In a published decision in United States v. Barnes, 74 M.J. 692, No. 20120308 (A. Ct. Crim. App. May 8, 2015) (link to slip op.), a three-judge panel of the Army CCA addresses the appropriateness of a M.R.E. 413 instruction to the members that allowed them to use the two charged offenses of rape (one in 2006, the other in 2009, and each involving a separate alleged victim) as propensity evidence to prove that the appellant committed those same rapes.

Specifically, the military judge instructed the members that:

Evidence that the accused committed the sexual assault alleged in each specification and charge may have no bearing on your deliberations in relation to the other specifications and charge, unless you first determine, by a preponderance of the evidence that it is more likely than not the offense alleged in one of these specifications occurred. For example, if you determine by a preponderance of the evidence, the offense alleged in one of the specifications occurred, even if you were not convinced beyond a reasonable doubt that the accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to which it is relevant in relation to the other charge.

Slip op. at 4-5. Then, in closing arguments, the trial (Government) counsel argued:

[L]ighting does strike twice and the accused is proof positive of it. . . . The accused struck again in 2009. It even started out in the same place, Fort Huachuca, Arizona, the accused is TDY. He had gotten away with it the first time. No charges have been pressed yet. So he thought, “hey this is a pretty good gig. I can go have sex whenever I want. Take it from an unsuspecting woman. They didn’t catch me three years ago.”

Slip op. at 5 (quoting record). And in rebuttal argument, the trial counsel elaborated:

I ask that you pay careful attention to all of the instructions in their entirety, not just certain portions of them, and know that the accused’s propensity to commit these offenses can be evaluated if you find he has at least committed the offense by [a] preponderance of the evidence standard. . . . The defense would like you to believe that the rape in 2009 and the rape in 2006 were so different, but yet, they are so similar. Each time the accused took what he wanted, when he wanted, without the consent of the other parties, of the victim. Each time. They are actually very similar.

Slip op. at 6 (quoting record) (marks in original). The appellant was convicted of both rapes and sentenced to confinement for 15 years, total forfeitures, reduction to E-1, and a dishonorable discharge. The convening authority reduced the confinement to 14 years and 9 months, but otherwise approved the sentence.

The Army CCA considers this instruction, and specifically the fact that the military judge failed to apply the factors identified in United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), including the test for relevance (M.R.E. 401) and for probative value (M.R.E. 403). In an opinion authored by Judge Tellitocci, the CCA affirms the findings and sentence.

Judge Tellitocci’s analysis begins by highlighting that:

In most reported cases, Mil. R. Evid. 413 is used by the prosecution to introduce evidence of uncharged misconduct in an attempt to establish the accused’s propensity to commit sexual assaults.

Slip op. at 7 (emphasis in original). However:

In the instant case, no evidence of uncharged misconduct was admitted. To the contrary, the only admitted evidence of sexual assault offenses committed by appellant was directly related to one or the other of the charged rapes. See United States v. Schroder, 65 M.J. 49, 52 (C.A.A.F. 2007) (evidence of both charged and uncharged sexual misconduct used as other acts evidence to prove charged offenses).

Slip op. at 8. And so, as a threshold matter, Judge Tellitocci finds “no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the ‘similar crime’ is also a charged offense.” Slip op. at 8-9.

But the CCA must cross another threshold: “is this a Mil. R. Evid. 413 case? When faced with a similar situation, the C.A.A.F., in United States v. Burton, determined that it was not. 67 M.J. 150, 153 (C.A.A.F. 2009).” Slip op. at 9. The trial counsel in Burton argued propensity in a manner similar to the trial counsel in this case, but the military judge in Burton did not give the members any instruction regarding the use of propensity evidence and CAAF concluded that:

As the Government did not offer the evidence under M.R.E. 413, it did not follow the steps required by M.R.E. 413. Therefore, it may not a posteriori justify its closing argument based on what it might have done.

67 M.J. at 153. Judge Tellitocci distinguishes this case from Burton because:

here the propensity issue was not belatedly raised by government counsel during closing argument. Rather, propensity was first raised by the government during an Article 39(a), UCMJ, session when the government expressed a desire to argue it during their closing. Then, during the instructions discussion with the parties, the military judge discussed the purpose behind Mil. R. Evid. 413 with the parties and determined that it was proper to give the instruction from the Benchbook with respect to the charged sexual offenses.

Slip op. at 10. And so the CCA finds that:

Application of Mil. R. Evid. 413 here is not a post hoc attempt to rationalize trial counsel’s argument. As it is clear that the military judge and the parties understood that Mil. R. Evid. 413 and propensity evidence were at issue – unlike Burton – this is indeed a Mil. R. Evid. 413 case.

