Three new – and particularly noteworthy – grants appear on CAAF’s docket.

First, an Army case challenges the use of charged offenses as admissible propensity evidence under Military Rule of Evidence 413. This issue was our #6 Military Justice Story of 2015:

No. 15-0767/AR. U.S. v. Kendell Hills. CCA 20130833. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GRANTING THE GOVERNMENT’S MOTION TO USE THE CHARGED SEXUAL MISCONDUCT FOR MILITARY RULE OF EVIDENCE 413 PURPOSES TO PROVE PROPENSITY TO COMMIT THE CHARGED SEXUAL MISCONDUCT.

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Hills is available here.

Next, in another Army case, CAAF specified an issue questioning the proper test for prejudice when evidence is admitted in violation of the statutory protections of Article 31(b):

No. 16-0019/AR. U.S. v. Asa M. Evans. CCA 20130647. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issue specified by the Court:

WHERE THE ARMY COURT OF CRIMINAL APPEALS FOUND EVIDENCE WAS ADMITTED IN VIOLATION OF APPELLANT’S ARTICLE 31(b), UCMJ, RIGHTS, DID THE COURT ERR IN APPLYING THE KERR PREJUDICE TEST AS OPPOSED TO THE BRISBANE HARMLESS BEYOND A REASONABLE DOUBT TEST?

Briefs will be filed under Rule 25.

The Army CCA’s opinion in Evans is available here.

Finally, CAAF ordered oral argument on a specified issue in an Air Force case that was certified to CAAF back in October (discussed here). The certified issue challenges the Air Force CCA’s conclusion that the military judge improperly admitted evidence under Mil. R. Evid. 413. The CCA issued its opinion on June 19, 2015, but the JAG did not certify the case until October 7; seemingly past the 60-day time period set for filing a certification in CAAF’s Rule 22(b)(3). However, the Government repeatedly sought reconsideration by the CCA during that time, ostensibly continuing the CCA’s jurisdiction over the case and extending the beginning of the 60-day time period. CAAF will now review that procedural tactic:

No. 16-0053/AF.U.S. v. Shelby L. Williams.CCA 38454.  On consideration of Appellee’s motion to dismiss the case because the certificate of review was not timely filed, and the government’s opposition thereto, it is ordered that the parties shall present oral argument on the following issue:

WHETHER THE UNITED STATES MAY FILE SUCCESSIVE MOTIONS FOR RECONSIDERATION OF A DECISION OF THE COURT OF CRIMINAL APPEALS, AND THEREBY EFFECTIVELY EXTEND THE 60-DAY FILING DEADLINE FOR A CERTIFICATE OF REVIEW OF SUCH DECISION. SEE CAAF RULES OF PRACTICE AND PROCEDURE 19(b)(3); 22(b)(3); AND 34(a).

The date and time of oral argument will be provided to counsel in a separate order.

CAAF’s narrow reading of the jurisdiction of the CCAs was our #5 Military Justice Story of 2015.

16 Responses to “Three new CAAF grants”

  1. Student101 says:

    Hills is an interesting case because all the charges arose out of a single incident – same time, location, and victim.  It’ll be interesting to see how well the service court’s reliance on some misconstrued readings of Wright (413 not used between contested charges) and Schroder (same) hold up.  If you interested, take a look at Schroder and the summary that CAAF wrote of the trial court’s instruction at 42, then at the actual instruction given at 44. Looks to be a mistake by CAAF to summarize that the MJ instructed on 413 between charged offenses when he actually didn’t. Interested to see how this all pans out…

  2. Phil Cave says:

    I noticed in reading Wright, the court’s reference to legislative history.

    “the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing 
    The practical effect of the new rules is to put evidence of uncharged offenses 

    (Emphasis added.)  Applying rules of construction, does that mean that Congress was not intending to cover charged conduct?

  3. Student101 says:

    Phil – the plain language of MRE 413 is what should be considered first, though in Wright CAAF went straight to the legislative history to determine whether MRE 403 should apply. If CAAF looks to the history again, then it’s very clear that congress never envisioned or intended 413 to be used this way. If they go plain language, then its a more complicated question (though MRE 413’s plain language pretty clearly indicates its a rule of admissibility, not a rule of use).  Most of the language of MRE 413 becomes moot when it gets used between charged offenses, such as the 5 day notice requirement or the language saying the evidence “is admissible” – for a charged offense, isn’t the evidence coming in anyway to prove the charge, and hasn’t the defense already been given notice under RCM 701?

