In a published decision in United States v. Guardado, 75 M.J. 889, No. 20140014 (A. Ct. Crim. App. Nov. 15, 2016) (link to slip op.), a three-judge panel of the Army CCA dissects CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).
Reading Hills broadly to state “that propensity evidence may never be used between charged offenses, regardless of how separate and distinct the offenses [are] in time and place,” slip op. at 12 (emphasis added), the CCA nevertheless finds that the use of charged sexual offenses as evidence of the appellant’s propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors.
Judge Wolfe writes for the panel. Senior Judge Mulligan concurs but authors a brief separate opinion that dissents from Judge Wolfe’s broad reading of Hills, concluding instead that “Hills should not be read sweepingly to preclude evidence of other offenses, charged or uncharged, on different victims, at different times and locations.” Slip op. at 30.
In Hills a unanimous CAAF held that charged offenses may not be used under Mil. R. Evid. 413 to demonstrate an accused’s propensity to commit other charged offenses, and also that the standard instruction given to members regarding how to handle such propensity evidence is constitutionally erroneous because it undermines the presumption of innocence. Hills was a blockbuster decision and its reverberations continue to be felt across the services as using charged offenses as evidence of an accused sexual propensity to commit other charged offenses was a favorite tactic of many military prosecutors.
The CCAs have applied Hills in a somewhat inconsistent manner (reviewed here). For instance, the Army CCA found that Hills does not apply in judge alone trials; a conclusion that CAAF will review. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), rev. granted, 75 M.J. 491 (C.A.A.F. Nov. 23, 2016) (discussed here). The Air Force CCA reached a similar conclusion to that reached by the Army CCA in Hukill. United States v. Phillips, No. 38771 (A.F. Ct. Crim. App. Sep. 7, 2016) (discussed here). The Army CCA also affirmed convictions by members despite the prosecution’s use of the charged offenses for propensity purposes, finding the error harmless under the facts of the case. United States v. Bonilla, No. 20131084 (A. Ct. Crim. App. Sep 30, 2016) (discussed here). The Navy-Marine Corps CCA, however, applied Hills to reverse the appellant’s convictions of sexual assault upon two different women whose allegations were separated in time by nine months (but shared numerous similarities). United States v. Ellis, No. 201500163 (N.M. Ct. Crim. App. Aug. 30, 2016) (discussed here).
The appellant in Guardado was a Master Sergeant (E-8) in the Army charged with numerous offenses involving sexual misconduct with children, and the CCA notes that “the government’s charging strategy was aggressive.” Slip op. at 2. The charged offenses alleged that the appellant assaulted his daughter, that he committed offenses against his niece, and that he committed offenses against children whom he coached in soccer. Contrary to his pleas of not guilty a general court-martial composed of members with enlisted representation convicted him of offenses related to each allegation, including aggravated sexual contact with a child, indecent liberties with a child, battery of a child under the age of sixteen, committing a general disorder, indecent assault, indecent acts, and using indecent language with a child, in violation of Articles 120, 128, and 134. He was sentenced to confinement for eight years, total forfeitures, and reduction to the grade of E-1. The panel did not adjudge a punitive discharge.
The military judge in Guardado allowed the prosecution to use evidence of the charged offenses to prove other charged offenses in two ways.
“First, the military judge instructed the panel members that they could use evidence from certain charged offenses to show the accused’s modus operandi, intent, and lack of mistake as to other charged offenses,” under Mil. R. Evid. 404(b). Slip op. at 5. The CCA finds that Hills does not apply to this type of evidence, and it seems that the appellant didn’t challenge its admission on other grounds.
Second, “the military judge instructed the panel that they could consider appellant’s ‘propensity or predisposition to engage in sexual assault’ with respect to four specifications.” Slip op. at 10. The opinion focuses on this instruction.
Judge Wolfe’s analysis begins with an important interpretive question: How Broad is CAAF’s Decision in Hills?