The government’s propensity argument was a permissible use of Mil. R. Evid. 413’s exception allowing evidence of similar crimes in sexual assault cases. The error here is that the military judge did not make the predicate findings on the record regarding the permissibility of any inference of propensity to be drawn from evidence that was also properly admitted as proof of charged misconduct.

Slip op. at 10. The CCA then applies the Wright factors to conclude that “the argument by trial counsel was not error,” and that “any error in the form of the instruction inured to the benefit of appellant and was, therefore, harmless beyond a reasonable doubt.” Slip op. at 14.

24 Responses to “A significant M.R.E. 413 decision from the Army CCA”

  1. JTS says:

    So this has been a standard Government motion that many Army TCs have used recently in sex assault cases (it was one of about three I usually filed when I had multiple 120 specifications).  My question to DCs out there is does this ruling, or use of these 413 motions, make you all more or less likely to elect Judge Alone instead of a panel?  It seems to me that in a Judge Alone trial, these 413 motions don’t do all that much, but in front of a panel, they might make a difference.  I’m curious what more experienced DCs think.

  2. Tami a/k/a Princess Leia says:

    It’s interesting because use of MRE 413 in this situation conflicts with the instruction that judges give about not using the fact that an accused is charged with multiple crimes as evidence of guilt.  I don’t think it makes much of a difference either way with a panel or MJ.  I’ve also seen recently where the Government uses MRE 413 with other charged offenses to “bolster” the “main” offense, I have not yet seen an MJ deny such a motion.  However, it doesn’t increase the chances of the accused being found guilty.

  3. stewie says:

    To be honest, I’d quibble with the idea that this is a significant case. I’m not in agreement with the part about the the error in the instruction being to the benefit of the appellant, but otherwise, it feels like the expected/right outcome. 

  4. Defense Wizard says:

    JTS – For me, the existence of uncharged sexual misconduct OR charged sexual misconduct that differs greatly in time/victim from the charged offense, does change the calculus of JA vs. panel. But, lots of stuff goes into that calculus, including who the judge is, who’s on the panel, etc. With that said, the mantra in the MJ office when I was a TC was “you don’t have to worry about 404(b) if you charge everything.” With that said, does anyone else find if troubling that the uncharged acts need only be proven by a preponderance of the evidence for the panel to use it against the accused? It’s like saying “if you hear a rumor about the accused being rapey, you can use it to prove that he did it this time.” There was a Navy case in Hawaii fairly recently where the MJ allowed evidence of the accused’s former acts, even though he was acquitted on those same acts in a previous trial.

  5. stewie says:

    The problem Defense Wizard is that’s the result Congress intended in passing 413/414.  The only way to get around it at this point is to convince the courts it’s unconstitutional somehow…which is…unlikely.

  6. anon81 says:

    My thoughts exactly. I was going to note to Defense Wizard, “what difference does the acquittal make?” but you appear to have already spoken. Acquittal does not = innocent, and it seems perverse to think that a case never reported to the police, or never brought to trial, would somehow become more admissible than an allegation that resulted in an acquittal. The Hawaii case is not unique either. See, for example, US v. Payne, NMCCA 2013.

  7. Defense Wizard says:

    Anon81 – I think 413 is a perverse rule, and an affront to the notion that each charge should be tried on it’s merits! (said angrily, from my soapbox). The prohibition on propensity evidence is there for a reason, and 413/414 basically undoes 404(b) for a specific subset of crimes because they are icky. Why not allow this kid of evidence for larceny? Murder? But back to Payne and the Hawaii case. Given our system of sentencing, how do we know that the panel is not using underlying facts from the previous acquittal as aggravation? If the TC does their job well, most of the aggravating evidence should have come out during the merits.

  8. stewie says:

    I’d mostly agree DW, but yet, Congress made the rule and we have to follow it.

  9. Defense Wizard says:

    Stewie – Exactly. The rule is what the rule is. I’m not a fan, but just because I don’t like it doesn’t mean I don’t have to deal with it.

  10. DCGoneGalt says:

    I agree with stewie . . . not sure how this is a monumental case. 
    On the issue of liking/not liking 413 – Defense folks tend to not like 413 because it lets evidence against an accused in but despise 412 because it keeps evidence out against a complainant.  Victim prosecutors tend to write love poems to 412 because it keeps out evidence against their clients (ok, they only act as if the victim is their client) and 413 because it lets in evidence against the accused. 
    Trials should be a search for truth and our panels are generally able to sort out BS advocacy and give evidence its proper weight.  If I were king – Admit all relevant evidence and let the panel deal with it!

  11. Phil Cave says:

    Another set of rules based on pure politics.  The relevant “history” is toward the bottom of the page.  I’ll just quote a couple of small pieces.

