This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________

UNITED STATES

Appellee

v.

Jonathan QUEZADA, Lance Corporal

United States Marine Corps, Appellant

No. 21-0089

Crim. App. No. 201900115

Argue October 20, 2021—Decided December 20, 2021

Military Judges: Matthew J. Kent (motions) and

John L. Ferriter (arraignment, motions, and trial)

For Appellant: Lieutenant Daniel O. Moore, JAGC, USN

(argued).

For Appellee: Lieutenant Jennifer Joseph, JAGC, USN

(argued); Lieutenant Colonel Christopher G. Blosser, USMC,

Major Kerry E. Friedewald, USMC, and Brian K. Keller, 

Esq. (on brief); Lieutenant Colonel Nicholas L. Gannon, 

USMC, and Lieutenant Gregory A. Rustico, JAGC, USN. 

Judge MAGGS delivered the opinion of the Court, in 

which Chief Judge OHLSON, Judge SPARKS and Judge 

HARDY, and Senior Judge EFFRON, joined.

_______________

Judge MAGGS delivered the opinion of the Court.

Military judges must give the members “appropriate 

instructions” before they deliberate on findings. Rule for 

Courts-Martial (R.C.M.) 920(a). The standard “false 

exculpatory statements” instruction informs the members 

that if the accused makes a statement tending to establish his 

or her innocence, and the statement is later shown to be false, 

the members may consider “whether this circumstantial 

evidence points to consciousness of guilt.” Dep’t of the Army, 

Pam. 27-9, Legal Services, Military Judges’ Benchbook, ch. 7, 

para. 7-22 (2020). This Court previously has stated that the 

false exculpatory statements instruction “announces a correct 

principle of law.” United States v. Colcol, 16 M.J. 479, 484

(C.M.A. 1983); see also Wilson v. United States, 162 U.S. 613,

620–21 (1896) (upholding a similar instruction). But in this 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

2

case, Appellant asserts that the instruction violated his 

presumption of innocence because he was charged both with 

committing a substantive offense and with making a false 

official statement relating to that offense. Upon careful 

consideration of Appellant’s arguments, however, we find no 

error. We therefore affirm the decision of the United States 

Navy-Marine Corps Court of Criminal Appeals (NMCCA). 

United States v. Quezada, No. NMCCA 201900115, 2020 CCA 

LEXIS 378, 2020 WL 6268490 (N-M. Ct. Crim. App. Oct. 26, 

2020) (unpublished).

I. Background

D.E.A, a seventeen-year-old civilian, accused Appellant of 

providing her with whiskey and, without her consent, licking 

her vagina and anus and touching other parts of her body. 

During a subsequent investigation into the incident, 

Appellant told agents of the Naval Criminal Investigative 

Service (NCIS) that he did not lick or touch D.E.A.’s vagina, 

or used words to that effect. Appellant also made exculpatory 

statements to his wife, to a 911 operator, and to a military 

policeman desk sergeant. Laboratory analysis of swabs of 

D.E.A.’s vagina, anus, and ear later identified DNA evidence 

that strongly confirmed D.E.A.’s accusations against 

Appellant.

Appellant was charged with one specification of violating 

a lawful general order by providing alcohol to a minor, one 

specification of making a false official statement by telling the 

NCIS agents that he did not touch or lick D.E.A.’s vagina, one 

specification of sexual assault by bodily harm by penetrating 

D.E.A.’s vulva with his tongue, and one specification of 

abusive sexual contact by bodily harm by touching D.E.A.’s 

ear, anus, and other named body parts with his tongue, in 

violation of Articles 92, 107, and 120 of the Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 892, 907, 920 (2012 & 

Supp. IV 2013–2017). Appellant pleaded not guilty to all 

charges and specifications.

A general court-martial with members tried Appellant. 

Before the members deliberated on findings, the military 

judge informed counsel of his intention to provide a false 

exculpatory statements instruction. Trial defense counsel 

offered a brief response: “We object to the false exculpatory 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

3

[statements instruction] because of the potential confusion 

with the Article 107, false official [statement charge and 

specification].” Trial defense counsel did not set forth on the 

record a request for tailoring of the instruction, nor did trial

defense counsel request on the record any other modification 

of the instruction.

