CAAF will hear oral argument in the Army case of United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page), on Wednesday, February 20, 2019, at 9:30 a.m. A single granted issue challenges the standard applied by the Army CCA when it affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt:

Whether the Army Court erred, first, in finding that this Court overruled sub silencio the Supreme Court holding in Chapman v. California, 386 U.S. 18, 24 (1967), and this Court’s own holdings in United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F. 2006), and in United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in testing for prejudice in this case using the standard for nonconstitutional error.

Specialist (E-4) Tovarchavez was charged with sexually assaulting another soldier on two occasions. The military judge instructed the members that they could use the charged offenses as evidence of Tovarchavez’s propensity to commit the charged offenses (the Hills error), and the defense did not object. Tovarchavez was then convicted of one of the two charged offenses and sentenced to confinement for two years, reduction to E-1, total forfeitures, and a dishonorable discharge.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Because Tovarchavez’s defense counsel didn’t object (and, in fact, affirmatively stated that the defense had no objection) to the improper propensity instruction, the error was forfeited and the plain error test applies. The plain error test penalizes the failure to object by shifting the burden on appeal to the appellant, forcing him to show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right. But the requirement of material prejudice to a substantial right is not unique to the plain error test in military law; Article 59(a) states that:

A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.

Put differently, if a legal error is harmless then a court-martial conviction may not be reversed. How harmless, however, depends on the error. For an ordinary error, mere harmlessness is enough; the error is not prejudicial (and the conviction may not be reversed) “if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues of the case.” United States v. Muirhead, 51 M.J. 94, 97 (C.A.A.F. 1999). But if the error affects a constitutional right, then a heightened standard applies; the error is prejudicial unless it is harmless beyond a reasonable doubt. And “an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction.” Hills, 75 M.J. at 357-58 (marks and citations omitted).

A Hills error is constitutional error. Nevertheless, in the CCA’s second opinion in Tovarchavez, a two-judge majority of a three-judge panel of the Army CCA applied the lower standard of mere harmlessness (and not the higher standard of harmlessness beyond a reasonable doubt) to that error, in part because the error was forfeited by the failure to object at trial. The majority found the error harmless and affirmed the conviction, but it also explained that the error was not harmless beyond a reasonable doubt. Accordingly, the outcome of the case hinges on which standard of harmlessness applies.

Tovarchavez’s brief presents two simple propositions: “the Supreme Court[‘s] decision in Chapman v. California . . . established harmless beyond a reasonable doubt as the test for prejudice when constitutional error was not preserved at trial,” and “the Supreme Court also forbade lower courts from departing from the test announced in Chapman in favor of a competing definition of harmless error.” App. Br. at 7. Accordingly, argues Tovarchavez, the applicable standard for harmlessness is harmlessness beyond a reasonable doubt and only the Supreme Court can change that.

The Government Divison’s brief asserts that the law is not so clear.

Pointing to “recent case law” the Government Division argues that the standard for harmlessness for a forfeited error is unsettled:

Recent case law seemingly created a different analysis based upon whether a Hills error was preserved or not, regardless of whether it was one of constitutional magnitude. Consequently, recent developments suggest that the proper test to apply when the Courts of Criminal Appeals (CCAs) analyze prejudice is the plain error test of substantial prejudice to a material right. That said, the question remains: does an appellant only prevail when he proves prejudice in that he was materially prejudiced to a substantial right, or can an appellant prevail if the government fails to prove that the error was not harmless beyond a reasonable doubt?

In this case, the Army Court relied on CAAF’s most recent Hills-related opinion, United States v. Williams, to conclude that where there is unpreserved constitutional error, the third prong of the prejudice test should be whether an appellant was materially prejudiced to a substantial right, and not whether the government can prove the error was harmless beyond a reasonable doubt. The Army Court’s conclusion appears reasonable. Regardless, the government notes that the current landscape is confusing, because many cases appear to apply the harmless beyond a reasonable doubt standard regardless if the error was preserved.

Gov’t Div. Br. at 7. The Government Division then focuses on three CAAF decisions and one pragmatic consideration to argue that the lower standard of harmlessness applies to forfeited constitutional errors:

In light of Guardado, Robinson, and Williams, the Army Court reasonably determined that “the appropriate prejudice analysis for unpreserved error–even error of constitutional magnitude–is whether the error materially prejudiced the substantial rights of appellant.” (JA 22 (citing Article 59(a), UCMJ)). Moreover, if the standard test for all Hills errors is declared harmless beyond a reasonable doubt, regardless of forfeiture, the need to advocate and preserve the issue at the trial level is wholly erased.

Gov’t Div. Br. at 24.

Tovarchavez’s reply brief addresses two of those decisions, arguing that they actually support the higher standard for harmlessness and not the lower standard as the Government Division suggests:

United States v. Williams, 77 M.J. 459 (C.A.A.F. 2018) [(CAAFlog case page)]: As in this case,Hills had not been decided at the time of Williams’ court-martial and trial defense counsel did not object to the military judge’s propensity instructions. On appeal, the Army Court applied harmlessness beyond a reasonable doubt. United States v. Williams, 2017 CCA LEXIS 24, *3-4 (A. Ct. Crim. App. January 12, 2017). This Court also applied a harmless beyond a reasonable doubt when measuring prejudice under the third prong of plain error, stating “we simply cannot be certain that the erroneous propensity instruction did not taint the proceedings or otherwise “contribute to the defendant’s conviction or sentence,’” [Williams, 77 M.J. at 462-63 (citing Hills, 75 M.J. at 357)]. This was a reiteration of the harmless beyond a reasonable doubt standard outlined by this Court in Hills. . .

. . .

United States v. Guardado, 77 M.J. 90 (2017) [(CAAFlog case page)]: As in this case, Hills was not decided at the time of the court-martial. Id. at 93. On appeal, the Army Court applied harmlessness beyond a reasonable doubt, as required by Chapman. United States v. Guardado, 75 M.J. 889, 891, 893, 899 (A. Ct. Crim. App. 2016). This Court used the Chapman test to determine material prejudice to a substantial right. . .

Reply Br. at 5. The reply brief does not address Robinson, but perhaps that’s because CAAF’s decision in Robinson explicitly applied the higher, harmless-beyond-a-reasonable-doubt standard:

assuming without deciding that the military judge erred in excluding constitutionally required evidence of the victim’s flirtatious relationship with Appellant, the error was harmless beyond a reasonable doubt.

United States v. Robinson, 77 M.J. 294, 296 (C.A.A.F. 2018) (CAAFlog case page) (emphasis added).

As for the Government Division’s pragmatic argument, Tovarchavez’s reply brief emphasizes that Hills had not yet been decided at the time of his trial and so any objection would have been fruitless (because – as we noted in the #6 Military Justice Story of 2015 – the use of charged offenses was widely viewed as proper prior to CAAF’s decision in Hills). Accordingly, argues Tovarchavez:

Where the law was unsettled at the time of trial, and an objection at trial would have been futile and fruitless, this Court should treat the error as preserved. The underlying reasoning for applying a higher burden for appellants in a plain error review are inapplicable in such cases.

Reply Br. at 5.

Case Links:
ACCA opinion
Blog post: CAAF grants review
Appellant’s brief
Appelllee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

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