    The overwhelming majority of judges, lawyers, law professors, and legal organizations who responded opposed new Evidence Rules 413, 414, and 415. The principal objections expressed were that the rules would permit the admission of unfairly prejudicial evidence and contained numerous drafting problems not intended by their authors.

    There was a lone objector to the above–the Department of Justice.  And as noted in the House statement.

    The second is the prepared text of an address–entitled “Evidence of Propensity and Probability in Sex Offense Cases and Other Cases”–by Senior Counsel David J. Karp of the Office of Policy Development of the U.S. Department of Justice. Mr. Karp, who is the author of the new evidence rules, presented this statement on behalf of the Justice Department

    Yes the Judicial Conference had found.

    “Furthermore, the new rules, which are not supported by empirical evidence, could diminish significantly the protections that have safeguarded persons accused in criminal cases and parties in civil cases against undue prejudice. These protections form a fundamental part of American jurisprudence and have evolved under long-standing rules and case law. A significant concern identified by the committee was the danger of convicting a criminal defendant for past, as opposed to charged, behavior or for being a bad person.

  12. stewie says:

    Not quite fair DCGG.  I differentiate between 413 and 414. I think there is a lot more evidence of propensity in child sex assault cases, then there is in adult sex assault cases. I don’t think there is anymore in the latter than in any other type of propensity case (thieves be stealing, druggies be toking, and (adult) rapists be raping) so I find the special carve out for 413 a lot less justifiable than 414 where, despite Phil’s link, I think there is some empirical evidence supporting propensity, particularly for pre-pubescent sex crimes.
    I find parts of 412 absolutely right and necessary.  The old “she was a slut” defense was and is reprehensible.  I think most judges and the courts have found the right balance, but I think young TC and some SVPs think everything is 412, and 412 should bar everything.

  13. DCGoneGalt says:

    You are right, the propensity for child sex assault recidivism is higher.  Introduce the evidence of the link and your evidence will be taken with more weight by the panel.  As for MRE 412 evidence, the “she’s a slut” defense is just as relevant as the “he’s done it in the past” 413 evidence, IMO.  What’s good for the goose is good for the gander.  The judge can determine relevancy.  If it is relevant, let the panel decide how to treat it.  If it is good for the goose (413) then it is good for the gander (412).

  14. stewie says:

    What defines a slut? How does that make it less likely she was raped? What if one panel member thinks a non-virgin is a slut?
    I think your attempt at equation is over-simplistic.

  15. Misplaced Weight says:

    stewie says:

    What defines a slut? How does that make it less likely she was raped? What if one panel member thinks a non-virgin is a slut? I think your attempt at equation is over-simplistic.

    Couldn’t promiscuous behavior by a complainant be relevant to whether an accused both objectively and subjectively believed there was consent to the sexual conduct in question?  It might not be dispositive, sure.  But, why wouldn’t it be relevant in cases where the accused has “raised” the issue of consent and thereby pressed it upon the government to prove his mens rea?  
    The burden to prove a guilty mind in sexual offenses is one which the government has – unconstitutionally, IMO – made every effort to relieve itself of having to prove.  I think the constitution demands that the government should have to prove both lack of consent in fact, and knowledge of that lack of consent by the accused.  But, with that burden not being placed upon the government these days for this particular brand of crime, unless the accused “raises” the issue, then why shouldn’t he be able to use the complainant’s behavior in order to do so?  I think it’s a shame to place an unconstitutional burden on a defendant and then tie his hands in how he is allowed to try to carry that misplaced weight. 

  16. Defense Wizard says:

    In my experience, 412 does not prohibit relevant evidence. Granted, I’m hardly the most experienced person in this comments section, and I generally bow to some of the dieties of MJ that often comment here, but even in my limited time as a defense counsel, I have found MJs receptive to cohesive arguments on why potential material otherwise prohibited by 412 can come in. With that in mind, however, I don’t know why we need a special rule on 412, when the same could be captured in 403. Calling the victim a slut without any articulable nexus to the case at hand is a waste of time and disctracting to the members.

  17. Anonymous Deployed Air Force SJA with initials NM says:

    Under MRE 412, relevant evidence can be excluded if exclusion would not violate the constitutional rights of the accused.
    IMO, a good practice for TC in these cases is to formally offer evidence of the charged offenses under MRE 413 and request the judge to do an analysis at the time the evidence is introduced – versus waiting until an 802 on instructions to request the 413 instruction.  My recollection is that failing to so offer the evidence before resting the TC’s case runs the risk of a judge holding that “this is not a 413 case” per US v. Burton.
    Just my 2 cents.

