CAAF’s will hear oral argument in United States v. Guardado, No. 17-0183/AR (CAAFlog case page), on Tuesday, October 10, 2017, after the argument in Jacobsen. The court granted review of two issues but requested briefing on only the first, which challenges the Army CCA’s published decision that identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes:

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.

In a published decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the Army CCA dissected CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page). Concluding that the Hills decision should be applied broadly, the panel nevertheless found that the improper use of charged sexual offenses as evidence of Guardado’s propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors:

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. . . .

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. Unfortunately, these five factors are barely referenced in the briefs filed in advance of next week’s argument. Rather, both sides offer a narrow view of the facts of the case, and mostly ignore the larger question of the appropriate framework to analyze a Hills error.

Master Sergeant (E-8) Guardado was accused of numerous offenses involving sexual misconduct, primarily with children. “The government’s charging strategy was aggressive,” observed the Army court. 75 M.J. at 891. Guardado was convicted of offenses involving “the assault of his daughter; the offenses against his niece; and the offenses against the children whom he coached in soccer.” 75 M.J. at 892. But the military judge instructed the members that they could use four of those specifications for propensity purposes. Guardado was then convicted of only one of those four specifications (the alleged assault of his daughter); the other convictions were of offenses that the military judge did not instruct could be used for propensity purposes. 75 M.J. at 896. The briefs to CAAF focus almost exclusively on Guardado’s conviction for assault of his daughter.

Guardado’s brief attacks “the weakness of the government’s evidence and the trial counsel’s closing argument.” App. Br. at 3-4. The weight of the evidence is a subjective consideration, but the prosecution’s closing argument squarely raises the propensity issue:

Over defense objection, trial counsel continued with his theme that the panel should convict appellant because he was a sexual predator.

“He is a predator that’s been preying on children for a long time.”

“Predators know what they need to do so they keep getting away with it.”

“Predators tell victims no one would believe them.”

“Predators isolate victims so there’s no witnesses.”

“[P]redators create an alibi so when they are accused they can say, I couldn’t have done it.”

And finally trial counsel concluded,

“And you saw what he did in this case. Exactly what he was trained that predators do.”

App. Br. at 16-17 (marks in original) (citations to record omitted). The Army CCA’s analysis didn’t include any discussion of this closing argument, an interesting factor that Guardado’s brief to CAAF fails to emphasize, which I think is a missed opportunity. The brief does, however, identify the trial counsel as “the same trial counsel who this Court previously ruled his use of the word predator in closing was improper. United States v. Sewell, 76 M.J. 14, 17 (C.A.A.F. 2017) [(CAAFlog case page)].” App. Br. at 17 n.3.

While Guardado’s brief fails to address the CCA’s five factors comprehensively, it does somewhat address the third factor: that “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.” 75 M.J. at 898. Put differently, the CCA found that if an accused is acquitted of an offense, the use of that offense for propensity purposes is harmless. Guardado casts this as “the Army Court ignor[ing] the possibility that the panel used offenses of which the panel acquitted appellant for propensity purposes.” App. Br. at 6. And his brief includes the observation that:

The preponderance of the evidence standard is such that a panel may very well have determined that evidence of the specifications of which appellant was acquitted nevertheless rose to the level of a preponderance of the evidence, which would allow it to utilize this specification for propensity purposes.

App. Br. at 12. This is a long way of saying that even an acquitted offense could have contributed to the convictions.

The Army Government Appellate Dvision’s brief, however, makes the opposite argument:

It is not reasonable to assume that (1) the panel believed that Appellant raped [the other alleged victim] by a preponderance of the evidence; (2) yet acquitted him of the higher beyond a reasonable doubt standard.

Gov’t Div. Br. at 10. This is a remarkable concession. If the panel was incapable of acquitting where the proof was merely a preponderance of the evidence, then they were equally capable of convicting in the absence of proof beyond a reasonable doubt. Put differently, the Army Government Appellate Division seems to believe that once a panel finds an allegation proven by a mere preponderance of the evidence, a conviction is inevitable. That’s exactly the “risk that the members would apply an impermissibly low standard of proof” that troubled CAAF. Hills, 75 M.J. at 357.

