United States v. Hamby

• Decision Date: 28 August 2018
• Docket Number: 201800056
• Parties: UNITED STATES OF AMERICA Appellant v. MICHAEL D. HAMBY Sergeant (E-5), U.S. Marine Corps Appellee
• Court: United States Court of Criminal Appeals, Navy-Marine Corps

UNITED STATES OF AMERICA Appellant
v.
MICHAEL D. HAMBY Sergeant (E-5), U.S. Marine Corps Appellee

No. 201800056

United States Court of Criminal Appeals, Navy-Marine Corps

August 28, 2018

This opinion does not serve as binding precedent, but may be cited as persuasive authority under NMCCA Rule of Practice and Procedure 18.2.

Military Judge: Lieutenant Colonel E.H. Robinson, Jr., USMC.

Appeal by the United States Pursuant to Article 62, UCMJ

For Appellant: Lieutenant Clayton S. McCarl, JAGC, USN; Captain Sean M. Monks, USMC.

For Appellee: Captain Thomas R. Fricton, USMC.

Before Hutchison, Fulton, and Tang, Appellate Military Judges

FULTON, SENIOR JUDGE.

This is an interlocutory appeal taken by the government under Article 62, Uniform Code of Military Justice (UCMJ).^[1] Following a pretrial hearing, the military judge denied the government's request to admit two exhibits prior to trial, and the military judge further ruled the exhibits would not be admissible at trial. The exhibits each contain a series of emails in which, according to the government, the appellee is one of the correspondents. The government does not know the identity of the second person in either series of emails; they are identified by name in the emails as "Alex" and "Ryan [B]." We will refer to the two email chains as the Alex chain and the Ryan chain. The government contends that the emails represent two separate conversations, one with Alex and one with Ryan, in which the appellee discusses plans to sexually abuse his stepdaughter. The Alex chain and Ryan chain email exchanges appear to have been conducted through the Craigslist anonymous email relay, meaning the emails from Alex and Ryan did not contain the senders' true email address but rather an anonymous Craigslist email address.

We are asked to decide if we have jurisdiction over this appeal and, if so, whether the military judge abused his discretion by not admitting this evidence. We conclude that we have jurisdiction to hear this appeal and that the military judge abused his discretion with respect to both email chains.

I. Background

A. The allegations against the appellee

The appellee faces five charges and 14 specifications. Three of the charges (the Charge and Additional Charges I and II), are relevant to this appeal.

In the five specifications under the Charge and two specifications under Additional Charge I, the government alleges that the appellee attempted to rape and sexually abuse two children, and attempted to conspire to rape and sexually abuse two children. These charges stem from an undercover Naval Criminal Investigative Service (NCIS) operation. The government alleges that an undercover special agent contacted the appellee about the appellee's Craigslist ad captioned "young girls, incest, taboo." The agent presented as the mother of two children, four and eight years old, and she agreed to allow the appellee to come to her residence on Camp Foster, Okinawa, Japan, to engage in sexual acts with the children. The special agent exchanged emails with an email address "mattdomen@mail.com" and through the "Kik" messenger application. The appellee agreed to a face-to-face meeting with the special agent at the Camp Foster food court. As he was leaving the food court with the agent to go the undercover agent's home, NCIS agents apprehended the appellee.

Additional Charge II and its four specifications allege that the appellee raped and sexually abused the his toddler stepdaughter, KLS, as well as another unnamed child.

B. The government's proffered evidence

1. Government motion to admit emails under Mil. R. Evid. 414

Before trial, the government filed two motions to pre-admit evidence. The first motion, Appellate Exhibit XLI, moves for the admission of two email chains under Military Rule of Evidence (Mil. R. Evid.) 414.^[2] The government avers the appellee's email provider turned over the two email chains in compliance with a search warrant for the contents of the appellee's email account, named "mattdomen@mail.com." The Alex chain appears on its face to be a series of emails, exchanged through the Craigslist email relay between a user who identifies himself as Alex and another Craigslist user identifying himself as Matt. The government claims to have identified Matt as the appellee because the emails were found in the mattdomen@mail.com email account.