The military judge, however, determined that the 

requested instruction was “reasonably raised by the 

evidence,” and rejected trial defense counsel’s objection. The 

military judge then instructed the members as follows:

There has been evidence that after the offenses 

were allegedly committed, the accused may have 

made a false statement or given a false explanation 

about the alleged offenses. Conduct of an accused, 

including statements made and acts done, upon 

being informed that a crime may have been 

committed, or upon being confronted with a criminal 

charge, may be considered by you in light of other 

evidence in the case in determining the guilt or 

innocence of the accused. If an accused voluntarily 

offers an explanation or make[s] some statement 

tending to establish his innocence, and such 

explanation or statement is later shown to be false, 

you may consider whether the circumstantial 

evidence points to a consciousness of guilt. You may 

infer that an innocent person does not ordinarily 

find it necessary to invent or fabricate a voluntary 

explanation or statement tending to establish his 

innocence. . . . [T]his inference is not required.

Whether the statement that was made was 

voluntary or was false is for you to decide. You may 

also properly consider the circumstance under which 

the statements were given, such as whether they 

were given under oath and the environment under 

which they were given. Whether . . . evidence as to 

an accused’s voluntary explanation or statements 

points to a consciousness of guilt, and the 

significance, if any, to be attached to any such 

evidence are matters for determination by you, 

Court members.

The military judge repeatedly instructed the members 

that the Government had the burden of proving each element 

of each offense beyond a reasonable doubt. At no time did the 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

4

military judge discuss any lower standard of proof. The 

military judge also instructed the members as follows:

An accused may be convicted, based only on 

evidence before the Court, not on evidence of a 

general criminal disposition. Each offense must 

stand on its own, and you must keep the evidence of 

each offense separate. Stated differently, if you 

believe or find that the accused is guilty of one 

offense, you may not use that finding or belief as a 

basis for inferring, assuming, or proving that he 

committed any other offense. If evidence has been 

presented which is relevant to more than one 

offense, you may consider that evidence with respect 

to each offense to which it is relevant.

In arguments on findings, trial counsel focused mostly on 

testimony by D.E.A. about what happened and on the DNA 

evidence that implicated Appellant. Appellant’s civilian 

defense counsel identified reasons for doubting D.E.A.’s 

credibility and pointed to evidence that D.E.A. may have 

consented to the sexual conduct with Appellant. 

The court-martial found Appellant guilty of all the charges 

and specifications and sentenced him to six years of 

confinement and a dishonorable discharge. The convening 

authority approved the sentence as adjudged. On appeal to 

the NMCCA, Appellant renewed his objection to the false 

exculpatory statements instruction. The NMCCA, however, 

concluded that the military judge had acted properly in 

providing the instruction. Quezada, 2020 CCA LEXIS 378, at 

*7–12, 2020 WL 6268490, at *3–4.

In reaching this conclusion, the NMCCA recognized that 

the false exculpatory statements instruction is not 

appropriate for general denials of criminal wrongdoing. Id. at 

*9, 2020 WL 6268490, at *3. As this Court explained in Colcol, 

“in order to decide that an accused’s general denial of illegal 

activity is false, the factfinder must decide the very issue of 

guilt or innocence; and so the instruction would only tend to 

produce confusion because of its circularity.” 16 M.J. at 484. 

But the NMCCA found this restriction on using the false 

exculpatory statements instruction inapplicable in this case, 

reasoning:

Appellant did not make a general denial of criminal 

wrongdoing to NCIS; rather, he denied specific 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

5

conduct. He specifically denied that he licked 

[D.E.A.’s] vagina. However, the act of licking 

[D.E.A.’s] vagina would only satisfy one element of 

what became Specification 1 of Charge III, sexual 

assault. Appellant’s statement does not resolve the 

question of whether [D.E.A.] provided her consent to 

engage in that act, also a key element of the Article 

120 offense alleged in Specification 1 of Charge III.

Quezada, 2020 CCA LEXIS 378, at *10, 2020 WL 6268490, at 

*4.

The NMCCA also cited United States v. Opalka, 36 C.M.R. 

