United States v. MCGINNIS III

Before DAVIS, de GROOT, and HARRELL Appellate Military Judges _________________________ UNITED STATES Appellee v. Edward C. McGINNIS III Corporal (E-4), U.S. Marine Corps Appellant No. 202500097 _________________________ Decided: 25 August 2026 Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judges: Matthew M. Harris (arraignment) Aran T. Walsh (trial) Sentence adjudged 17 October 2024 by a general court-martial tried at Marine Corps Recruit Depot, San Diego, California, consisting of officer and enlisted members. Sentence in the Entry of Judgment: reduction to E-1, forfeiture of all pay and allowances, confinement for 12 months, and a dishonorable discharge.  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court For Appellant: Lieutenant Commander Christopher C. McMahon, JAGC, USN For Appellee: Lieutenant Michael G. Osborn, JAGC, USN Lieutenant Erin H. Bourneuf, JAGC, USN Judge DAVIS delivered the opinion of the Court, in which Senior Judge HARRELL and Senior Judge de GROOT joined. _________________________ This opinion does not serve as binding precedent but may be cited as persuasive authority under NMCCA Rule of Appellate Procedure 30.2. _________________________ DAVIS, Judge: Appellant was convicted, contrary to his pleas, of three specifications of possessing child pornography and three specifications of distributing child por- nography, in violation of Article 134, Uniform Code of Military Justice (UCMJ). 1 Appellant asserts five assignments of error (AOEs): (1) the military judge erred by admitting the videos because they were not properly authenticated pursuant to Military Rule of Evidence (Mil. R. Evid.) 901(b)(1) or (4) and did not qualify as business records under Mil. R. Evid. 902(11); (2) the military judge abused his discretion under Mil. R. Evid. 403 by allowing the Govern- ment to publish several videos of child pornography to the members; (3) the military judge erred by refusing to declare a mistrial; (4) the military judge erred by allowing the Government’s digital forensic expert to render an expert opinion based, in part, on evidence that was suppressed; and (5) the evidence was factually insufficient to sustain Appellant’s convictions for possessing and distributing child pornography. Having considered the record as a whole and the pleadings of the parties, we find no prejudicial error and affirm the findings and sentence. 1 10 U.S.C. § 934. After findings, the military judge conditionally dismissed the three specifications of possessing child pornography. 2  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court I. BACKGROUND In May 2022, an employee of the company Kik 2 flagged communications sent by a user named “Moist Carrot” from the account “icaruslostwings,” be- cause the communications contained images or videos of suspected child por- nography. As a result, Kik generated a CyberTip report and forwarded it to the National Center for Missing and Exploited Children (NCMEC). The CyberTip was then forwarded by NCMEC to civilian law enforcement officials in Arizona because NCMEC was able to attribute the “icaruslostwings” account to an in- ternet protocol (IP) address in that state. Law enforcement in Yuma, Arizona initiated an investigation through which it was able to identify that the IP address utilized by the “ica- ruslostwings” account was serviced by the internet service provider (ISP) Char- ter Spectrum. A warrant was issued to Charter Spectrum, which returned in- formation that the IP address associated with “icaruslostwings” was linked to Appellant’s address on Marine Corps Air Station Yuma, Arizona. Through ad- ditional warrants sent to Kik and Yahoo/AOL, law enforcement was able to establish that the “icaruslostwings” Kik account was associated with the email address “treymcginnis@aol.com” and this email address belonged to Appellant. The warrant to Kik also returned the videos and images that the “ica- ruslostwings” account sent to other users, which law enforcement confirmed contained apparent child pornography. A “selfie” photograph of Appellant was also discovered to have been sent by the “icaruslostwings” account. A digital forensic examination of Appellant’s iPhone 13 uncovered evidence that the child pornography images and videos from the “icaruslostwings” account had once been present on the device. No actual files containing child pornography, however, were located on the phone. Investigators linked additional Kik accounts—“MasterRecco” and “Shadow_Hunter167”—to Appellant via warrant returns including subscriber information, email addresses, and IP addresses. These accounts were also flagged by Kik for sending child pornography images and videos to other users. Like the “icaruslostwings” account, these accounts were also operated under the name “Moist Carrot.” Prior to trial, the Government moved to admit Appellant’s Kik subscriber information, as well as the images and videos of child pornography it believed Appellant sent through his three Kik accounts. The Government’s theory of admissibility was that the information provided by Kik, to include the images 2 Kik is a cloud-based electronic service provider that allows users to exchange text messages and files. 