The unpublished opinion on reconsideration of a three-judge panel of the Army CCA in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (link to slip op.), involves charged offenses used to prove propensity to commit other charged offenses in a trial before a military judge alone.

CAAF explained that charged offenses may not be used this way in the Army case 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). The Army CCA had endorsed the practice a year earlier and CAAF had denied review. United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015). The Army CCA’s decision in Hills was based on that earlier decision in Barnes, and CAAF’s reversal of Hills was a belated reversal of Barnes. The Army CCA then found Hills to be inapplicable to judge-alone trials, but CAAF reversed that opinion too. United States v. Hukill, No. 20140939 (A. Ct. Crim. App. Aug. 16, 2016) (discussed here), reversed, 76 M.J. 219 (C.A.A.F. May. 2, 2017) (CAAFlog case page).

Staff Sergeant (E-6) Sanchez, however, was tried by a court-martial composed of a military judge alone way back in 2014, before the Army CCA decided Barnes and at a time when the appropriateness of using charged offenses for propensity purposes was unsettled. Or, perhaps, not so unsettled.

Sanchez was a drill sergeant accused of sexual misconduct with numerous female trainees. The prosecution offered charged and uncharged acts for both propensity (under Mil. R. Evid. 413) and non-propensity (under Mil. R. Evid. 404(b)) purposes, and the defense did not object. Then:

During the government’s opening statement, the trial counsel requested the military judge “[c]onsider the 413 instruction and the penetrative acts . . . .” The defense did not object. Trial counsel used a demonstrative aid that visually listed and depicted pictures of four of the victims. The heading on the chart read “[p]reponderance of the evidence.” Next to the four names was an equal sign and the word “guilty”—equating the addition of these four victims as amounting to guilt.

Slip op. at 3. A three-judge panel of the CCA issued an opinion affirming the findings and sentence on March 28, 2017 (link to slip op.), distinguishing the case from Hills in part because Sanchez was a judge-alone trial. The decision was written by Senior Judge Campanella. But then CAAF decided Hukill, eliminating any distinction on the basis of a case being judge-alone, and the CCA granted reconsideration.

Now, in the opinion on reconsideration, Senior Judge Campanella again writes for the panel and again distinguishes the case from Hills on the basis that:

the legal presumptions applicable to panel members and military judges are different, which distinguishes this case from the one before our superior court in Hills. “Court members ‘are presumed to follow the military judge’s instructions.’” In contrast, “[m]ilitary judges are presumed to know the law and to follow it absent clear evidence to the contrary.”

Slip op at 4 (citations omitted). Furthermore:

In this case, the military judge did not state affirmatively that he would consider evidence of charged offenses to prove other charged offenses. There is nothing in the record in this case that suggests the military judge was unaware of the applicable standard of proof or unwilling to hold the government to its burden. Although appellant cites to various misstatements by the trial counsel, we cannot presume the military judge adopted counsel’s view of the law. What is missing is evidence of error on the part of the military judge, to whom the presumption attaches. Therefore, given the absence of clear evidence to the contrary, we presume the military judge held the government to its full burden of proof beyond a reasonable doubt for each and every offense.

Slip op. at 6 (emphases in original). Additionally, considering the failure of the defense to object, the CCA finds that this failure waived any error:

Alternatively, we find appellant is not entitled to relief because he waived any error related to Mil. R. Evid. 413 when he abandoned the issue by agreeing it was moot before the military judge deliberated on the findings. . . .

When the trial counsel used a demonstrative aid that appeared to support a finding of guilty based on the preponderance of the evidence, the state of the law was sufficiently settled to provide appellant a basis for objection. Any tactical decision not to object to this misstatement of the burden of proof in a judge-alone trial was not the product of insufficiently developed law. See Hills, 75 M.J. at 356 (quoting Coffin v. United States, 156 U.S. 432, 453-54 (1895)) (“The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”). Therefore, we find sufficient basis to hold appellant on appeal to his waiver at trial.

Slip op. at 6-7.

These holdings are quite remarkable.

Let’s take a look at the waiver holding first.

Errors are preserved by timely objections, and an appellant is entitled to relief from a preserved error (unless it is harmless). The mere failure to make a timely objection usually forfeits any error, and an appellant is entitled to relief from a forfeited error upon showing that the error was plain, obvious, and prejudicial (the plain error test). But waiver is the intentional relinquishment or abandonment of a known right, and a waived error means that there is no error to correct on appeal and an appellant is not entitled to any relief (though a CCA may, nevertheless, grant relief).

