.

82 Id. at 181.

83 Appellate Exhibit XXXII, “Government Response to Defense Motion in limine: 

MRE 404(b) Concerning Uncharged Offenses” at 1, 2.

84 Appellate Exhibit LVI at 3, “Ruling: Defense Motion in limine: M.R.E. 404(b): 

‘Grooming’.”

85 Jeter, 78 M.J. at 771 (citing United States v. Tanksley, 54 M.J. 169, 176 

(C.A.A.F. 2000)).

86 Id. at 770.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

24

charged misconduct (subject to the Reynolds test) can properly be used to 

prove other charged misconduct.88

We find no errors with the military judge’s findings of fact and conclude 

he used the correct legal principles. We therefore focus on whether his 

application of the law to the facts was “clearly unreasonable.”89 There was 

clearly sufficient evidence for a reasonable factfinder to find by a preponderance of the evidence that Appellant provided alcohol to Emily—satisfying the 

first prong of Reynolds. We find the evidence did make a “fact of consequence 

more or less probable”—specifically that when Appellant allowed Emily to 

engage in “shared, secretive, illicit, risk taking behavior” that was kept secret 

from Emily’s mother, this is the type of behavior that could facilitate “complicity with the long term secrecy of the acts” and reduce Emily’s credibility.90

Specifically, the Government’s expert testified that grooming does not only 

consist of behavior that predates sexual abuse; it can also consist of behavior 

that post-dates prior sexual abuse. Pertinent to this case, the Government’s 

theory of non-propensity relevance was that Appellant provided alcohol to 

Emily in 2016, in part, to perpetuate an ongoing relationship of secrecy and 

special favors to make it more likely that Emily would remain silent about 

his prior abuse. This satisfies the second Reynolds prong. Finally, conducting 

the balancing test under Mil. R. Evid. 403, the military judge found the 

probative value of the evidence was that it suggested a plan to “desensitize 

[Emily] to illicit, risk-taking behavior and to encourage her to keep it secret 

from her mother,” and this was not substantially outweighed by the danger of 

unfair prejudice or any other factors set forth in Mil. R. Evid. 403. We agree 

with the military judge’s analysis and application of the law and find no 

abuse of discretion.

 

87 75 M.J. 350 (C.A.A.F. 2016) (charged offenses not admissible as propensity 

evidence under Mil. R. Evid. 413 to prove other charged offenses).

88 Id. at 355. (“Charged misconduct is already admissible at trial under M.R.E. 

401 and 402, and it is not subject to exclusion under M.R.E. 404(b). Thus, as a matter 

of logic, it does not fall under M.R.E. 413, which serves as an exception to M.R.E. 

404(b).”).

89 Ellis, 68 M.J. at 344.

90 App. Ex. LVI at 2.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

25

F. Appellant Must Exhaust His Administrative Remedies Before 

Seeking Judicial Relief for Post-Trial Confinement Conditions

Appellant’s final two AOEs are submitted pursuant to United States v. 

Grostefon.91 Appellant is confined at the Naval Consolidated Brig Miramar 

and, due to the Brig policy, is prevented from communicating with his 

biological sons, who are now approximately ten, nine, and four years old, and 

were not alleged to be the victims of any of his offenses. This policy has, 

apparently, resulted in them having had no contact with their father for the 

past several years. During sentencing, EJ testified about the effect of 

Appellant’s actions on the family, saying, “And the boys questioning every 

day where their dad is, having to be on our toes around them, so they don’t 

know anything. They think he’s on deployment.”92

Appellant challenges the Brig policy under Article 55, UCMJ,93 and the 

First, Fifth, and Eighth Amendments to the Constitution. He argues the 

policy deprives him of his parental rights in violation of Article 55, UCMJ,

and the Eighth Amendment’s prohibition against “cruel and unusual punishment” and also violates his right to familial association under the First 

and Fifth Amendments.

While this Court has the authority to review Appellant’s alleged errors 

arising from the violations of Article 55, UCMJ, and the Eighth Amendment, 

we will not consider his assignment of error arising under the First and Fifth 

Amendments. Our superior court has specifically held that the “practice of 

considering material outside the record should not be expanded beyond the 

context of Article 55, UCMJ, and the Eighth Amendment.”94

1. Standard of review and the law

We review allegations of violations of the Eighth Amendment and Article 

55, UCMJ, de novo.95 This Court has authority under Article 66, UCMJ, to 

“ensure that the severity of the adjudged and approved sentence has not been 

unlawfully increased by prison officials.”96 Appellant must show “as an

 

91 12 M.J. 431 (C.M.A. 1982).