At times, the CAAF’s reasoning in Hills can be read narrowly to cover limited circumstances presented in Hills where propensity evidence was allowed when all specifications address a single course of conduct. Thus, for example, the court appears to limit its reasoning to the facts of Hills when it says “this Court … has [never] permitted the use of Mil. R. Evid. 413 or Fed. R. Evid. 413 as a mechanism for admitting evidence of charged conduct to which an accused has pleaded not guilty in order to show a propensity to commit the very same charged conduct. Hills, 75 M.J. at 354 (emphasis added). Such a reading is consistent with the CAAF decisions in Schroder and Burton, which the CAAF did not specifically reverse or determine were wrongly decided. A narrow reading is also consistent with the case law from federal circuit courts. Our concurring colleague reads Hills narrowly.
However, and undoubtedly, Hills can also be read broadly. The court’s language was, at times, sweeping in scope, unequivocal, and would appear to apply to cases well beyond the facts of Hills. The CAAF could have easily resolved Hills by stating that propensity has no probative value when the offenses are part of the same course of conduct, thereby resolving the M.R.E. 403 balancing test in favor of the appellant. They did not, and went much further. As noted above, given the small avalanche of cases in the appellate pipeline, whether the narrow or broad reading is correct will have significant effects on cases that appellate courts are likely to address over the next several years.
Slip op. at 11.
Judge Wolfe concludes that Hills should be read broadly:
[W]e read Hills to prohibit, under all circumstances, giving a propensity instruction based on a charged offense.
Slip op. at 12. Accordingly it was error to instruct the panel that they could consider the charged offenses as evidence of the appellant’s propensity or predisposition to engage in sexual assault.
However, it is not enough that there was error in the trial because “[a]ny trial error can be said to impair substantial rights if the harm is defined as being convicted at a trial tainted with fill-in-the-blank error.” Puckett v. United States, 556 U.S. 129, 142 (2009). In other words, the error is not the prejudice; there must be both some wrong and some harm caused by the wrong. Otherwise there is chaos, because if any mistake at trial can overturn a conviction then there would be no convictions.
In Hills the trial defense counsel objected to the prosecution’s use of the charged offenses for propensity purposes thereby preserving the error. When an error is preserved by timely objection the party that benefited from that error must show that the error was harmless in order to sustain the result. Because CAAF also concluded that the error in Hills affected constitutional rights, the Government had the heightened burden to show that the error was harmless beyond a reasonable doubt. Based on the relative weakness of the prosecution’s case in Hills, the Government couldn’t meet this burden.
But in Guardado there was no objection and the CCA reviews for plain error. Slip op. at 12 n.10. Under the plain error test the appellant has the burden to prove that (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right. Judge Wolfe identifies five reasons why the appellant in Guardado fails to meet this burden:
First, we note the CAAF has previously found instructions that included propensity stemming from charged offenses to be harmless error. Schroder, 65 M.J. at 56-57. As discussed above, while the CAAF found the instruction to be error, the court found it harmless.
Second, we believe the intertwined nature of the conduct in Hills was central to the court’s assessment of prejudice. . . .
Third, when we look at a specification-by-specification analysis, we are unable to find prejudice to appellant when he was convicted of only one offense. . . . when the panel acquitted appellant of the three other specifications of sexual assault, any violation of the presumption of innocence as to those specifications resulted in no prejudice. . . .
Fourth, we are convinced beyond a reasonable doubt that even if no propensity instruction had been given, the results in this trial would have been the same. . . .
Finally, but least importantly, we find, to the extent that the military judge’s instructions were confusing, any confusion in this case was harmless. . . .
Slip op. at 13-15 (emphasis in original).
Of these, I think the fifth conclusion is the most problematic. Judge Wolfe notes that the military judge instructed the members that they could use the charged offenses as evidence of the appellant’s propensity or predisposition to engage in sexual assault but also instructed the members that “proof of one sexual assault creates no inference that the accused is guilty of any other sexual assault.” Slip op. at 15 (quoting record). From these contradictory instructions Judge Wolfe concludes that:
One may reasonably wonder the point of the [propensity] instruction. The military judge prohibited any “inference” that the accused committed one sexual assault because he committed other sexual assaults. In other words, the panel was instructed they were not allowed to give propensity any legal weight. The net effect of the instruction was to follow Mil. R. Evid. 413 (as understood by the judge at the time), but then instruct the panel in a manner that gave it no weight.
