CAAF will hear oral argument in the Army case of United States v. Hills, No. 15-0767/AR (CAAFlog case page), on Tuesday, May 10, 2016 (after the argument in Evans). The case challenges the use of the charged offenses as propensity evidence under Military Rule of Evidence 413 – our #6 Military Justice Story of 2015 – with the following granted 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.

Sergeant Hills was convicted by a general court-martial composed of members with enlisted representation, contrary to his pleas of not guilty, of one specification of abusive sexual contact in violation of Article 120. The conviction arose from an alleged sexual encounter with a heavily intoxicated female soldier. Hills was acquitted to two additional specifications of abusive sexual contact arising out of the same encounter with the same alleged victim. The members sentenced him to confinement for six months, reduction to E-1, and a bad-conduct discharge.

At trial, and over the objection of the defense, the military judge granted a Government motion to permit the use of the three charged violations of Article 120 as evidence to prove Hills’ propensity to commit those same offenses. While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998).

For years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged offenses. But our #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413, as three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses. United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015); United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here); United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (unpub. op) (discussed here), pet. for rev. filed, __ M.J. __, No. 16-0155/AF (C.A.A.F. Nov. 25, 2015). The Army CCA justified this action in Barnes with the explanation that:

We find 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.

74 M.J. 697-698.

Now, with Hills (and another Army case that also challenges the use of charged offenses in child sex cases under Mil. R. Evid. 414, but involves a specified issue: United States v. Moynihan, No. 16-0277/AR (discussed here)), CAAF is considering whether charged offenses may be used in this manner.

Hills’ brief asserts that the use of the charged offenses for propensity purposes eroded his constitutional presumption of innocence because the panel was instructed that it could use the allegations in this way if it found that they were proven only by a preponderance of the evidence. The brief asserts that:

Allowing a panel to consider an accused’s propensity to commit sexual assault, generated strictly from charged conduct for which he is cloaked in the presumption of innocence and before the government has proven guilt beyond a reasonable doubt, erodes the “bedrock axiomatic and elementary principle” to a preponderance of the evidence standard. See Winship, 397 U.S. at 363.

App. Br. at 8. This reasoning, however, would seem to apply equally to uncharged offenses for which an individual also enjoys a presumption of innocence. Proof beyond a reasonable doubt is “indispensable to command the respect and confidence of the community in applications of the criminal law . . . [ensuring] that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.” In re Winship, 397 U.S. 358, 364 (1970). However, even uncharged acts must be proven (though only by a preponderance, as the proof it’s for an adjudication of guilt) before they may be used as proof of propensity.

Yet Hills’ brief also makes an interesting observation:

Military Rule of Evidence 413 is a rule of admission, not use. Evidence concerning charged conduct does not require Mil. R. Evid. 413 for admissibility. . . . When used with charged conduct, Mil. R. Evid. 413 is no longer an exception to 404(b) (which allows otherwise inadmissible evidence to be admitted as contemplated by the plain language of the rule) but instead becomes an exception to the prohibition on spillover.

App. Br. at 11-12. This argument works well with an alternative argument advanced by Hills and unique to the facts of this case where all three allegations arose out of the same course of conduct: that “one course of conduct cannot generate a propensity to engage in that very course of conduct.” App. Br. at 14. Hills also attacks the military judge’s ruling permitting the propensity evidence on the basis of its probative weight as compared to other factors (applying Mil. R. Evid. 403).

But the Government asserts that the evidence wasn’t really used at trial:

[T]he propensity evidence was not the lynchpin of the government’s case. The government did not argue that appellant had a propensity to commit sexual assault in either its opening statement or closing argument. It was not the theme of its case. Finally, the evidence of the charged misconduct was going to be presented with or without the Mil. R. Evid. 413 instruction. Even if it was error to be admitted for propensity purposes, it was relevant “as intrinsic evidence of appellant’s pattern of lustful intent during his commission of the three sexual assaults against SPC PV.

Gov’t Br. at 34-35. The Government’s brief also argues from a position of strength as CAAF has clearly affirmed the constitutionality of Mil. R. Evid 413 (and 414) and it makes little practical sense to permit the use of uncharged acts (that could be prosecuted in a subsequent court-martial) but prohibit the use of those same acts if joined with other offenses.

Ultimately, however, Hills doesn’t push so hard as to necessarily require that CAAF find that charged offenses may never be used for propensity purposes under Mil. R. Evid. 413, instead offering the alternative that merely their use in his case was improper. However, considering that propensity was not a significant theme of the Government’s case, CAAF may not grant relief with such a narrow approach.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

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