In this post I analyzed the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016). The CCA dissected CAAF’s opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 (and, presumably, 414):

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. . . .

75 M.J. at 897-898 (emphasis in original).

On March 3 CAAF granted review:

No. 17-0183/AR. U.S. v. Alan S. Guardado. CCA 20140014. 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 issues:

I. WHETHER THE ARMY COURT INCORRECTLY FOUND THAT THE MILITARY JUDGE’S PANEL INSTRUCTIONS WERE HARMLESS ERROR IN LIGHT OF UNITED STATES v. HILLS.

II. WHETHER THE ARMY COURT INCORRECTLY RULED THAT AN OFFENSE DEFINED BY THE PRESIDENT CANNOT PREEMPT A GENERAL ARTICLE 134, UCMJ, OFFENSE, AND THAT PREEMPTION IS NOT JURISDICTIONAL IN SUCH CIRCUMSTANCES.

Briefs will be filed under Rule 25 on Issue I only.

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