3  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court and videos, qualified as certified domestic records of regularly conducted activ- ity under Mil. R. Evid. 902(11). Affidavits from a Kik custodian of records were provided in support of the Government’s motion. Over Defense objection, the military judge admitted the records in their entirety. At trial, the Defense re- newed its objection, and the military judge once again overruled the objection, noting further that based upon additional testimony presented at trial, the im- ages and videos were admitted under both Mil. R. Evid. 902(11) and Mil. R. Evid. 901. Having failed to prevail on its authenticity objection, the Defense next sought, under Mil. R. Evid. 403, to limit what evidence of child pornography would be published to the members. To strengthen its argument, the Defense, shortly before opening statements, offered to stipulate that the videos produced by Kik were indeed child pornography. The Government opposed the Defense offer to stipulate, and the military judge ruled that the Government could pre- sent its video evidence to the members subject to certain judicially-imposed limits to include: (1) presentation of video evidence could not exceed 18 minutes (3 minutes per specification); (2) video evidence would not be made available for the members to review in the deliberation room; and (3) videos of child rape and bestiality would not be presented. The military judge further cautioned the Government to focus its presentation of the evidence and to avoid subject- ing members to more evidence than was necessary. The Government’s presentation of the videos of child pornography incorpo- rated excerpts from approximately 19 videos and lasted for approximately 27 minutes. The actual playing of the videos of child pornography accounted for a fraction of the total time, 3 as time was spent directing the testifying agent to access various timestamps within the individual videos, moving from one video to the next, and swapping out three separate disks. After the Government’s presentation of the videos, the court took a recess. Following the recess, based upon its view that the display of the videos had visibly upset some of the members, the Defense moved for a mistrial, arguing that the publication of the videos cast doubt on the fairness or impartiality of the trial. The military judge conducted voir dire of several members, each of whom confirmed that they remained unbiased and would follow the military judge’s instruction on the presumption of innocence. The military judge further reminded the entire panel of his previous instructions regarding the presump- tion of innocence. All members indicated that they would continue to follow 3 A combined review of the audio recording of the hearing and the written record reflects that actual play time was likely less than 10 minutes—well within the military judge’s ruling, which limited the Government to 18 minutes. 4  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court this instruction. Further discussion of facts pertinent to the resolution of the assignments of error are provided below. II. DISCUSSION A. The Military Judge Did Not Err When He Admitted Images and Vid- eos of Child Pornography 1. Standard of Review We review a military judge’s evidentiary determinations for an abuse of discretion. 4 Military judges abuse their discretion if their findings of fact are clearly erroneous, their decisions are influenced by an erroneous view of the law, or their decisions are outside the range of choices reasonably arising from the applicable facts and the law. 5 2. Analysis Appellant argues that videos and images of child pornography obtained by Kik from his accounts were not properly authenticated under either Mil. R. Evid. 901 or 902(11). We find that the military judge did not abuse his discre- tion when he admitted the evidence under Mil. R. Evid. 901(b)(1) and 901(b)(4). We do not, therefore, resolve whether the evidence was properly admitted un- der Mil R. Evid. 902(11). “To satisfy the requirement of authenticating or identifying an item of ev- idence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it to be.” 6 Further, “[o]nce the pro- ponent has made the requisite showing, the trial court should admit the item, assuming it meets the other prerequisites for admissibility . . . in spite of any issues the opponent has raised about flaws in authentication. Such flaws go to the weight of the evidence instead of its admissibility.” 7 4 United States v. Wilson, 84 M.J. 383, 390 (C.A.A.F. 2024) (citing United States v. Hyppolite, l79 M.J. 161, 164 (C.A.A.F. 2019)). 5 Id. (citing United States v. Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010)). 6 Mil. R. Evid. 901(a); see also United States v. Lubich, 72 M.J. 170, 174 (C.A.A.F. 2013) (“Generally speaking the proponent of a proffered item of evidence needs only to make a prima facie showing that the item is what the proponent claims it to be . . . .”) (citation omitted). 