CAAF will hear oral argument in the Army case of United States v. Hukill, No. 17-0003/AR (CAAFlog case page), on Tuesday, February 28, 2017, at 9:30 a.m. The court will review the decision of the Army CCA issued in the wake of CAAF’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – our #3 Military Justice Story of 2016 – that functionally held that Hills does not apply in a judge-alone trial because there is no risk that a military judge would apply an impermissibly low standard of proof.

Specialist (E-4) Hukill was convicted contrary to his pleas of not guilty, by a general court-martial composed of a military judge alone, of rape and abusive sexual contact. Hukill was sentenced to confinement for seven years, reduction to E-1, total forfeitures, and a dishonorable discharge. The two offenses involved separate alleged victims, and the prosecution was allowed to use evidence of each alleged offense as evidence of Hukill’s propensity to commit the other alleged offense. At the time of Hukill’s trial such use was believed to be consistent with Mil. R. Evid. 413. Last June, however, in Hills, a unanimous CAAF concluded that charged offenses may not be used under Mil. R. Evid. 413 to prove an accused’s propensity to commit other charged offenses. But the Army CCA found that because Hukill was tried by a military judge alone, the improper use of the charged offenses for propensity purposes was harmless:

We are satisfied that his view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt. We find no risk that the military judge would apply an impermissibly low standard of proof concerning both the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt. Simply put, we find nothing in the record to suggest that the military judge did not hold the government to its burden of proving appellant’s guilt beyond a reasonable doubt, or that the military judge applied a lesser standard in adjudicating the charges against the appellant.

United States v. Hukill, No. 20140939, slip op. at 3 (A. Ct. Crim. App. Aug. 16, 2016) (op. on recon.) (link to slip op.). CAAF then granted review of two issues:

I. Whether, in a court-martial tried by military judge alone, 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.

II. Whether Judge Paulette V. Burton and Judge Larss G. Celtnieks, judges on the court of military commission review were statutorily authorized to sit on the Army Court of Criminal Appeals, and even if they were statutorily authorized to be assigned to the Army Court of Criminal Appeals, whether their service on both courts violated the Appointments Clause given their newly attained status as a superior officer.

The phrasing of the first issue is odd, considering that in Hills CAAF unambiguously held “that admitting charged conduct as M.R.E. 413 evidence was an abuse of discretion.” 75 M.J. at 353. This is because “neither the text of M.R.E. 413 nor the legislative history of its federal counterpart suggests that the rule was intended to permit the government to show propensity by relying on the very acts the government needs to prove beyond a reasonable doubt in the same case.” 75 M.J. at 350. Hills stated a clear principle of law that is contrary to the ruling of the military judge in Hukill. Because there is no discretion to misapply the law, the military judge’s erroneous admission of charged offenses for propensity purposes was an abuse of discretion. The real issue is whether that error was harmless.

Yet in its brief in Hukill the Army Appellate Government Division re-litigates Hills despite the fact that the Government did not seek certiorari of CAAF’s decision.

The Division’s brief asserts that:

There is nothing in the plain language of the rule that bars the application of M.R.E. 413 to evidence of “any other sexual offense” simply because it is charged. To the extent that Hills suggests otherwise, this Court should limit and clarify that proposition.

Gov’t Div. Br. at 11. This is a surprising argument considering that Judge Ryan’s opinion for the unanimous CAAF in Hills included the blunt conclusion that “neither the structure of M.R.E. 413 and its relationship to M.R.E. 404(b) nor the legislative history of the federal rule upon which it is based suggests that M.R.E. 413 and its attendant instructions may be applied to evidence of charged misconduct.” 75 M.J. at 355. Judge Ryan – and probably all of CAAF – will likely press the Division’s counsel to explain how such explicit language can be fairly characterized as merely a suggestion.

Eventually, however, the Division’s brief turns to the question of prejudice:

There is no evidence from the record to rebut the presumption that the military judge properly understood the presumption of innocence in appellant’s case and held the government to its burden of proof beyond a reasonable doubt.

Gov’t Div. Br. at 20. This reads like an afterthought.

Hukill responds:

The government’s conclusory statements, devoid of analysis, are insufficient to meet its burden to prove the military judge’s error was harmless beyond a reasonable doubt. Hills, 75 M.J. at 357 (noting that an error is not harmless beyond a reasonable doubt “when there is a reasonable probability the error might have contributed to the verdict”) (internal quotations and citations omitted). Here, the government has failed to prove that the erroneous admission of propensity evidence did not contribute to the findings of guilty.

Reply. Br. at 5.

Case Links:
ACCA opinion
• ACCA opinion on reconsideration
Appellant’s brief
Appellee’s (Army Appellate Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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