The Government Division’s brief also argues that an acquittal is the equivalent of an exoneration:

The panel was instructed that, before they could use propensity evidence, they must find that the offenses occurred by a preponderance of the evidence. The panel did not find that the other sexual offenses occurred at all, and so there can be no prejudice because no propensity evidence played a part in the panel’s findings.

Gov’t Div. Br. at 11-12. It is, however, pretty well-settled that an acquittal is not the same as an exoneration, but instead “the court-martial may merely have given the accused ‘a break.'” United States v. Lyon, 35 C.M.R. 279, 285 (C.M.A. 1965).

Guardado’s reply brief returns to the prosecution’s closing argument:

The trial counsel’s closing argument, here, makes prejudice even more egregious than in Hills and Hukill. In its brief before this Court, the Government completely ignored this additional issue and failed to address it. The trial counsel’s closing argument magnified error. His theme focused on propensity evidence as he repeatedly called appellant a predator and argued that appellant was the type of man who often engaged in sexual misconduct. The two page “spillover instructions” that trial counsel highlighted to the panel and specifically asked them to read included the aforementioned propensity instructions. (JA 287 – 90). Not only did trial counsel focus on these improper instructions, he essentially argued the panel should convict appellant because he is a predator. (JA 366; 371).

Reply Br. at 3-4. This is likely Guardado’s best argument for reversal in his case, but – again – it does little to address the CCA’s five-factor test (that didn’t even mention the closing argument).

Guardado’s brief also seeks to expand the granted issue beyond the question of propensity, challenging the military judge’s Mil. R. Evid. 404(b) instruction that the members could use the charged offenses as proof of Guardado’s intent to commit the charged offenses. See App. Br. at 18-23. In a footnote, the Government Division’s brief asks CAAF to reject this argument. Gov’t Div. Br. at 7 n.2. I suspect it will.

Another significant factor is that the defense did not object to the propensity instruction at trial, so this is a case of forfeited error reviewed under the plain error standard. 75 M.J. at 897 n.10. Because the error was preserved by objections in Hills and Hukill, this is the first time CAAF will fully review the improper use of charged offenses for propensity purposes under the plain error standard.

Accordingly, I predict that CAAF will try to look beyond the unique facts this case and focus the parties on the CCA’s analytical framework during next week’s oral argument. The court will also likely press both sides to address whether (and, if so, how) this error should be reviewed differently considering the lack of objection at trial.

This is now the third term in a row that CAAF has had to address the misuse of charged offenses for propensity purposes, and I suspect that it’s seeking some finality.

Case Links:
ACCA opinion (75 M.J. 889)
Blog post: The Army CCA dissects Hills
Blog post: CAAF to review the Army CCA’s decision in Guardado
Appellant’s brief
Appellee’s (Army Gov’t App. Div.) brief
Appellant’s reply brief
Blog post: Argument preview

4 Responses to “Argument Preview: The parties offer a narrow view of the issue in United States v. Guardado, No. 17-0183/AR”

  1. John Marshall says:

    Maybe the parties didn’t discuss the multilayered, manufactured, multi factor test from ACCA because it is now so obviously wrong in light of Hukill? Regarding forfeiture, is it not enough that the error is plain and obvious at the time of appeal? Granted, there is a difference in the burden for prejudice, but methinks the perniciousness of the error and the prosecutor’s argument will be sufficient.  Even if the parties failed to analyze Judge Wolfe’s made up test, mayhaps the CAAF will as it is emphatically the province of the judicial department to say what the law is….

  2. Zachary D Spilman says:

    That’s a remarkably dim view of the parties, John Marshall. Hukill and Guardado are very different cases. 