7 Lubich, 72 M.J. at 174 (citation omitted). 5  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court Here, the Government sought to establish that the images and videos in question were the images and videos sent to other users through Appellant’s various Kik accounts. On this point, the military judge ruled: I find that the . . . authenticity of it has been satisfied under 901(b)(1) [and] (4). . . . It’s nonfungible. It has unique character- istics . . . . I find that the . . . evidence is more than sufficient to establish it for authentication purposes and the defense objec- tion continues to be overruled. 8 In addition, the military judge found: . . . the content data from Kik had otherwise been authenticated by [Mil. R. Evid.] 901(b)(1), that is, the testimony of Detective [Papa], 9 Agent [Bravo], and Investigator [Charlie], and R.C.M. 901(b)(4) the distinctive characteristics of the evidence, that is, the associated IP addresses, email accounts, consistencies of pat- terns of use of the name Moist Carrot, and what also appears to be a self-taken photograph from the accused’s phone. 10 Appellant, in fact, acknowledges that the Government could have authen- ticated the images and videos under Mil. R. Evid. 901(b)(1) and (4), but for what he perceived to be a gap in the testimony of the witness from Kik. 11 The perceived gap is that the Kik witness did not testify that the images and videos presented at trial were the ones that he initially flagged from Appellant’s ac- counts. 12 While it is true that the Kik employee did not formalistically verify, on the record, that the prosecution exhibits contained the exact images he extracted from Appellant’s Kik accounts, this was not required to sufficiently authenti- cate the evidence. Rather, Appellant elevates the standard of proof required by Mil. R. Evid. 901 and ignores the substantial evidence the military judge con- sidered prior to admitting the images and videos. Indeed, even without any testimony from the Kik employee, there was compelling evidence linking Ap- 8 R. at 1083. 9 All names in this opinion, other than those of Appellant, the judges, and counsel, are pseudonyms. 10 R. at 1129–30. 11 Appellant’s Brief at 32. 12 Appellant’s Brief at 34. 6  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court pellant to the Kik accounts, and there was also sufficient testimony and evi- dence that the images and videos entered into evidence were the ones flagged by Kik—a fact mostly conceded by Appellant in his Reply Brief. 13 Investigator Charlie testified that he reviewed a text file from Kik, which was returned in response to a warrant. The file listed each image or video sent from Appellant’s “icaruslostwings” account by its Global Unique Identifier (GUID). 14 Investigator Charlie utilized that text file to create Prosecution Ex- hibit 3 as a compilation of the GUIDs, IP addresses, and other pertinent infor- mation. Investigator Charlie then testified that the GUID for each of the im- ages and videos he included in Prosecution Exhibit 1 matched the GUID for each image and video in Prosecution Exhibit 3—the data sent from Kik. Inves- tigator Charlie then testified that he used a similar process to create Prosecu- tion Exhibit 8 (content from the MasterRecco account) and Prosecution Exhibit 14 (content from Shadow_Hunter167 account). The process as described by In- vestigator Charlie sufficiently laid the foundation for the admission of the child pornography content. 15 The military judge had more than enough information to admit the exhibits and, as such, did not abuse his discretion. B. The Military Judge Did Not Abuse His Discretion by Permitting the Government to Publish Excerpts of Evidence of the Charged Offenses 1. Standard of Review As noted above, we review a military judge’s evidentiary determinations for an abuse of discretion. 16 “[T]his Court must exercise ‘great restraint’ when it comes to concluding that a military judge abused his or her discretion in the 13 Appellant’s Reply at 2 (“Appellant doesn’t dispute that the videos established relevance and chain of custody from Kik to NCIS.”). Here, we note the well-established view that “authentication is a component of relevancy.” United States v. Blanchard, 48 M.J. 306, 309 (C.A.A.F. 1998). 14 A Globally Unique Identifier (GUID) is a file name, consisting of a series of let- ters, that is assigned by Kik to specific images. See R. at 945–46. 15 While the images and videos of child pornography were admitted prior to the testimony of the Kik employee, the Kik employee’s testimony was consistent with In- vestigator Charlie’s testimony, explaining that, in response to the warrants, he per- sonally provided law enforcement with the content from the “MasterRecco” and “Shadow_Hunter” accounts (R. at 1368), as well as the “icaruslostwings” account (R. at 1370). 16 Wilson, 84 M.J. at 390. 7  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court course of balancing the probative value and prejudicial effect of a piece of evi- dence.” 