The government argues the Alex chain shows that the appellee and Alex made and carried out a plan to sexually abuse the appellee's stepdaughter. We have here reproduced some of the relevant emails, stripped of headings and addresses:

15 October 2016 at 1310

[Alex]: Hey im Alex and im 25 and into things that would probably make my whole family disown me but what they don't know cant hurt them right? Anyways im puerto rican 5'9" and fit/slim if you needed to know. Discreet as well so no worries there. Ive talked to all sorts of taboo lovers mostly of the illegal kind and theyre some of the best people i get along with for some reason so hit me up and tell me what you're into if you want. It'd be good to know one more like-minded person

15 October 2016 at 1401

[Matt]: I like everything from beastiality to young incest Mostly young taboo for me. I have a young daughter and looking for someone to play with us

15 October at 1532

[Alex]: Dont know if you got my last message but im definitely into young taboo and id love to play with you guys. I can get on base if you're there or meet up in public to see if im safe and real and not a dangerous guy Just get along first if you want ya know?

16 October at 1236

[Matt]: That might be nice to do a meet and greet first. It's hard to get a time to do things with her since wife is a stay at home mom. She leaves periodically on appointments and such so those are the best times. Have you had experiences or know anyone else with connections to younger "subjects" I'd like to play with others or swap subjects for play if that makes sense

. . . .

18 October at 2153

[Matt]: Nice. One thing that may be an issue, if the wife does leave and your able to have fun with her, are you willing to be forceful. Sometimes she's hesitant obviously she's inexperienced. I don't mind

18 October at 2203

[Alex]: Ill. definitely be willing to be forceful. Would you mind me forcing my cock in her throat and making her gag? Or shall i be gently forceful?

18 October 2016 at 2235

[Matt]: If it doesn't leave marks im ok

. . . .

22 October at 1502

[Matt]: She is leaving now

22 October at 1503

[Alex]: Heh finally. So how do I get there

22 October at 1509

[Matt]: leave the parking of naval hospital and get turn left on wire mountain road, take a right on san jacinto road and then you will take your first left on pauma st. next you will take the first right and stay on that road. park next to the the third set of mailboxs on the right side of the road. but not in front of it obviously let me know when you get there

22 October at 1517

[Alex]: Had to go past the third set and park on the next street just past it. Im on temecula street if thats right

22 October at 1518

[Matt]: yes, thats fine. just didnt want you parked in front of the house. just walk back the direction you drove on the side with the mailboxes. i will stop you when you get in front of my house and invite you in

22 October at 1629

[Alex]: That was definitely fun and interesting. My god what timing have we got though. A second later and it might've gotten you and me into serious trouble

22 October at 1836

[Matt]: Yeah haha. That was fun. It all worked out though

2 December at 0111

[Alex]: Hey its Alex. So are we never gonna meet up again to play with your kid? If its something i did wrong let me know at least, dont just leave me hanging cause that would be messed up

In the same motion, the government moved to admit the Ryan email chain under Mil. R. Evid. 414. The Ryan chain appears on its face to be a chain of emails between a person using a Craigslist email address that according to the government is associated with the appellee and another person identified as Ryan [B]. Some relevant selections of this chain are reproduced here without headings and addresses, and edited to remove email-related artifacts:

5 October 2016 at 1639

[Ryan]: Remember I'm 3 hours away... I will leave rn if u can guarantee I get to play with her... U could tell your wife your taking her to get food

5 October 2016

[Craigslist address]: You can be here by 8?

. . . .

5 October at 1712

[Ryan]: On my way! How do u want this to play out!? I'm so hard rn... Address?

5 October

[Craigslist address]: It won't be long depending on when you get here my wife will be back about 830. But you can do whatever till then

5 October at 1720

[Ryan]: K cool what's the address? Once I type the address in the GPS I will tell you what time exactly I will be there

5 October

[Craigslist address]: 127 Temecula st oceanside ca 92058

5 October at 1722

[Ryan]: Gps says 750... See u then

5 October

[Craigslist address]: Try to be quick, if the wife comes back early I won't be able to do anything because that's around daughters bed time.

5 October at 1725

[Ryan]: Yeah I will be superquick probably just eat her ass and pussy make out with her and have her lick my cock… I could probably be in and out in 5 to 10 minutes

5 October

[Craigslist address]: Perfect

. . . .

5 October

[Craigslist address]: Wifes here

5 October at 1901

[Ryan]: Fuck man... This is fucked up

5 October

[Craigslist address]: She was supposed to get her nails done then goto walmart, but she changed her mind and didn't want to drive

...