    The standard of review is the most obvious difference. Hukill (like Hills) was a case of preserved error because the defense objected, while Guardado is a plain error case because the error was forfeited by the failure to object. So while the Government had to prove harmlessness in Hukill (and Hills), the burden is on the defense to prove prejudice in Guardado

    But the structure of the two cases – Hukill as a judge-alone trial and Guardado as a members trial – is also a significant difference, since the CCA’s decision in Hukill was wholly focused on the fact that the case was tried judge-alone. In it’s 3-page decision, the CCA held:

    Although the military judge earlier in the proceeding ruled that the government could use propensity evidence in a manner found to be in error in Hills, this ruling became moot by virtue of appellant’s election for a bench trial

    United States v. Hukill, No. 20140939, slip op. at 3 (A. Ct. Crim. App. Aug. 16, 2016) (emphasis added) (discussed here).

    CAAF rejected this holding, explaining that:

    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.

    United States v. Hukill, 76 M.J. 219, 222 (C.A.A.F. May 2, 2017) (CAAFlog case page). 

    CAAF then analyzed the prejudice from this preserved error (where the Government had the burden to prove harmlessness) and concluded:

    On this record, we find that the Government failed to prove there was no reasonable possibility that the error contributed to the verdict. 

    76 M.J. at 223.

    The language of the granted issue in Guardado is also significant. CAAF wants to know if the CCA “incorrectly found that the military judge’s panel instructions were harmless” (emphasis added). That’s a focus on the prejudice, not the error (and the court has stressed the difference in recent years). The granted issue in Hukill, however, focused on the error (“whether … the military judge abused his discretion…”).

    Furthermore, if Hukill was remotely dispositive to this case, CAAF would have summarily reversed and remanded for reconsideration in light of Hukill (as it did in many other cases, noted here).

    The CCA’s five-factor test in Guardado is a test for prejudice. CAAF’s looking for a reason to adopt it or reject it. The briefs, however, look elsewhere. That may be the best strategy for Guardado personally, but I don’t think it’s going to satisfy the court next week.

  3. John Marshall says:

    Oh come now, Zach Spillman.  It may be a “dim” view of the parties, but is it “remarkably” so?  My answer to why they didn’t discuss the made-up, five-factor test:  “It’s obviously wrong” and I will add “not really a standard, just a rubric for the judge expressing their personal predilection,” and, thus, “indefensible,” which is why the government didn’t discuss it.  Your answer as to why the parties didn’t discuss it:  They simply neglected to do so?  Which begs the question, whose view of the parties is more remarkably dim?

  4. Zachary D Spilman says:

    I don’t know why the briefs don’t squarely address the Guardado factors, John Marshall, but I credit the parties with avoiding them deliberately (and not based on some misinterpretation of Hukill, which barely applies if it applies at all). And I assume the Government Division is happy to avoid discussing the factors, since they’re Government-friendly factors.

    But your arguments that the Guardado factors are “obviously wrong” and “just a rubric for the judge[s] expressing their personal predilection,” don’t hold up. While CCA can be read as court of criminal affirmances, I don’t think the panel that decided Guardado, nor the panels that have relied on the Guardado decision, are rewriting the law to fit their personal opinions. If fact, I think that’s a deeply unfair characterization.

    Now I’m not a particularly big fan of the Guardado factors, but some of them are pretty solid. For example, the first Guardado factor is that the improper use of propensity evidence is not per se prejudicial. 75 M.J. at 897 (“CAAF has previously found instructions that included propensity stemming from charged offenses to be harmless”). That’s pretty obviously true and plenty defensible, particularly considering that CAAF undertook a prejudice analysis in Hills and Hukill

    Additionally, the fourth Guardado factor is that the result would have been the same without the improper use of propensity. 75 M.J. at 898 (“even if no propensity instruction had been given, the results in this trial would have been the same”). This seemingly subsumes all other factors, but the CCA explained that “weak evidence offered to show propensity poses less danger of contributing to the verdict.” 75 M.J. at 898. That’s also pretty obviously true and plenty defensible; harmlessness is when the reviewing court finds the “error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.” United States v. Hills, 75 M.J. 350, 358 (C.A.A.F. 2016) (quoting United States v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007)). Strong propensity evidence is undoubtedly more problematic than weak propensity evidence. 

    More to the point, however, is that I think CAAF granted review in this case in order to discuss the factors, and that it’s going to want to do that during next week’s oral argument. If I’m wrong about that, we’ll know soon enough.

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