17 2. Analysis Appellant argues that the military judge abused his discretion by allowing the Government to publish several minutes of child pornography videos, and that the publication prejudiced Appellant. We disagree. Military Rule of Evidence 403 states, “The military judge may exclude rel- evant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, mislead- ing the members, undue delay, wasting time, or needlessly presenting cumu- lative evidence.” In response to the Defense objection, the military judge entered his initial findings under Mil. R. Evid. 403 as follows: I do find that the probative weight of . . . the actual evidence sufficiently outweighs the danger of unfair prejudice and that the . . . audio, the movement of the individuals, the additional camera angles, the sound, all are extremely probative as to the age of the individuals in these videos. And the government has a right to present that evidence. 18 When defense counsel later indicated a willingness to stipulate that the videos contained in the prosecution exhibits were indeed child pornography, the military judge further explained his rationale: There is the potential to present less prejudicial evidence in the form of a defense offer to stipulate. However, the Court is not inclined to force the government to stipulate to these elements just before opening statements and the Court agrees with the Air Force Court of Criminal Appeals[ 19] that these videos cannot readily be reduced to written words without losing some of the evidentiary and probative value or significant amount of it. 17 Id. at 395 (quoting United States v. Humpherys, 57 M.J. 83, 91 (C.A.A.F. 2002)). 18 R. at 847. 19 The military judge cited United States v. Buford for the proposition that “[s]how- ing excerpts of videos of child pornography admitted in evidence is a well-accepted practice in the federal courts for balancing the probative value of video evidence against its prejudicial effect, even over defense offers to stipulate to the videos’ content . . .” 2020 CCA LEXIS 78 at *29 (A.F. Ct. Crim. App. 2020). 8  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court . . . The Court has set very clear parameters on how they will be presented, how long they will be presented, the total amount that can be presented, and then has limited the videos from go- ing back with the members. So the distraction and the time needed is not high. After balancing all of these previously listed factors and con- sidering my previous court actions to reduce the prejudicial ef- fect in the presentation of this evidence, I find that the probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the members, and then needlessly presenting cumulative evidence even with the defense offer to stipulate. The objection is overruled. 20 Later, in response to the Defense motion for a mistrial, the military judge made additional findings under Mil. R. Evid. 403, which are relevant here: To defense’s point that they offered to stipulate to some of the . . . content . . . after seeing and observing the defense open- ing statement, in which their argument is that this material would go unobserved . . . I find that . . . viewing the material is . . . probative in that . . . anybody who saw even one video of this nature on their account or on their phone would . . . presumably take additional steps to ensure that there weren’t other videos. Additionally, seeing these videos is probative as to the termi- nal elements that the government must prove. Seeing these vid- eos is probative to the age of the individuals in the videos and the conduct at hand. 21 As he did at trial, Appellant relies on United States v. Merino-Balderrama 22 for the proposition that a trial judge may abuse his discretion when he fails to consider alternatives to evidence, such as stipulations of fact, in his analysis under Mil. R. Evid. 403. Appellant’s reliance on Merino-Balderrama is unper- suasive. In Merino-Balderrama, the U. S. Court of Appeals for the Ninth Cir- cuit concluded that the trial judge abused his discretion by allowing the Gov- ernment to show films of child pornography when alternatives, including the films’ box covers and an offer to stipulate, were more probative of the accused’s 20 R. at 871–72. 21 R. at 1133. 22 146 F.3d 758 (9th Cir. 1998). 9  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court guilt. 23 Appellant’s case is distinguishable because the trial judge’s Rule 403 analysis in Merino-Balderrama did not make findings with respect to how ev- identiary alternatives impacted the probative value of the films. 24 As noted supra, in Appellant’s case, the military judge did address the probative value of the videos in light of the proposed alternative and found the stipulation was not equally probative. In contrast to Merino-Balderrama, the military judge explained that the probative value of the videos was tied to the Government’s requirement to prove both knowledge and the terminal elements of an Article 134 charge— matters not addressed by the proposed stipulation which only conceded that the videos contained child pornography. 