  18. DCGoneGalt says:

    Stewie:  You used the “she’s a slut” term so that’s what I used for the 412 evidence.  It’s not a matter of whether a complainant is a complainant is a “slut” but if a complainant has consented in the past under circumstances similar to the facts of a case then that is certainly as relevant as an uncharged and separate incident of the accused that is relevant, and admissible, under 413.  I think they both should be admissible because they are both relevant.  Right now the rules are stacked.  
    Defense Wizard:  I have found MJs differ on their approach to 412.  IMO, some use the Constitutional prong to admit most relevant evidence.  However, many will use mental gymnastics to find virtually anything inadmissible.  Another issue is that 412 evidence, even if relevant and admissible, is often willfully ignored by investigators and the government at the investigatory stage because of the current “climate”.  The defense needs separate investigators since investigations seem to steer clear of actually being open to exculpatory info, pretrial interviews have dried up, and Art 32s are now (in many cases) worthless.

  19. Paco says:

    One big problem with 412 excluding evidence is what trial counsels have done after the exclusion.  They tend to argue that “what kind of person” would meet a guy they barely knew from work or mutual friends and consent to have random sex with that evening under the circumstances.  However, they know the complainant has engaged in other behavior that most people would ask “what kind of person” would do that.  Anecdotally, because 412 excludes the complainant’s other random sexual excursions into public sex, group sex, violent sex, adulterous sex, etc the government tends to want to ask a panel of mostly married and often religious military members “why someone would consent to sex with someone they hardly knew in the backseat of a car during a girls night out?”  Well maybe because they are not the sweet little catholic girl the prosecutor is parading to the members.  And instead (as said previously within these comments) the “accused” knew about her previous similar rendezvous and assumed his number was called.
    Now juxtapose that hiding of evidence and limiting a potential defense with a 413/414 instruction that allows the members to consider an act twenty years prior (example and because something by preponderance may have happened you can assume the accused did similar things because of his propensity character.  Yet, you are not allowed to fully judge the complainant’s character.

  20. stewie says:

    Misplaced, how do you “objectively” get there? How does unrelated conduct with other people show anything objectively to say she wanted to do something with this person.  Is it volume of sex? Number of partners? What number objectively shows it, and what number does not?  How many men does she have to ___ to make it objectively evidence that she wanted to do something with him as well? I’m a guy.  I’ve had sex a time or two.  Despite that, believe me, I actually don’t want to have sex with every single woman I see.  Some women I would not touch with a ten foot pole.  I don’t care if I had sex with 100 women before them. No different for women except for those still living in the 50s.
    There’s an easy way to get there, and it’s even a built-in exception to 412, any evidence that shows she specifically wanted to do anything with him. 
    DCGG, the solution isn’t to bring in more stuff that isn’t relevant, instead the solution would be to fix 413 (or preferably get rid of it).
    Paco, obviously TC shouldn’t be allowed to make that argument.  DC should object and MJs should uphold that objection. It’s using 412 as a sword instead of a shield.

  21. G. Curvier says:

    Interesting commentary…I argued this case before ACCA and am hopeful that CAAF will give it a look in the fall. No matter which side of you fence you’re on, at least it’s interesting!

  22. k fischer says:

    re: Paco’s point
    I think that the defense counsel should request to reopen the case if that type of argument is made in order to rectify the panel being misled, and when the MJ denies the request, then the MJ should at least provide an instruction to disregard the argument and instruct the panel that the court previously granted the Government’s motion to suppress evidence of the complaining witness’s past sexual conduct.
    In a recent court-martial, the TC argued in closing that the accused could not produce any evidence that the complaining witness had any alcohol related offenses.  They were successful in suppressing two, or possibly three, alcohol related offenses.  We moved to reopen the case, and the MJ denied, but granted our motion to instruct the panel to disregard that argument and that the Court previously ruled that the complaining witness’s other alcohol related incidents were not admissible.  I think the members’ nods indicated they got what happened.

  23. stewie says:

    I think that’s fair and I’ve been on one significant retrial as DC where the government played that eating cake while having it role in suppressing evidence and then arguing “there’s no evidence” and the courts overturned it for that very reason.

  24. Phil Cave says:

    @Paco & Stewie.
    That’s similar to what happened to me in Savala.  The gubmint kept out a prior allegation because the MJ didn’t believe it was sufficiently “false.”
    The gubmint then opened the door, and the MJ kept it closed.  Thus allowing the 412 to be a shield and “sword.”  I semi-lost at NMCCA, but CAAF found error that was not HBRD.
    The end result is that Savala got an OTH in lieu of retrial.  Thus, the gubmint’s, IMHO, gamesmanship lost them a case in a big way.  Something for the gubmint to consider.