938, 944 (A.F.B.R. 1966), a decision that this Court also had 

cited in Colcol, 16 M.J. at 484. Quezada, 2020 CCA LEXIS

378, at *9 n.9, 2020 WL 6268490, at *3 n.9. In Opalka, the Air 

Force Board of Review indicated that a false exculpatory 

statements instruction should not “relate the instruction to 

any specific utterance of the accused” because doing so might 

“emphasize the prosecution’s case to the detriment of the 

accused” by “indicating a belief that the particular statement 

or explanation might be false.” 36 C.M.R. at 944–45. Relevant 

to this point, the NMCCA made the following observation:

[T]he military judge’s instruction did not identify 

any particular statement the members could 

consider to be a false explanation. There were 

multiple false exculpatory statements that came out 

in the course of the trial. Appellant also gave false 

explanations to his wife, to the emergency operator 

and to the Desk Sergeant.

Quezada, 2020 CCA LEXIS 378, at *10, 2020 WL 6268490, at 

*4.

Although Appellant argued in his brief to the NMCCA 

that the false exculpatory statements instruction undermined 

his presumption of innocence in violation of this Court’s 

decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), 

the NMCCA did not expressly address this argument. We 

consider this point now. The sole assigned issue is: 

The military judge instructed members that they 

could consider the fact that Appellant made the false 

official statement with which he was charged as 

evidence that he was guilty of another charged

offense. Did this instruction violate Appellant’s right 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

6

to a presumption of innocence under United States 

v. Hills, 75 M.J. 350 (2016)?

United States v. Quezada, 81 M.J. 174 (C.A.A.F. 2021) (order 

granting review).

II. Standard of Review

This Court has held that “[w]hether a panel was properly 

instructed is a question of law reviewed de novo.” United 

States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008). We review 

objections to instructions preserved at trial directly, but 

review objections not raised only for plain error. United States 

v. Williams, 77 M.J. 459, 462 (C.A.A.F. 2018). In this case, 

some of Appellant’s arguments appear to extend beyond the 

specific objection to the instructions that Appellant made at 

trial. The Government, however, has not argued that the 

Appellant forfeited any of the arguments that he now raises. 

Accordingly, given the lack of any objection by the 

Government, and our ultimate conclusion that Appellant’s 

arguments have no merit, we do not address the plain error 

standard.

III. Discussion

In accordance with the assigned issue, Appellant relies 

heavily on our decision in Hills in arguing that the instruction 

at issue violated his constitutional presumption of innocence. 

In Hills, the accused was charged with several offenses 

alleging sexual misconduct. 75 M.J. at 352. The military 

judge instructed the members that if they found by a 

preponderance of the evidence that the accused had 

committed one of the charged offenses—even if they were not 

convinced beyond a reasonable doubt that the accused had 

committed that charged offense—they could consider the 

evidence of that charged offense for its tendency to show that 

the accused committed the other charged offenses. Id. at 353. 

On appeal, this Court ruled that the instruction violated the 

constitutional requirement of due process “by creating [a] risk 

that the members would apply an impermissibly low 

standard of proof, undermining both ‘the presumption of 

innocence and the requirement that the prosecution prove 

guilt beyond a reasonable doubt.’ ” Id. at 357 (quoting United 

States v. Wright, 53 M.J. 476, 481 (C.A.A.F. 2000)).
United States v. Quezada, No. 21-0089/MC

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Appellant acknowledges that this case is somewhat 

different from Hills because the instructions in this case did 

not involve conflicting standards of proof relating to charged 

misconduct. As explained above, the military judge 

repeatedly told the members that the standard of proof was 

guilt beyond a reasonable doubt and never mentioned any 

other standard of proof. But Appellant contends that this case 

nonetheless “implicates Hills” because the false exculpatory 

statements instruction allowed the members to “use charged 

conduct” (i.e., the alleged false statement charged as a 

violation of Article 107, UCMJ) to “infer that [Appellant] was 

guilty of another charge” (i.e., the alleged sexual acts charged 

as a violation of Article 120, UCMJ). Appellant supports this 

position with several distinct but related arguments, which 

we now consider in turn.

A. Presumption of Innocence

Appellant contends that the military judge “undermined 

[his] presumption of innocence” in violation of our decision in 

Hills because “the false exculpatory statement instruction 

permitted the members to infer guilt based on conduct of 

which [he] was presumed innocent.” Appellant explains that 

the members “were told his denials of sexual assault may 

have been false and he was charged with a false official 

statement for denying a sexual assault.” In accordance with 

Hills and the precedent upon which Hills relied, we certainly 

agree with Appellant that he was presumed innocent of all 

the charges and specifications of which he was tried. But we 

cannot agree with the rest of Appellant s argument.