25 The military judge found this espe- cially pertinent in light of the Defense’s assertion in opening statements that the files were sent without Appellant’s knowledge. Finally, the military judge did, in fact, consider and employ alternatives to the publication of all of the content at the Government’s disposal, including reductions to the length of the video publication, precluding the videos from going back to the members, and excluding the most prejudicial videos from publication. Appellant correctly points out that Old Chief v. United States 26 provides an example of how a trial judge can abuse his or her discretion under Rule 403 by rejecting an accused’s offer to stipulate in favor of the actual evidence at the government’s disposal. The Supreme Court’s holding, however, was extraordi- narily narrow and related only to offers to stipulate to prior felony status when such a status is a necessary predicate of the criminal offense. 27 The main thrust of Old Chief, in actuality, cuts against Appellant’s position that his offer to stipulate vitiated the Government’s interest in presenting the videos of child pornography. [T]he accepted rule that the prosecution is entitled to prove its case free from any defendant’s option to stipulate the evidence away rests on good sense. A syllogism is not a story, and a naked 23 Id. 24 Id. at 762. 25 R. at 864. 26 519 U.S. 172 (1997). 27 Id. at 191–92 (analyzing Rule 403 within the context of an appellant who was charged under 18 U.S.C. § 922(g)(1) for possessing a firearm while being a felon and holding that admitting the full record of conviction violated Rule 403 when the appel- lant offered to stipulate to his felony status). 10  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court proposition in a courtroom may be no match for the robust evi- dence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story’s truth can feel put upon at being asked to take responsibil- ity knowing that more could be said than they have heard. A con- vincing tale can be told with economy, but when economy be- comes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best. 28 In its conclusion, the Supreme Court stated, “. . . the prosecutor’s choice will generally survive a Rule 403 analysis when a defendant seeks to force the substitution of an admission for evidence creating a coherent narrative of his thoughts and actions in perpetrating the offense for which he is being tried.” 29 We see no reason to diverge from this general rule in Appellant’s case. While the evidence was graphic, “that is the nature of much of the evi- dence in cases involving child pornography.” 30 An accused in a child pornog- raphy case unavoidably risks the introduction of evidence that could offend an average member. 31 The military judge took reasonable steps to ensure that the risk was not greater than necessary, and, as such, did not abuse his discretion. C. The Military Judge Did Not Err in Denying the Defense Request for a Mistrial 1. Standard of Review We will not reverse a military judge’s determination on a motion for mis- trial absent clear evidence of an abuse of discretion. 32 The standard for abuse of discretion is incorporated as discussed above. The abuse of discretion stand- ard recognizes that a military judge “has a range of choices and will not be reversed so long as the decision remains within that range.” 33 28 Id. at 189. 29 Id. at 192. 30 United States v. Hays, 62 M.J. 158, 164-65 (C.A.A.F. 2005). 31 Id. (citing United States v. Garot, 801 F.2d 1241, 1247 (10th Cir. 1986)). 32 United States v. Rudometkin, 82 M.J. 396, 400 (C.A.A.F. 2022) (citing United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003)). 33 United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214, 1217 n.3 (D.C. Cir. 1992)). 11  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court 2. Analysis Appellant’s argument on this AOE is largely predicated on his belief that the publication of the videos of child pornography was unduly prejudicial. Just as we found no abuse of discretion in permitting the Government to publish portions of the videos, we similarly find no abuse of discretion in denying Ap- pellant’s motion for a mistrial. “The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circum- stances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” 34 “[A] mistrial is an unusual and disfavored rem- edy. It should be applied only as a last resort to protect the guarantee for a fair trial.” 35 “Because of the extraordinary nature of a mistrial, military judges should explore the option of taking other remedial action, such as giving cura- tive instructions.” 36 At trial, Appellant immediately moved for a mistrial upon the conclusion of the Government’s publication of the videos of child pornography. Trial de- fense counsel assessed that the emotional impact of the video publication, which they believed was in violation of Mil. R. Evid. 403, would result in “sub- stantial doubts over the fairness of the proceedings” and the possibility that Appellant would be convicted not based upon admissible evidence, but due to “the shock value of the government’s evidence.” 