CAAF decided the Army case of United States v. Hukill, 76 M.J. 219, No. 17-0003/AR (CAAFlog case page) (link to slip op.), on Tuesday, May 2, 2017. A short opinion reiterates the rationale of 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 – by articulating that “the use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected.” Slip op. at 6. CAAF reverses the decision of the Army CCA that found Hills inapplicable in judge-alone trials, reverses the appellant’s convictions, and authorizes a rehearing.

Chief Judge Erdmann writes for a unanimous court.

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. He 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 used evidence of each alleged offense as proof of Hukill’s propensity to commit the other alleged offense. This use included the trial counsel asserting during the prosecution opening statement that:

[W]ithin a month, there are two allegations of sexual assault by two unrelated victims . . . two allegations of sexual assault; two distinct reports but with strikingly similar details; details that reveal a similar scheme, a similar method of attack.

Slip op. at 4 (marks in original). Additionally, during the prosecution closing argument the trial counsel said:

Your Honor, the accused has committed two incidents of sexual assault, two very similar incidents.  hey are strong in their own right, but they’re even stronger together when you consider M.R.E. 413.

Slip op. at 4. At the time of Hukill’s trial such use and argument was believed to be consistent with Mil. R. Evid. 413. Last June, however, in Hills, a unanimous CAAF held otherwise, concluding 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, and so it affirmed the convictions.

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 Chief Judge’s opinion is clear:

In analyzing the use of charged conduct as propensity evidence under M.R.E. 413, we held in Hills that “[c]harged misconduct is already admissible at trial under M.R.E. 401 and 402, and it is not subject to exclusion under M.R.E. 404(b). Thus, as a matter of logic, it does not fall under M.R.E. 413, which serves as an exception to M.R.E. 404(b).” Hills, 75 M.J. at 355. We also reasoned that the structure of the rule, including the notice provision under M.R.E. 413(b), “logically implies that only evidence of uncharged offenses (of which the accused would not otherwise be aware absent disclosure) are contemplated by the rule.” Id. Finally, we noted that the legislative history of M.R.E. 413’s federal counterpart, Fed. R. Evid. 413, suggests that the rule was not designed to apply to charged conduct. Id. None of these grounds are dependent on whether the trial was a members’ trial or military judge-alone.

We therefore clarify that under Hills, the use of evidence of charged conduct as M.R.E. 413 propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected. Whether considered by members or a military judge, evidence of a charged and contested offense, of which an accused is presumed innocent, cannot be used as propensity evidence in support of a companion charged offense.

Slip op. at 5-6.

The Chief Judge also observes that “the government appears to argue that Hills was wrongly decided.” Slip op. at 5. This is an awfully charitable reading of the brief of the Army Appellate Government Division that asserted 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.” Gov’t Div. Br. at 11. The brief also decried “the potential dissonance in Hills,” and it called upon CAAF to “limit and clarify” its holding in that case. Id.

Any dissonance, however, is now resolved: Charged offenses may not be used for propensity purposes; no limits, no exceptions.

Having found that the use of charged offenses for propensity purposes in this judge-alone trial was error, CAAF turns to prejudice. While the Chief Judge does not fault the military judge for applying what was then believed to be a correct interpretation of the law, the lack of blame does not equate to an absence of harm:

The military judge cannot be faulted for applying the accepted law at the time, however, after Hills, that interpretation of the law was no longer correct. The presumption that the military judge knows and follows the law is only as valid as the law itself. The Army Court of Criminal Appeals’ conclusion and the government’s argument before this court that the error was harmless due to this presumption is not a prejudice argument. The presumption is that military judges will correctly follow the law, which would normally result in no legal error, not that an acknowledged error is harmless. The presumption cannot somehow rectify the error or render it harmless.

Assessing the prejudice of this error, we recognize that the military judge, when conducting his M.R.E. 403 analysis, found that the “probative weight of the evidence is high, demonstrating the accused’s propensity to sexually assault two females that he knew prior to the alleged sexual assaults.” Additionally, the government’s case was based entirely on the testimony of the victims and the alleged confession from Hukill to his fiancée that he had been unfaithful, all of which Hukill denied. No other evidence was offered. On this record, we find that the Government failed to prove there was no reasonable possibility that the error contributed to the verdict. See Moran, 65 M.J. at 187. We therefore reverse the decision of the lower court.

Slip op. at 7.

CAAF authorizes a rehearing.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

11 Responses to “Opinion Analysis: CAAF explains that it really meant it – charged offenses may never be used for propensity purposes – in United States v. Hukill, No. 17-0003/AR”

  1. Prince says:

    will Caaf consider a retrospective Hills review?  

  2. Charlie Murphy says:


  3. Philip D Cave says:

    If the case if final through CAAF, no.
    If the case is one of the trailers, or still in the post-trial process, then consider Griffith v. Kentucky, 479 U.S 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987) (holding “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases . . . pending on review”); see also Whorton v. Bockting, 127 S. Ct. 1173, 1181, 167 L. Ed. 2d 1 (2007) (declaring Crawford to be a new rule of law). See, United States v. Cabrera-Fratini, 65 M.J. 241 (C.A.A.F. 2007), United States v. Foerster, 65 M.J. 120, 122 n.3 (C.A.A.F. 2007).

  4. Prince says:

    thank you Mr. Cave you are a great attorney.

  5. The Revolution says:

    As are you, Prince.

  6. Mack says:

    I understand the equities involved in this decision (I think) and have tried to dig through prior discussions on this and I still wonder what’s CAAF’s “right” answer for the relatively common occurrence of an accused who has multiple victims with similar circumstances? Try each one individually and try to get in the uncharged misconduct as 413 evidence and end up with five verdicts and maybe five appeals? Could the Government prefer those cases concurrently and just spend a month trying the accused, one victim at a time? Or is it just that the Government can still present the evidence, but nobody is allowed to connect the dots for the factfinder? Or that connecting the dots is okay, with the magic words used (“these similar accusations do not establish a propensity for assault, they show an intentional plan on the part of the accused.”)  I know this is a defense haven, so I don’t expect help here, but you don’t know until you’ve asked, right?

  7. Zachary D Spilman says:

    I recommend military prosecutors focus on winning convictions based on proof that the accused actually committed the offense rather than based on some bad trait of the accused’s character. 

    It’s a radical idea, perhaps, but a simple one.

  8. MIchael Korte says:

    We’ve come a long way from the old “Does he have a mustache?” test for establishing guilt.

  9. stewie says:

    Mack, do you seriously not think that the mere fact of having multiple alleged victims in the courtroom isn’t a serious factor against the accused in the minds of the panel…regardless of the instructions given by the MJ?
    Are you arguing that shear number of alleged victims should somehow compensate for a lack of evidence on any one offense?
    Members of the panel, I know each case standing on its own doesn’t have enough evidence to support a conviction, but if you just count the number of allegations, that should be enough to get you over the top.

  10. Charlie Gittins says:

    I had a guy accused of two rapes at Barksdale AFB a few years (maybe 10) ago.  Both offenses were charged and the GOV’s principle argument was that “lightning doesn’t strike twice.”  I spent a lot of time in motions shutting that crap down and was completely successful.  Neither accusation would ever have gone to trial alone, but the GOV believed with 2 prxs (one of whom came forward only after she heard about the first accusation), the GOV hoped to sell it to the members and get at least one conviction.  The members weren’t buying and acquitted on both rapes.  Found him guilty of an unrelated orders violation that had been tacked on “because they can.”  The guy was the spitting image of Ricky Martin and he just “had that effect” on women.  One of the rapes occurred with the woman on top, BTW.  The other was similarly absurd.  The women just didn’t like getting one-night standed.

  11. Annonymous says:

    its unbelievable the far over reaching hands of these prosecutors. In a multiple victim case the reasonable person will always assume that where there is smoke there might be fire. Evidence is already permissible under rule 412. I do not see why the government has always got away with this unconstitutional practice of using 413 in charged offenses. This whole war on sexual assault has gone too far. Cases look like a Jerry springer drama. No wonder many civilian district attorneys decline to prosecute these unbelievable accusations. What country imprisons its own heroes. Th this whole UCMJ needs a complete overhaul.