92 Record at 1755.

93 10 U.S.C. § 855 (2016) (cruel and unusual punishments prohibited).

94 United States v. Jessie, ___ M.J. ___, No. 19-0192, 2020 CAAF LEXIS 188 at 

*20-21 (C.A.A.F. Apr. 6, 2020).

95 United States v. Pena, 64 M.J. 259, 265 (C.A.A.F. 2007).

96 United States v. White, 54 M.J. 469, 472 (C.A.A.F. 2001).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

26

objective matter, that the alleged abuse or harassment caused pain and, as a 

subjective matter, that the officer in question acted with a sufficiently 

culpable state of mind.”97

2. Administrative remedies

A prisoner “must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions.”98

A prisoner, absent “unusual or egregious circumstance” must demonstrate he 

has (1) “exhausted the prisoner-grievance system” and (2) “petitioned for 

relief under Article 138, UCMJ.”99 We review de novo the mixed question of 

law and fact of “whether an Appellant [has] exhausted administrative 

remedies.”100

3. Analysis

At first blush, the Brig policy appears to be arbitrary and tailored solely 

for the administrative convenience of the Brig rather than to address any 

specific valid concern over prisoner or guard safety, child safety, or maintaining good order and discipline. The problem is, we only have a first blush and 

not a complete picture. Had Appellant filed an Article 138, UCMJ, complaint 

and exhausted whatever administrative remedies the Brig offers and 

attached them to the record, we would have a more complete picture. During 

appeal, the only documents Appellant moved to attach to the record were a 

copy of Naval Consolidated Brig Miramar Minor Contact Policy dated 11 

January 2016 and a 2008 article from the Urban Institute Justice Policy 

Center, “Broken Bonds: Understanding the Needs of Children With Incarcerated Parents.” We granted that Motion but received nothing else from 

Appellant. Because there is no evidence he sought administrative relief or 

filed an Article 138, UCMJ, complaint, we find Appellant has not sought the 

necessary administrative remedies before seeking judicial relief.

However, we feel compelled to add that conditions in confinement 

amounting to Article 55, UCMJ, or Eighth Amendment violations are fair 

 

97 Id. at 474. (internal quotation marks omitted) (quoting Freitas v. Ault, 109 F.3d 

1335, 1339 (8th Cir. 1997)).

98 United States v. Wise, 64 M.J. 468, 471 (C.A.A.F. 2007) (citing White, 54 M.J at 

472).

99 White, 54 M.J. at 472 (citation and internal quotation marks omitted).

100 Wise, 64 M.J. at 471.
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

27

game for appellants to petition for relief from this Court.101 Under Article 66, 

UCMJ, we are required to only approve sentences that are “correct in law and 

fact.” Should some action by the Government convert a sentence that is 

“correct” as adjudged and approved by the convening authority into one that 

is not “correct,” then we would be obligated to intervene.102 We ultimately 

approve a sentence “on the basis of the entire record”103—which we should 

note could easily include items attached to the record during appeal. But that 

is up to an individual appellant to decide what he moves this Court to attach.

In United States v. Jessie, our superior court held that in fulfilling our 

duties to affirm only so much of a sentence that is correct in law and to 

determine sentence appropriateness, we have clear authority to consider 

“materials outside the entire record”104 when it comes to Article 55, UCMJ, 

and Eighth Amendment claims. That being said, the hurdle to an appellant 

seeking such relief, absent an “unusual or egregious circumstance,”105 is to 

exhaust his administrative remedies at the brig and file an Article 138, 

UCMJ, complaint. If an appellant desires to attach records demonstrating 

such an allegation and the remedies sought, we surely have the authority to 

attach those documents to the record and use them in considering whether a 

violation occurred and whether the sentence continues to be “appropriate.” In 

the face of brig policies that violate a post-conviction prisoner’s Article 55, 

UCMJ, and Eighth Amendment rights, we have the authority to affirm only 

so much of a sentence that is correct in law and that is appropriate. 

That is not to say this Court will engage in clemency, which is “bestowing 

mercy” and “treating an accused with less rigor than he deserves.”106 “Sentence appropriateness involves the judicial function of assuring that justice is 

done and that the accused gets the punishment he deserves.”107 Confinement 

conditions may very well alter an accused’s punishment into something worse

 

101 United State v. Gay, 75 M.J. 264, 267 (C.A.A.F. 2016).

102 United States v. Erby, 54 M.J. 476, 477 (C.A.A.F. 2001) (quoting White, 54 

M.J. at 472) (finding CCAs have Art. 67(c), UCMJ, authority “to determine . . . if the 

adjudged and approved sentence is being executed in a manner that offends the 

Eighth Amendment or Article 55”).