  4. Phil Cave says:

    I agree the argument is potentially backward.  And it’s a good point about the notice issue.  More to show it’s not meant to allow the charged offenses  . . . 
    And I think that would be consistent with the history of 413.  The only people who seemed to favor the rule is the one DOJ dude who argued it within the rules committee, and to Congress, and to the ALI, and Congress.

  5. J.T. Brigance, Esq. says:

    If the government can present evidence through M.R.E. 413 of uncharged offenses — and receive the related instruction on predisposition — it makes little to no sense to prevent the same with charged offenses. The M.R.E. 403 balancing test is generally more favorable to the government as the evidence will be presented regardless and you’ve at least cleared the preferral and referral standards of proof. Note, too, M.R.E. 413 has been held to permit the introduction of evidence of similar crimes where the uncharged offense had already been tried and resulted in an acquittal. United States v. Solomon, 72 M.J. 176 (C.A.A.F. 2013).
    Put together, preventing the instruction for charged offenses within the same court-martial would only encourage the government to pursue allegations asynchronously. The strong preference for joinder in the military may push back but it’s hard to imagine the defense in the first trial arguing that the government must add a charge (and expose the accused to greater risk) or in the second trial that the government cannot reference the subject matter of the first. Investigations involving separate crimes or (especially) separate victims rarely close at the same date so justifying different trials may be straightforward.
    Last, M.R.E. 413 allows the consideration of such evidence by its plain language (subsection (c)) and for this use (subsection (a)).

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

    Doesn’t make sense to me to allow charged offenses to be considered under MRE 413 and then allow the Government to argue, “he’s been charged with b, c, and d, therefore you can consider that as evidence he is guilty of a.”  Totally goes against spillover prohibition, which requires each charge to stand on its own, and you can’t consider the fact he was charged with b, c, and d to find him guilty of a.
     
    MRE 413 forces the government to be strategic about its charging decisions.  If there’s a sexual assault allegation too weak to get a conviction, but similar enough to other charged conduct, then don’t charge the weak one, and use it under MRE 413 to increase the chances of a conviction of the charged assault.

  7. stewie says:

    The problem here is the tension between the concept of spillover which is basically an extension of in my mind not allowing in most cases predisposition evidence and 413/414 which is an exception to that general principle. I think both sides are “right.”  Spillover becomes useless if you allow 413/414 between charged offenses, but the idea that you can use weaker evidence like uncharged misconduct or even misconduct for which you’ve been acquitted but you can’t use actual charged misconduct (which at worst is just as strong in most cases, or certainly many cases) isn’t very logical.
     
    But that’s the problem/tension you have when you have two competing principles and refuse to get rid of one or the other.

  8. Alfonso Decimo says:

    I have been retired now for 21 months and at this point it would take considerable study to return to military justice, due to the rapid pace of changes to the system. I imagine out military justice division at JAG HQ must be busier than ever, despite the rapidly declining number of courts-martial. Since Congress has essentially hijacked the duties of the Joint Service Committee, it now falls upon our military justice experts to resolve all the unintended consequences at the appellate level. My guess is that many elements of the system will be restored to status quo ante in about three to five years.

  9. k fischer says:

    Jake B.,
     
    Good analysis and it makes logical sense if you believe that sexual offenses deserve special rules.  But, if this were a theft case, wouldn’t there be a spillover instruction?  Yes, and the panel wouldn’t hear an equally confusing instruction that says they can consider evidence of other charged misconduct to presume that the accused committed the charged offenses. 
     
    The spillover instruction is supposed to protect the presumption of innocence, which is the fundamental element in the due process of law guaranteed by the 5th Amendment.  While it is not expressly delineated, it is the lynchpin of due process.  It also prevents the panel from being inappropriately persuaded when the TC unfairly loads up a charge sheet with as many charges he can think of no matter how ridiculous or lacking in proof, which happens every once in a while.
     
    However, when we are talking about a person who has been accused of a sex crime, then all bets are off.  In that special class of case, a spillover instruction takes a backseat to the instructions designed to protect the presumption of innocence because Congress passed a law that said so.  Just like an Accused’s 8th amendment right to confront his accuser may be infringed if the accuser is a child accusing him of a sex offense.  So, Congress and our judiciary slowly, but surely, will keep chipping away at the protections put in place by our founders when it involves one class of victims who accuse a citizen of a crime, which de facto makes that accused entitled to less protection. 
     
