In the wake of its blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF this week summarily remanded three other cases in which it granted review of issues involving the use of propensity evidence in sex cases:

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On further consideration of the granted issue, 75 M.J. 236 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. May 6, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. June 22, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

The grant in Moynihan was noted here. The grant in Tafoya was noted here. The grant in Williams was noted here.

Still remaining on CAAF’s docket is the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (certification noted here) (CCA’s decision discussed here).  Fetrow involves propensity evidence used in a child sex case (Mil. R. Evid. 414) that the CCA found was not eligible for use under the rule.

6 Responses to “CAAF summarily remands propensity cases”

  1. k fischer says:

    Look at all those Army SVP’s who used charged offenses as propensity evidence!  I bet at the time they felt quite highly of themselves convincing the MJ to read the propensity instruction.  The HQE’s at TCAP probably shot out a memo instructing all of them to make the same arguments.  I’d like to know which MJ’s politely listened to such a request by an SVP and denied it.

  2. Chuck Bass says:

    Or maybe the MJs gave the propensity instruction for charged conduct because it was IN THE BENCHBOOK.  (See 7-13-1, Note 4 or 4.2 depending on which version you are looking at.)

  3. K fischer says:

    Chuck,
     
    I reread the instruction looking for the part where it says  “when trial counsel charges one continuing sexual encounter three different ways concerning one victim, then read this instruction.”  I didn’t see that part.   

  4. Chuck Bass says:

    Come on, dude.  You know that was not the implication of your original post.   Nor do you have any idea whether Moynihan, Tafoya, and Williams are cases with one victim on one night or with multiple victims.

  5. k fischer says:

    The implication in my original post is based on my experience in 802 sessions where the MJ discusses with Trial and Defense Counsel which instructions should be read.  I am assuming that when the propensity instruction was suggested in facts similar to Hills, the defense counsel objected and the trial counsel made an argument why the instruction should be read. Perhaps your experience differs from mine, dude.
     
    I implied that TCAP and SVP’s were pushing the tactic of getting a propensity instruction.  This seems to be corroborated by another poster from this CAAFlog post:

     
    JameSONsays:
    June 29, 2016 at 12:47 AM

    In the Army, this tactic was pushed via TCAP and the SVPs.  TC’s were just following along and SJAs are not in the weeds that much.  I’ve heard that TCAP thinks this case was wrongly decided.

     
    I implied that there were probably some MJ’s who did not read the instruction because they thought it was ridiculous to read the instruction in cases similar to the facts in US v. Hills.
     
    But, you are correct.  I am assuming that Moynihan, Tafoya, and Williams are cases involving one victim and one continuing sexual conduct since CAAF summarily set aside all three of those ACCA decisions.
     
    Anyone have a TCAP memo advising SVP’s to charge one continuous sexual assault in multiple ways, so they could get the instruction read.  For instance, charge kissing, touching of the breast, licking the vagina, and intercourse as different offenses, then request that the MJ read the instruction for charged misconduct.

  6. k fischer says:

    US v. Gene Williams involved sexual assault charges by two ex-wives.  I can’t find Tafoya and Moynihan to read the facts of those cases.
     
    After reading Hills again, I think CAAF could overturn Williams, as well.  What say you, Chuck Bass?