Contrary to Appellant’s specific assertions, the military 

judge did not instruct the members that “his denials of sexual 

assault may have been false.” Instead, the military judge 

instructed the members more generally that “the accused 

may have made a false statement or given a false explanation 

about the alleged offenses,” without identifying specific 

statements that might be false. Quezada, 2020 CCA LEXIS 

378, at *7, 2020 WL 6268490, at *3. As the NMCCA 

recognized, the evidence suggested a number of possible false 

statements, all of which would justify the false exculpatory 

statements instruction. In addition, Appellant was not 

“charged with a false official statement for denying a sexual 

assault”; he was charged with making a false official 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

8

statement that he did not lick D.E.A.’s vagina. As the 

NMCCA properly recognized, that statement is not a general 

denial of criminal wrongdoing because licking D.E.A.’s vagina 

would not have been a criminal offense if D.E.A. consented to 

the conduct or Appellant made an honest and reasonable 

mistake about whether D.E.A. consented.

More generally, if Appellant’s concern is that the 

instruction may have allowed the members to use evidence 

that Appellant made a false statement both as direct proof 

that he violated Article 107, UCMJ, and as circumstantial 

evidence of his consciousness of guilt with respect to the 

Article 120, UCMJ, offenses, we do not see an error. Our 

decision in Hills did not establish a general rule prohibiting 

the government from introducing evidence that is relevant to 

more than one offense, and no such general rule exists. As the 

military judge properly instructed the members, if evidence is 

relevant to more than one offense, the court-martial may 

consider that evidence with respect to each offense to which 

it is relevant. United States v. Vela, 71 M.J. 283, 286 (C.A.A.F. 

2012) (confirming that this instruction is an accurate 

statement of the law).

In Hills, the central problem was that the instructions 

“provided the members with directly contradictory 

statements about the bearing that one charged offense could 

have on another, one of which required the members to 

discard the accused’s presumption of innocence, and with two 

different burdens of proof—preponderance of the evidence 

and beyond a reasonable doubt.” 75 M.J. at 357. A Hills

problem therefore cannot arise absent confusing instructions 

about the burden of proof. Here, Appellant acknowledges that 

this case does not involve conflicting burdens of proof.

Accordingly, this case does not involve a Hills error.

B. Lack of Tailoring of the Instruction

At trial, as noted above, trial defense counsel offered a 

general objection to the false exculpatory statements

instruction but did not request any specific tailoring of the 

instruction on the record. In this appeal, Appellant now 

makes three arguments regarding a lack of tailoring of the 

false exculpatory statements instruction to the facts of this 

case. First, Appellant asserts that the military judge had a 
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Opinion of the Court

9

duty to “offer an instruction that provided guidance to the 

members as to which statements could be used to infer 

consciousness of guilt of the Article 120 charge.” Second, 

Appellant contends that “[w]ithout further tailoring or 

guidance, members could infer that conduct for which 

[Appellant] was presumed innocent was now evidence that he 

was guilty.” Third, Appellant faults the military judge for 

“fail[ing] to instruct the members that the false statement 

had any probative value other than it was false.” “Like in 

Hills,” Appellant asserts, the untailored “instruction gave the 

members conflicting statements about the bearing one charge 

had on another.”

Without addressing the question of whether the false 

exculpatory statements instruction may require tailoring in 

some instances, we conclude that each of Appellant’s 

contentions lacks merit in this case. First, the military judge 

did not have a duty to identify the specific statement or 

statements that the members might find false; on the 

contrary, doing so might have improperly influenced the 

panel members by placing special weight on some evidence as 

opposed to other evidence. See Opalka, 36 C.M.R. at 944–45

(recognizing that “it would have been impossible . . . to relate 

the instruction to any specific utterance of the accused 

without indicating a belief that the particular statement or 

explanation might be false”). Second, for the reasons that we 

have already provided above, we do not agree that the 

instruction compromised Appellant’s presumption of 

innocence. Third, the military judge did not have a duty to 

instruct the members that a false statement had any 

probative value other than that it was false. As the Supreme 

Court held in Wilson, and as we recognized in Colcol, a false 

exculpatory statement also may provide relevant 

circumstantial evidence, namely, evidence of a consciousness 

of guilt. Wilson, 162 U.S. at 620–21; Colcol, 16 M.J. at 484.