37 The military judge entered findings of fact in which he described his obser- vations of the members during the presentation of the evidence: I observed Gunnery Sergeant [Romeo] begin to observe por- tions of each video, but he would periodically look down . . . . However, he did not have an . . . overtly emotional response. . . . Captain [Delta] did appear to breathe a little heavier during the presentation of the videos. Her eyes became a little bit glossy. She looked forward in a stoic manner . . . . 34 R.C.M. 915(a). 35 United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003) (citing United States v. Dancy, 38 M.J. 1 (C.M.A. 1993)). 36 United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009) (citing United States v. Fisiorek, 43 M.J. 244, 247 (C.A.A.F. 1995); United States v. Evans, 27 M.J. 34, 39 (C.M.A. 1988)). 37 App. Ex. LXXXIV at 4. 12  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court . . . I do not concur with the defense account that she was openly weeping . . . . First Lieutenant [Sierra] maintained a neu- tral face . . . . At times, she would shift in her chair and put her hand to her mouth. . . . It just appeared to be somebody who was considering difficult evidence . . . . I did not observe any strong response from Captain [Tango]. He – at one or two times, he made a face like he was – like the evidence was distasteful to him, which is very understandable. 38 The military judge also conducted voir dire of four members—each of whom unequivocally stated that viewing the child pornography did not impact their ability to remain unbiased or to follow the court’s instructions on the presump- tion of innocence. The military judge also re-instructed all of the members on the presumption of innocence, which all members indicated they would follow. Taking the military judge’s findings of fact and the remedial measures em- ployed by the military judge into account, denial of the motion for a mistrial was not an abuse of discretion. Criminal proceedings are often accompanied by emotional and graphic evidence which may understandably be upsetting to members. Granting a mistrial in every such instance would effectively grind the justice system to a halt. The key, therefore, is to determine whether the emotional impact of the evidence cast a substantial doubt upon the fairness of the proceedings. 39 Here, the military judge did not abuse his discretion when he concluded that it did not. The remedial actions, short of a mistrial, were appropriate under the circumstances. D. The Military Judge Did Not Err in Permitting the Digital Forensic Examiner to Provide an Expert Opinion 1. Standard of Review As noted above, we review a military judge’s evidentiary determinations for an abuse of discretion. 40 The standard for abuse of discretion is incorporated as stated above. 2. Analysis Upon disclosure by the Government that its digital forensic examiner (DFE), Mr. Echo, in his examination of Appellant’s iPhone 13, had exceeded 38 R. at 1128–29. 39 Rule for Courts-Martial 915(a). 40 United States v. Wilson, 84 M.J. 383, 390 (C.A.A.F. 2024). 13  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court the scope of Command Authorization for Search and Seizure, trial defense counsel moved to suppress evidence obtained from the phone. The military judge granted the motion in part, suppressing the “search action and the evi- dence resulting from that search in July of 2024,” but “not all evidence related to MasterRecco and shadow_hunter.” 41 The suppression ruling did not extend to any searches related to the “icaruslostwings” account. At trial, Mr. Echo tes- tified about his search of the iPhone only as it related to the “icaruslostwings” account and provided the opinion that Appellant’s iPhone 13 was utilized for “the transmission of the icaruslostwings data.” 42 After clear instruction from the military judge to not consider any evidence from the suppressed search in 2024, 43 Mr. Echo further provided the opinion that based only on the warrant returns and what he observed at trial, that the “icaruslostwings,” “Master- Recco” and “Shadow_Hunter” Kik accounts sent the files of alleged child por- nography to other distinct users. 44 Appellant argues that Mr. Echo’s testimony violated the military judge’s suppression ruling and incorporated information he learned when he exceeded the scope of the Command Authorization for Search and Seizure. This argu- ment is not supported by the record. Mr. Echo did not testify about any evi- dence he obtained from the iPhone as it related to the “MasterRecco” and “Shadow_Hunter” accounts. Further, he did not testify that Appellant’s iPhone was used to operate the “MasterRecco” or “Shadow_Hunter” accounts. In line with the suppression ruling and the military judge’s instructions during the testimony, Mr. Echo’s expert opinion only stated that the Kik accounts—not the iPhone—were used to send the files containing child pornography. Such testimony was appropriate and based only on the warrant returns from Kik and what he had observed from trial. As such, the military judge did not abuse his discretion when he permitted the testimony. 