    Allowing 413 to trump spillover from a large number of charges certainly will help CID and NCIS whose modus operandi is to search out every ex that the Accused has every had a relationship, tell them, “You know your ex?  Well, we think he is a serial rapist,” and groom vindictive exes to falsely accuse an individual for revenge.  And, unless you are the one sitting in the chair as the Accused, it is easy to disregard the unfairness of a system being designed to ensure convictions on the most spurious of allegations where women are permitted to hijack an installation’s JAG office to become their personal injury attorneys. 
     
    Anybody following the Ft. Campbell case of US v. Kit Martin?  Now, I don’t know what any of that stuff means, but it sounds pretty bad…..
     
    AX, congrats on your retirement.  I, too, feel that with all the changes, it is difficult to navigate the waters when it comes to Article 120 cases.  But, so do military judges and SVP’s.  Panels are a little more immune to all this nonsense, and many of these instructions won’t help convince them when a complaining witness is not credible.  And, no matter what the spillover instruction is, if you have two or more vics who don’t know each other saying the same thing, it will be difficult to get an acquittal.  Look at US v. Pease, where the vics got together to accuse Pease of an impairment by alcohol 120 offense.  He got 6 years on some facts that are laughable.

  10. k fischer says:

    ****spillover instruction takes a front seat

  11. k fischer says:

    (Nevermind, I was correct the first time)

  12. Concerned Defender says:

    Tough situation, but I err on the side of the accused and due process.  Hard call, especially in the instant case, but if you allow this slippery slope to continually erode we are marching right down the path of tyranny and free-for-all trials. 
    In my cursory reading of the decision and the brief summary of facts, it seems as though a victim got hammered at a party and legitimately blacked out, and came in and out of consciousness.  During this time she has some memory of the accused, and some memory of being moved between rooms, and some memory of nonconsensual sex.  IIRC the vaginal penetration, and some DNA linking the accused profile.  
    Seems as though the prosecution had a good case for their case.  Why muddy the waters with the 413 issues?  This seems to be a maturity issue on charging decisions, such as throwing in a 3 day AWOL onto a murder charge, or a disrespect onto a charge sheet with 10 drug uses and possession.  Why?   What’s the theme?  Why, in this case, risk the appellate issues on an otherwise fairly cut-and-dried stranger rape case?  Could have worked out where the court overturned it on appeal and let the accused walk…
    Going back to the legal issues, in this particular case I don’t have heartburn over it since there was no evidence of anyone else in the room or assaulting her.  Would be like charging a person for theft if he was the only one in the arms room or with access to it, and some of the equipment was found in his possession later, you could assume that the other stuff was also stolen by him. 
    But as a precedent, it is dangerous especially in these sex assault cases.  We are all clear on where these cases are heading, as many of them (not the underlying case IMO) march down the path of witch trials.  I’ve seen and defended a number of them myself. 
     

  13. stewie says:

    kf, again though, what you are effectively arguing is that:
     
    413 for weaker evidence not on the charge sheet is ok (well it doesn’t matter if you are arguing that or not, because it’s the law)
    413 for (usually) stronger evidence that is on the charge sheet is not ok
     
    I’m not suggesting that the second one is unproblematic, it certain damages the presumption of innocence (or more accurately it damages the presumption that we don’t argue that one is predisposed to being a criminal thus they committed a crime which is what spillover actually protects against.
     
    Except 413 is an exemption, right or wrong, to that presumption. So it would seem to me, the problem is that we try to have it both ways, and we need to pick one…spillover or 413…having both just leads to confusion precisely because they work in direct opposition to each other.

  14. Vulture says:

    It seems like this discussion is one sided because there is no way to say anymore that someone can have evidence that they are not at a predisposition so they did not commit the crime.

  15. k fischer says:

    Stewie,
     
    I’m glad we got that straight.  Just like Maverick, choose either Charlie or Iceman.  You can’t have it both ways, either spillover or 413.  And thus we carve out another exception for sex crimes if we choose to crapcan the spillover instruction when there is charged 413 propensity evidence.

  16. Passing By says:

    It was no choice.  Neither could replace Goose.