In Sanchez, Senior Judge Campanella concludes that the defense waived any error. This is really three decisions in one. First, there’s affirmative waiver of any error under Mil. R. Evid. 413, because the defense “abandoned the issue by agreeing it was moot before the military judge deliberated on the findings.” Slip op. at 6. Second, there’s implied waiver of any improper argument based on the failure to object. Slip at 6-7 (citing Mil. R. Evid. 905(e); Mil. R. Evid. 919(c)) (note: those citations are wrong, of course, because there is no Mil. R. Evid. 905 or 919). Third, there’s implied waiver of any Due Process issue regarding the burden of proof because “any tactical decision not to object to this misstatement of the burden of proof in a judge-alone trial was not the product of insufficiently developed law.” Slip op. at 7.

The problem with these findings of waiver is that CAAF has already addressed what happens in a case like this, and it’s not waiver. Specifically, in United States v. Harcrow, CAAF explained that a post-trial change in the law makes what might otherwise be an affirmative waiver a mere forfeiture:

At the time of trial, admissibility of the laboratory reports found support in M.R.E. 803(6) and Roberts. In that context, counsel’s strategic decision may well have been prudent. Crawford, however, opened the door for a colorable assertion of the right to confrontation where it was not previously available, and which under Bockting is now applicable on direct review. In this legal and factual context, defense counsel’s trial strategy could not be considered an “intentional relinquishment or abandonment” of Harcrow’s right to confront the laboratory personnel under Crawford. Cf. United States v. Stines, 313 F.3d 912, 917 (6th Cir.2002) (reasoning that there was no waiver because it “would have been impossible for the defendants to have intentionally relinquished or abandoned the Apprendi based claims considering Apprendi was decided after they were sentenced” ).

Accordingly, we conclude that there was no waiver in this case. Rather defense counsel’s “no objection” statements are appropriately treated as forfeitures, which require further analysis under the plain error rule. M.R.E. 103(d).

66 M.J. 154, 157-158 (C.A.A.F. 2009). Harcrow is clear and controlling precedent. It’s also compelling, because the defense in that case repeatedly said it had no objections to admission of the laboratory reports and CAAF still found no waiver. Harcrow also explains “that there is a presumption against the waiver of constitutional rights and for a waiver to be effective it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege.” 66 M.J. at 157 (marks and citations omitted).

Senior Judge Campanella’s opinion on reconsideration in Sanchez doesn’t mention – nevermind distinguish – Harcrow. It doesn’t address why the mere failure to object in Sanchez is waiver when repeated affirmative statements of no objection were forfeiture in the similarly-postured Harcrow, nor does it apply the Harcrow presumption against waiver of constitutional rights (that is drawn from Supreme Court precedent). And while Harcrow is just one case, it’s been applied plenty of times since, including just a few months ago in United States v. Oliver, 76 M.J. 271, __, slip op. at 6 (C.A.A.F. May 24, 2017) (CAAFlog case page) (“given the seemingly unsettled nature of the law at the time of Appellant’s court-martial and its clear resolution in his favor by Riggins at the time of appeal, we conclude that forfeiture rather than waiver applies in this case”).

Furthermore, Senior Judge Campanella’s conclusion that “the state of the law was sufficiently settled to provide appellant a basis for objection,” slip op. at 7, means that the defense should have objected to the improper use of charged offenses for propensity purposes in a judge-alone trial way back in 2014, before the Army CCA explicitly endorsed the practice, and before CAAF issued a pair of published opinions addressing this very issue. One has to wonder: If the law was so settled back in 2014 that failure to object constitutes waiver, how did the Army CCA get it so wrong in Barnes, Hills, and Hukill? Also, if the law was so settled, why did the trial counsel offer and argue the improper propensity evidence in the first place?

So the conclusion that the defense waived any error is almost certainly wrong. But it’s also dicta, since the panel also addresses the underlying error. Let’s take a look at that.

Senior Judge Campanella explains that even though the military judge improperly admitted charged offenses for propensity purposes, that “does not overcome the presumption that he or she knew and followed the law regarding the government’s burden of proof beyond a reasonable doubt.” Slip op. at 5. Put differently, an error in the admission of evidence is not the same as an error in the burden of proof. That’s perhaps debatable, but it’s certainly a reasonable conclusion. However, it resolves only half of the Hills issue.