41 R. at 812. 42 R. at 1219–20. 43 R. at 1246; R. at 1247. 44 R. at 1249. 14  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court E. The Evidence Was Factually Sufficient to Sustain Appellant’s Con- victions for Possessing and Distributing Child Pornography 1. Standard of Review We follow the CAAF’s analysis in United States v. Harvey in assessing the three key components of the amended Article 66(d)(1)(B), UCMJ, factual suffi- ciency review: (1) Appellant’s specific showing of a deficiency of proof; (2) the Court affording appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence when we weigh the evidence and deter- mine controverted questions of fact; and (3) whether this Court is clearly con- vinced that the finding of guilty was against the weight of the evidence. 45 Further, the CAAF explained in Harvey that the degree of deference consti- tuting “appropriate deference to the fact that the trial court saw and heard the witnesses” will depend on the nature of the evidence at issue. 46 The CAAF spe- cifically stated that “when the CCA can assess documents, videos, and other objective evidence just as well as the court-martial, the CCA might determine that the appropriate deference is low.” 47 2. Analysis Appellant argues the evidence is factually insufficient because the Govern- ment failed to prove that Appellant knowingly possessed or distributed child pornography. To this end, Appellant highlights that no images were found on any of his devices, and no evidence was presented that he sought out the im- ages on the internet. Appellant further notes that the exchanges in which the files were sent to other users lacked accompanying text indicative of knowing possession or distribution. Finally, Appellant argues that the evidence only es- tablished that the files would have appeared on Appellant’s phone as thumb- nail images lacking a file name, and that the number of files containing child pornography were only a fraction of the thousands of files and messages sent during the relevant timeframes. Given that the evidence does lack some of the hallmarks often associated with knowing possession and distribution of child pornography, we find the Appellant has made a specific showing of a deficiency of proof. That deficiency 45 85 M.J. 127 (C.A.A.F. 2024). 46 Id. at 130. 47 Id. at 131. 15  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court of proof, however, does not leave this Court clearly convinced that the finding of guilty was against the weight of the evidence. The circumstantial case against Appellant was strong. Through subscriber data and digital forensics, the Government established Appellant’s ownership of three Kik accounts—all operated by the name “Moist Carrot.” Activity for each of the accounts was tracked to locations associated with Appellant, and forensic examination of the phone revealed that the Kik application was once present on the phone but had been removed. Each Kik account sent multiple files that meet the legal definition of child pornography. Images and videos that do not meet the legal definition of child pornography, such as child erotica and anime, were also sent from those accounts. An employee from Kik testified that an individual sending a video through Kik would take steps similar to those used in regular text messaging on a phone, including selecting the image from the gallery within the phone’s stor- age. The sender would then observe a thumbnail image with a still of the video. Mr. Echo testified that, while the actual video files were not located on Appel- lant’s phone at the time of the examination, digital artifacts, or footprints, of child pornography videos were located on Appellant’s phone, indicating that the actual media was, at one time, present on the device. Mr. Echo further opined, based upon the warrant returns from the three Kik accounts, that Ap- pellant’s Kik accounts sent child pornography to other users. As such, having given appropriate deference to the fact that the trial court saw and heard the witnesses and other evidence, 48 we are not clearly convinced that Appellant’s convictions are against the weight of the evidence. 48 The Government’s case largely consists of the images and videos in question and objective documentary evidence linking Appellant to the various Kik accounts utilized to transmit the media. Since we can assess this evidence just as well as the court- martial, we afford a lower level of deference. Harvey, 85 M.J. at 131. 16  United States v. McGinnis, NMCCA No. 202500097 Opinion of the Court 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 oc- curred. 49 However, we note that the Entry of Judgment does not accurately reflect the disposition of the charges. Although we find no prejudice, Appellant is en- titled to have court-martial records that correctly reflect the content of his pro- ceeding. 50 In accordance with Rule for Courts-Martial 1111(c)(2), we modify the Entry of Judgment and direct that it be included in the record. The findings and sentence are AFFIRMED. FOR THE COURT: