Over a year ago, in this post, I analyzed an unpublished opinion by a panel of the Army CCA in United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017).

The case involved the improper use of charged offenses for propensity purposes; a persistent error that CAAF addressed in 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), reiterated in United States v. Hukill, 76 M.J. 219 (C.A.A.F. May 2, 2017) (CAAFlog case page), emphasized as a serious and likely prejudicial error in United States v. Guardado, 77 M.J. 90 (C.A.A.F. Dec. 12, 2017) (CAAFlog case page), and then reiterated again – with exasperation – in United States v. Williams, 77 M.J. 459 (C.A.A.F. Jun. 27, 2018) (CAAFlog case page), where Chief Judge Stucky (writing for a unanimous court) observed that:

this is the third case in which we have had to correct a Court of Criminal Appeals’ judgment on this issue.

77 M.J. at 460 (citing Hukill and Guardado). Left unsaid was that all three cases – four, including Hills – were Army cases.

Sanchez, however, was different in a remarkable way. Staff Sergeant (E-6) Sanchez was tried by a court-martial composed of a military judge alone way back in 2014, long before CAAF decided Hills. The trial even pre-dated the Army CCA’s decision in United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), which affirmed the use of charged offenses for propensity purposes and was widely accepted as good law (the Air Force and Navy-Marine Corps CCA both reached similar conclusions, and that was our #6 Military Justice Story of 2015). CAAF even denied review in Barnes on July 28, 2015. The military judge in Sanchez did what Barnes later allowed but Hills even later prohibited. Yet the CCA found “no improper use of propensity evidence by the military judge.” Sanchez, slip op. at 1. Furthermore, the CCA found that the defense waived any error by either failing to object or agreeing that the issue was moot. I summarized those finding in the title of my post as:

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

Yesterday CAAF returned the case to the Army CCA:

No. 17-0592/AR. U.S. v. Angel M. Sanchez. CCA 20140735. 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. Burris, 78 M.J. 56 (C.A.A.F. 2018) (summary disposition), United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018), United States v. Andrews, 77 M.J. 393 (C.A.A.F. 2018), United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and United States v. Sweeney, 70 M.J. 296 (C.A.A.F. 2011), it is ordered that said petition is granted on the following issue:

WHETHER THE ARMY COURT MISAPPLIED THIS COURT’S CONTROLLING PRECEDENTS IN CONCLUDING: (1) THE MILITARY JUDGE DID NOT CONSIDER EVIDENCE TO COMMIT OTHER CONDUCT, AND (2) DEFENSE COUNSEL “WAIVED” THIS ISSUE BY FAILING TO OBJECT AT TRIAL.

The decision of the United States Army Court of Criminal Appeals is reversed. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for a new review under Article 66, Uniform Code of Military Justice, 10 U.S.C. § 866 (2012).

This action is also remarkable, in part because it’s a long time coming (Sanchez petitioned CAAF for review way back on September 15, 2017 (77 M.J. 35)) and in part because it returns the case to the Army CCA for what will be its third review (the CCA issued its first opinion – affirming the findings and sentence – on March 28, 2017, but then granted reconsideration in light of Hukill).

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