CAAF issued summary dispositions in three Hills trailers yesterday, two from the Army and one from the Marine Corps. The court reverses the sex offense convictions in one case, but affirms in the other two (finding the Hills error to be harmless).

The findings of harmlessness come one day after CAAF heard oral argument in United States v. Williams, No. 17-0285/AR (CAAFlog case page), during which the bench was lively with questions about whether the error was harmless. CAAF recently found prejudice, reversing and rebuking the Army CCA in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page). These three newer dispositions provide additional detail about what the court finds acceptable (and not).

First, CAAF reverses in United States v. Thompson, __ M.J. __, No. 17-0254/AR:

No. 17-0254/AR. U.S. v. Michael D. Thompson. CCA 20140974. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, and in light of United States v. Guardado, ___ M.J. ___ (C.A.A.F. Dec. 12, 2017), it is ordered that said petition is hereby granted on the following issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT THE ERRONEOUS ADMISSION OF CHARGED OFFENSES TO PROVE OTHER CHARGED OFFENSES UNDER MIL.R.EVID. 413 WAS HARMLESS BEYOND A REASONABLE DOUBT.

The decision of the United States Army Court of Criminal Appeals is reversed as to Charge I and the specifications thereunder and the sentence. The findings of guilty as to Charge I and its specifications and the sentence are set aside. The remaining findings are affirmed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals. That court may order a rehearing on Charge I and its specifications and the sentence.

The CCA’s opinion is available here (link works) and reveals that both charged and uncharged allegations were allowed as evidence of the appellant’s propensity to commit the offenses in Charge I, under both Mil. R. Evid. 413 and 414. But the Army CCA distinguished the case from Hills on the basis that:

Hills involved two offenses against a single victim that occurred over the span of two hours on one night. The case relied heavily on the testimony of the victim who, at the time of assault, was heavily intoxicated and in and out of consciousness. DNA evidence in the case also proved inconclusive.

We have considered our superior court’s decision in Hills and find the present case is distinguishable on many fronts. Appellant sexually assaulted two victims on multiple occasions. The offenses involving MAJ YL occurred over a period of four months in 2003. The offenses involving Ms. UT occurred on various occasions over an eight-year period, from 2005 to 2013. Additionally, Major (MAJ) YL and Ms. UT’s memories of appellant’s assault were clear and compelling. As a result, we are convinced beyond a reasonable doubt that the propensity instruction did not contribute to the findings of guilty or appellant’s sentence, and any instructional error was harmless beyond a reasonable doubt.

Thompson, No. 20140974, slip op. at 3-4.

Second, CAAF affirms in United States v. Moore, __ M.J. __, No. 17-0323/AR. The court granted review in June but ordered no briefs, and I referenced the case in Part VIII of the 2016 Term End o’ Term Stats:

No. 17-0323/AR. U.S. v. Antonio T. Moore. CCA 20140875. On consideration of the granted issue, 76 M.J. 409 (C.A.A.F. 2017), the judgment of the United States Army Court of Criminal Appeals, United States v. Moore, No. 20140875 (A. Ct. Crim. App. Mar. 23, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017), we conclude that Appellant is not entitled to have the finding as to Specification 1 of Additional Charge I set aside.

Given the strength of the Government’s case, which included compelling victim and eyewitness testimony, the evidence of Appellant’s guilt was overwhelming, allowing us to “rest assured that an erroneous propensity instruction did not contribute to the verdict by ‘tipp[ing] the balance in the members’ ultimate determination.'” Guardado, __ M.J. at __ (7) (quoting United States v. Hills, 75 M.J. 350, 358 (C.A.A.F. 2016)).

Therefore, it is ordered that the judgment of the United States Army Court of Criminal Appeals is hereby affirmed.

(paragraphing added). The CCA’s opinion is available here (link works). The CCA concluded:

With regards to the six specifications at issue, we find the error was harmless beyond a reasonable doubt with respect to only one of the offenses. Accordingly, we set aside the findings of five specifications.

Moore, No. 20140875, slip op. at 2.

Finally, CAAF affirms in United States v. Luna, __ M.J. __, No. 17-0495/MC:

No. 17-0495/MC. U.S. v. Benjamin D. Luna. CCA 201500423. On consideration of the granted issue, 76 M.J. 477 (C.A.A.F. 2017), the judgment of the United States Navy-Marine Corps Court of Criminal Appeals, United States v. Luna, No. 201500423 (N-M. Ct. Crim. App. May 9, 2017) (unpublished), and the judgment of this Court in United States v. Guardado, __ M.J. __ (C.A.A.F. Dec. 12, 2017), we conclude that the military judge’s erroneous propensity instruction was harmless beyond a reasonable doubt—”it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Mitchell v. Esparza, 540 U.S. 12, 17–18 (2003).

The victim’s testimony was corroborated by witness testimony and incriminating text messages written by Appellant that implied he was at fault and could be jailed for his actions. In light of such overwhelming evidence, we are convinced that Appellant was convicted on the strength of the evidence alone. See Guardado, __ M.J. at __ (7).

Therefore, it is ordered that the judgment of the United States Navy-Marine Corps Court of Criminal Appeals is hereby affirmed.

(paragraphing added). I mentioned the grant in this post and the CCA’s opinion is available here. At the CCA Luna argued only that the findings were legally and factually insufficient, but the CCA specified a Hills issue. Slip op. at 2. The CCA found error, but no prejudice:

After considering the record as a whole, we find the facts of this case distinguishable from both Hills and Ellis and conclude that any error surrounding the admission of propensity evidence in this case to be harmless beyond a reasonable doubt. As we noted supra, Veronica’s testimony was compelling and was corroborated by Betty and the appellant’s own incriminating text messages. Moreover, the TC did not reference the propensity instruction or refer to propensity evidence during either his closing argument or in rebuttal. Rather, the TC reiterated, time and again, the government’s burden of proving each and every element of every specification beyond a reasonable doubt. Consequently, we are convinced beyond a reasonable doubt that the propensity instruction did not contribute to the findings of guilty or the appellant’s sentence.

Luna, no. 201500423, slip op. at 11.

2 Responses to “CAAF reverses one Hills trailer, affirms two (finding the error harmless because the evidence of guilt was “overwhelming”)”

  1. Shameless says:

    I would be embarrassed if my boss took all my work from me and did it herself.

  2. Bill Cassara says:

    Disclaimer: I am appellate counsel in U.S. v. Thompson.  I am glad CAAF seems to be drawing a line in the sand in these cases.  It gives the CCA’s much less wiggle room IMO.