103 Article 66, UCMJ.

104 Jessie, 2020 CAAF LEXIS 188 at *10.

105 White, 54 M.J. at 472 (citation and internal quotation marks omitted).

106 United States v. Healy, 26 M.J. 394, 395 (C.M.A. 1984). 

107 Id. (emphasis added). 
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

28

than he deserves.108 It has been said that “since adherence to the principles of 

‘law’ does not invariably produce justice, equity is necessary.”109 Article 66 in 

that sense is a statutory paradox; the “Chancellor’s foot”110 is sometimes what 

the law requires, rather than a tool of last resort. Still, we must be mindful of 

Blackstone’s warning of the dangers of “equity without law”111—which is 

precisely why this Court must insist on administrative measures being 

pursued by an appellant and some record on which to base our use of our 

statutory powers of quasi-equity.112 The “awesome, plenary de novo power of 

review”113 of this Court, and of our sister service courts of criminal appeals,

has been called the “proverbial 800-pound gorilla when it comes to their 

 

108 White, 54 M.J. at 475 (Sullivan, J., concurring) (“I am heartened that this 

Court has finally and squarely held in this case and also in United States v. Erby, 54 

M.J. 476 (C.A.A.F. 2001), that the lower courts have the duty and the jurisdiction to 

review whether the sentence imposed by a court-martial is being unlawfully

increased by prison officials.”).

109 Simonds v. Simonds, 45 N.Y.2d 233, 239 (N.Y. 1978) (citing Aristotle, Nichomachean Ethics, Book V, ch 9, pp 1019-1020 [McKeon, ed Oxford: Clarendon Press, 

1941] (“Law without principle is not law; law without justice is of limited value”).

110 See Grupo Mexicano De Desarrollo v. Alliance Bond Fund, 527 U.S. 308, 332-

33 (1999) (Scalia, J.) (Quoting seventeenth-century English scholar John Selden’s 

Table Talk, “For law we have a measure, and know what to trust to—Equity is 

according to the conscience of him, that is Chancellor; and as that is larger, or 

narrower, so is Equity. ‘T is all one, as if they should make the standard for the 

measure the Chancellor’s foot. What an uncertain measure would this be? One 

Chancellor has a long foot; another a short foot; a third an indifferent foot. It is the 

same thing with the Chancellor’s conscience.”). See also, United States v. Nerad, 69 

M.J. 138, 149 (C.A.A.F. 2010) (Stucky, J., dissenting) (cert. denied, 562 U.S. 1065 

(2010)).

111 “And law without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law: which would make every judge a 

legislator, and introduce most infinite confusion; as there would then be almost as 

many different rules of action laid down in our courts, as there are differences of 

capacity and sentiment in the human mind.” 1 William Blackstone, Commentaries.

*62.

112 This Court and our sister courts of criminal appeals are not courts of equity. 

Our superior court has held that our Article 66(c), UCMJ, powers, are not “unfettered” and must be “exercised in the context of legal—not equitable—standards, 

subject to appellate review.” Nerad, 69 M.J. at 140 (citing United States v. Quiroz, 55 

M.J. 334, 339 (C.A.A.F. 2001)), cert. denied, 562 U.S. 1065 (2010). 

113 United States v. Beatty, 64 M.J. 456, 458 (C.A.A.F. 2007) (quoting United 

States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990)).
United States v. Jacinto, NMCCA No. 201800325

Opinion of the Court

29

ability to protect an accused.”114 But if the proverbial 800-pound gorilla acts 

arbitrarily, Congress will permanently “lock this gorilla in a cage.”115

III. CONCLUSION

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

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

fact and that no error materially prejudicial to Appellant’s substantial rights 

occurred. Arts. 59, 66, UCMJ.

The findings and sentence are AFFIRMED. 

Senior Judge TANG and Judge LAWRENCE concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court

 

114 United States v. Jessie, 2018 CCA LEXIS 609 (A. Ct. Crim App. Dec. 28, 2018) 

at *25 (Schasberger, J., dissenting) (unpub. op.) (quoting United States v. Parker, 36 

M.J. 269, 271 (C.M.A. 1993), aff’d, ___ M.J. ___, No. 19-0192, 2020 CAAF LEXIS 188 

(C.A.A.F. Apr. 6, 2020).

115 Id.