Slip op. at 16. I think this conclusion dodges two significant points. First, the no inference language is in the model instructions and was given in Hills, and CAAF nevertheless found constitutional error. Second – and more importantly – Judge Wolfe’s conclusion implies that the members followed the no inference instruction while ignoring the propensity or predisposition instruction, when the opposite is just as likely. As Judge Ryan explained in CAAF’s opinion in Hills, the instructions “provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to discard the accused’s presumption of innocence, and with two different burdens of proof — preponderance of the evidence and beyond a reasonable doubt.” Hills, 75 M.J. at 357, slip op. at 11.
Put differently, there is simply no way to know if the members used the charged offenses for propensity purposes or if they didn’t. While the plain error standard puts the burden of showing prejudice on Guardado, this instruction seems problematic no matter who has the burden.
Beyond this, however, I don’t see the CCA’s decision in Guardado as marking a significant change in the post-Hills landscape, particularly considering the CCA’s specific decision to apply Hills broadly.
There are two other interesting factors about the decision in Guardado, neither of which involve Hills.
The first is that the appellant was convicted of five specifications of engaging in sexually explicit communications with girls on his soccer team. One of these specifications was charged as the enumerated offense of indecent language, while the other four were charged as mere general disorders. On appeal Guardado asserted that the court-martial lacked jurisdiction because of the preemption doctrine, which is a prudential rule that states that Article 134 cannot be used to prohibit conduct already prohibited by Congress in the other punitive Articles. MCM, pt. IV, ¶ 60.c.(5). See also United States v. Wright, 5 M.J. 106, 110 (C.M.A. 1978). The Government conceded that this is a jurisdictional issue that can’t be waived, but the CCA disagrees:
[A]ppellant’s argument regarding subject matter jurisdiction is circular. Appellant’s argument is that the Article 134 offense of indecent language preempts the Article 134 general disorders of which he was convicted. That is, appellant’s argument is that one Article 134 offense preempts another Article 134 offense. It simply cannot follow that an Article 134 offense lacks subject matter jurisdiction over a general disorder offense because the Article 134 offense has subject matter jurisdiction over the offense of indecent language.
Thus, we find the preemption doctrine, at least when applied outside of the ACA, is not a question of subject matter jurisdiction.
Slip op. at 19. Then – and entirely unsurprisingly I think – the CCA finds that the preemption doctrine does not apply:
Applying the McGuiness test to this case, it is clear appellant’s argument falls short. Congress did not intend to occupy the field with the offense of indecent language. Congress has not spoken on the matter one way or the other. Rather it is the President who has defined the offense of indecent language. We cannot equate the President’s enumeration of indecent language as being the same as an enactment by Congress for several reasons.
First, when the President lists elements of an offense under Article 134 the President does not create a substantive criminal offense, but simply provides “guidance to judge advocates under his command regarding potential violations of the article” by “merely indicating various circumstances in which the elements of Article 134, UCMJ could be met.” Jones, 68 M.J. at 471-72; Fosler, 70 M.J. at 231 (“[T]he President does not have the authority to decide questions of substantive criminal law.”). Accordingly, as the President cannot create a new offense, the enumeration of an offense under Article 134 cannot preempt another Article 134 offense under McGuiness.
Slip op. at 22.
The second other interesting issue in Guardado is that the defense witnesses refused to be interviewed by the prosecution and so “the military judge ruled that the defense witnesses would not be allowed to testify unless they first agreed to be interviewed by the trial counsel.” Slip op. at 23. The CCA finds this to be error:
When it would facilitate a smooth and efficient trial, a military judge may certainly encourage a witnesses to be interviewed voluntarily. Such encouragement coming from a robed judicial officer may often be effective. A military judge, as a matter of discretion, may also recess the court to facilitate such cooperation. See UCMJ, art. 40, 10 U.S.C. § 840 (2012). However, the military judge may not exclude admissible relevant evidence because a witness has chosen not to return the trial counsel’s phone calls.
Slip op. at 25. However, the error was harmless because the witnesses were called (and, notably, the defense did not object).