C. Propensity Evidence

Appellant also contends in his briefs that the false 

exculpatory statements instruction was improper because the 

instruction “allowed one charge to become propensity 

evidence for another” in violation of Hills. When asked to 

explain this contention at oral argument, Appellant’s counsel 

asserted that the members might have thought that merely 
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

10

because Appellant committed the Article 107, UCMJ, offense, 

he was more likely to have committed the Article 120, UCMJ, 

offenses.

With this contention, we cannot agree. Consciousness of 

guilt evidence is different from propensity evidence. 

Consciousness of guilt evidence is an acceptable form of 

circumstantial evidence used to show “awareness of an 

accused that he or she has engaged in blameworthy conduct.” 

Black’s Law Dictionary 379 (11th ed. 2019). By contrast, 

propensity evidence is a generally impermissible form of 

character evidence in which members “prove a person’s 

character in order to show that on a particular occasion the 

person acted in accordance with the character.” Military Rule 

of Evidence 404(b)(1). 

There is no propensity problem here. This Court presumes 

that the members follow the military judge’s instructions 

absent evidence to the contrary. United States v. Short, 77 

M.J. 148, 151 (C.A.A.F. 2018). In this case, the military judge 

did not in any way instruct the members that they could use 

propensity evidence. On the contrary, as described above, the 

military judge specifically instructed the members (1) that 

they could not find appellant guilty based “on evidence of a 

general criminal disposition”; (2) that “[e]ach offense must 

stand on its own, and you must keep the evidence of each 

offense separate”; and (3) that “if you believe or find that the 

accused is guilty of one offense, you may not use that finding 

or belief as a basis for inferring, assuming, or proving that he 

committed any other offense.” 

To be sure, the military judge in Hills also gave a 

“spillover instruction” to the members, warning them that 

“one offense carries no inference that the accused is guilty of 

another offense.” 75 M.J. at 356–57 (internal quotation marks 

omitted). But, as this Court reasoned, this instruction did not 

eliminate the propensity problem because, in a contradictory 

manner, “the military judge concluded the spillover 

instruction by reiterating, ‘However, [the Government] may 

demonstrate that the accused has a propensity to commit that 

type of offense.’ ” Id. at 357 (alteration in original). The 

spillover instruction in this case, by contrast, contained no 

similar remark about propensity. This case is thus 

distinguished from Hills.
United States v. Quezada, No. 21-0089/MC

Opinion of the Court

11

D. Circularity

Finally, Appellant argues that the NMCCA “erred when it 

found that the denial to NCIS did not cause a circularity 

problem.”

1 Specifically, Appellant faults the NMCCA because 

it “did not conduct an analysis of the effect the instruction had 

on his denial of the actus reus of a specific intent crime when 

his denial and the specific intent crime were both charged 

offenses.” In Appellant’s view, even if the alleged false 

statement was not a general denial of guilt, the falsity of the 

statement nonetheless turns on the ultimate question of his 

guilt or innocence.

We disagree. Appellant denied that he licked D.E.A.’s 

vagina. This statement was not a general denial of guilt and 

its falsity also did not determine the ultimate question of 

whether Appellant was guilty of the Article 120, UCMJ, 

offense. As the NMCCA recognized, to establish Appellant’s 

guilt, the Government had to prove that D.E.A. did not 

consent to Appellant’s conduct and that Appellant did not act 

based on a reasonable mistake of fact as to her consent. These 

additional elements did not automatically follow from the 

false statement. Indeed, in this case, civilian defense counsel 

vigorously addressed the issue of consent during his 

argument on the findings. 

For these reasons, we conclude that the military judge and 

the NMCCA did not err. We therefore have no need to address 

the parties’ arguments about whether any error would have 

prejudiced Appellant.

IV. Judgment

The judgment of the United States Navy-Marine Corps 

Court of Criminal Appeals is affirmed.

 

 

1 This argument appears to relate more to the application of Colcol

to this case than to the application of Hills. But we do not consider 

whether this argument falls outside the scope of the granted issue 

because the Government has addressed the argument in its briefs 

and because we ultimately conclude the argument has no merit.