CAAF’s opinion in Hills included two independent holdings. First, CAAF held that “it is impermissible to utilize M.R.E. 413 to show that charged conduct demonstrates an accused’s propensity to commit the charged conduct.” 75 M.J. at 353. That is an interpretation of the Rule of Evidence. Second, CAAF held that the “right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt [was] seriously muddled and compromised by the instructions as a whole.” 75 M.J. at 357. That is an analysis of the instruction given to the members. CAAF then summarized that:

Quite simply, we hold not only that charged offenses are not properly admitted under M.R.E. 413 to prove a propensity to commit the charged offenses, but also that the muddled accompanying instructions implicate “fundamental conceptions of justice” under the Due Process Clause by creating the risk that the members would apply an impermissibly low standard of proof. . .

75 M.J. at 357 (emphases added). That’s two separate holdings.

In Sanchez, however, the panel concludes only that the military judge understood the burden of proof (an issue implicated by CAAF’s second holding in Hills). The panel does resolve the altogether different question of whether inadmissible propensity evidence contributed to Sanchez’s convictions (the basis for CAAF’s first holding in Hills). Rather, the panel’s decision seems to rest on the paradoxical presumption that the military judge’s findings were not based on the propensity evidence he admitted.

And if the military judge didn’t base his findings on the admitted propensity evidence – as the panel certainly seems to presume – what’s to say he based his findings on any evidence at all?

Moreover, even though the military judge – quite erroneously – admitted charged offenses as evidence of Sanchez’s propensity to commit other charged offenses, and accepted argument about the same, Senior Judge Campanella’s opinion does not include a finding of actual error on the part of the military judge. Rather, the panel:

find[s] no improper use of propensity evidence by the military judge

Slip op. at 1. And:

In this case, the military judge did not state affirmatively that he would consider evidence of charged offenses to prove other charged offenses.

Slip op. at 6. And:

any misstatements by the trial counsel are not imputed to the military judge, absent evidence the military judge adopted the rationale of the misstatements.

Slip op. at 6. And:

What is missing is evidence of error on the part of the military judge, to whom the presumption attaches.

Slip op. at 6 (emphasis in original). And:

In sum, we find the presumption that the military judge knew and correctly followed the law was not rebutted in this case by the military judge’s silence in a judge-alone trial.

Slip op at 6.

Now it’s hardly controversial (post-Hills) to acknowledge that the military judge erred in this case, and it’s certainly no disparagement of the military judge (who didn’t have the benefit of two CAAF opinions, or even an objection from the defense). But the opinion simply doesn’t find error. It’s an astonishing bit of judicial footwork, particularly considering that in the first opinion Senior Judge Campanella wrote that:

the military judge’s erroneous view on the admissibility of propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable doubt.

First op. at 8 (emphasis added) (link to slip op.). Where the first opinion acknowledged that the judge had an erroneous view of the law, the second opinion now finds no “evidence of error on the part of the military judge.” Slip op. at 6 (emphasis omitted).

Sanchez was a drill instructor who had sex with his trainees. That has long been prohibited by various orders, and the Military Justice Act of 2016 makes it a violation of a new Article 93a, UCMJ. Sanchez pleaded guilty to three orders violations based on this misconduct, and the military judge convicted him of numerous other offenses including ten specifications of sexual assault and rape. It’s very possible that the use of charged offenses for propensity purposes was harmless error, as Senior Judge Campanella’s first opinion concluded, because the actual evidence of wrongdoing was so overwhelming. But that’s not why the convictions are affirmed now.

Rather, the panel concludes that there was no error because a military judge is presumed to follow law that that isn’t yet made (the Hills prohibition on using charged offenses for propensity purposes). It also concludes that defense counsel waived any error by failing to object to something that the court itself would later find unobjectionable. These conclusions seem to say that Army military judges and defense counsel (but not trial counsel or CCA judges) are clairvoyant, because they understood the limits on propensity evidence before anyone else.

9 Responses to “A panel of the Army CCA presumes that a military judge knows and follows (and that defense counsel makes decisions based on) law that isn’t made yet”

  1. Scott says:

    Fantastic article Zack. 

  2. Cheap Seats says:

    Does anyone know if there were special findings?  Or was it just general findings?  It is a stretch, but I see how the court can say the Defense hasn’t shown the MJ relied on improper propensity if he only offered general findings.  (He presumably followed the law, therefore not actually finding a preponderance and using propensity.)  If he issued special findings then he should have discussed propensity.  Another reason for DC to ask the MJ for special findings in a bench trial.

  3. Zachary D Spilman says:

    What do you mean by “relied on improper propensity,” Cheap Seats?

    If you mean that the military judge did not conflate preponderance of the evidence with beyond a reasonable doubt, that’s what the CCA’s opinion says and is – as I wrote – a perfectly reasonable conclusion, however it only resolves half of the Hills issue. 

    But if you mean that the military judge ignored the propensity evidence and argument entirely, then you have to explain why the military judge would admit evidence and allow argument just to ignore it. And I don’t think it’s reasonable to say that the military judge knew that CAAF would find such evidence and argument to be improper some years later (particularly considering that he allowed them).

  4. stay tuned says:

    Almost Unbelievable.  Most Service Courts do a better job hiding their results-oriented thinking.  How has the Army gotten so bad at hiding theirs?

  5. Cheap Seats says:

    Zack,
    The opinion implies that the MJ made no mention of actually employing MRE 413 in his deliberative process.  In fact, ”
    Although the trial counsel displayed a PowerPoint slide depicting the sum of the four victims’ testimony, as represented by their photographs, which equaled “guilty” by the “preponderance of the evidence,” the military judge acquitted appellant of an offense related to one of the victims. We infer from this finding of not guilty that the military judge did not adopt the trial counsel’s misunderstanding of the government’s burden of proof. ”
     
    I couldn’t find anywhere in the opinion where the court noted the judge actually considering propensity evidence at all.  He asked DC if he needed to resolve the MRE 413 issue and the counsel said no.  He never performed a 403 analysis.  Judges let in evidence all the time that isn’t actually relevant if someone were to object.  Judges and members often disregard this stuff.  Examples include what people did in their 20+ year career when they offer factual information that isn’t objected to and sets out a foundation (think personnel clerk who is now a records custodian).  People talk about what was going on around them to “set the scene” when it doesn’t make things more or less likely.  Finally, 413 allows admissibility of evidence for whatever purpose it is relevant.  It may be relevant to the credibility of another victim, but not for preponderance.  Because the MJ never said why (if at all) he used it, he is presumed to follow the (as yet decided) law.  “Moreover, this presumption of knowing and following the law applies to military judges even when an appellate court subsequently defines or clarifies the applicable law. See United States v. Rapert, 75 M.J. 164, 170 n.11 (C.A.A.F. 2016).
    Is this whole case an exercise in mental gymnastics, yes.  Will CAAF reverse, maybe.  I’m just not so sure this case is so wacky based on what is not in the record (as far as I know) and Rapert.

  6. Zachary D Spilman says:

    My focus, Cheap Seats, is on the law that the military judge is presumed to follow. Particularly considering that this was a pre-Hills case.

    If the law is that evidence of charged offenses may not be introduced and argued for propensity purposes, then the fact that the military judge allowed both is a prima facie case of misapplication of the law. To presume that he admitted both but nevertheless considered neither because he knew they were improper (knowledge he kept to himself) is – at a minimum – to say that he was clairvoyant. 

    It’s an altogether different thing to say that the improper propensity evidence and argument was harmless because the other (proper) evidence was overwhelming, but the CCA didn’t say that. Rather, the opinion on reconsideration puts in a lot of effort to not say that. 

  7. Vulture says:

    This is the Army Court off Criminal Appeals trying to put some light between it and the Bergdahl case if they have to through Judge Nance under the bus.  Or maybe they really are this loopy. 

  8. Colorado DC says:

    Perhaps ACCA’s failure to cite or even consider Harcrow is example #483 for why service court appellate judges without a career full of military justice experience prior to serving on the court, and limited experience on the bench (as compared to civilian equivalents), fall well short of their civilian counterparts.  Just another reason why part-time military justice practitioners do more harm that good.

  9. stewie says:

    ACCA is actually a lot better in that respect IMO. I remember in late 00s when they had some folks on there with almost zero MJ experience. It was quite frankly embarrassing. Now, most of the judges appear to have at least a decent amount of MJ experience.