Opinion Analysis: A divided CAAF holds that all constitutional errors – whether preserved or forfeited – are reviewed for harmlessness beyond a reasonable doubt, in United States v. Tovarchavez
CAAF decided the Army case of United States v. Tovarchavez, __ M.J. __, No. 18-0371/AR (CAAFlog case page) (link to slip op.), on Friday, May 31, 2019. A divided court concludes that any time an error is constitutional in nature – even if it was forfeited by the failure to object at trial and is reviewed on appeal under the plain error standard – reversal is required unless the error is harmless beyond a reasonable doubt. Non-constitutional errors, in contrast, need only be merely harmless to avoid reversal. Accordingly, CAAF reverses the decision of the Army CCA that affirmed the conviction by applying the mere harmlessness standard, and it also reverses the findings and sentence due to a Hills error.
Judge Ryan writes for the court, joined by Judges Ohlson and Sparks. Judge Maggs dissents, joined by Chief Judge Stucky.
CAAF granted review of a single issue:
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.
In 2015, Specialist (E-4) Tovarchavez was tried by general court-martial for 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 to the instruction. 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.
An error is when something is done wrong at trial. As a general rule, errors can be preserved, forfeited, and waived. An error is preserved by a timely objection, it is forfeited by the failure to object, and it is waived when the accused knowingly and intentionally relinquishes the underlying right (or when a rule makes the failure to assert the right a waiver). At the two extremes, an accused is entitled to relief from a preserved error, and a waiver means that there is no error. Forfeited errors are in the middle, and they are reviewed using the plain error test. The plain error test penalizes the accused (who failed to object at trial) by requiring on appeal that he show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right.
Identifying prejudice, however, is a key component of appellate review. Early American courts – applying English common law rules – would reverse a conviction (and authorize another trial) for any error. Congress eventually enacted rules that permitted reversal only where the error affected substantial rights, creating the harmless error doctrine. Under the harmless error doctrine, a conviction may be affirmed despite almost any kind of error at trial if the error is found to be harmless. See Fed. R. Crim. Proc. 52. See also Stephen A. Saltzburg, The Harm of Harmless Error, 59 Va. L. Rev. 988, 1006 n.57 (1973) (discussing 28 U.S.C. § 2111 as identical to language first enacted in 1911).
Congress explicitly incorporated the harmless error doctrine into military law in Article 59(a), which states:
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.
The harmlessness of an error (or the existence of prejudice) is a separate consideration from whether an error was preserved, forfeited, or waived, and it involves separate tests. An ordinary error is harmless “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 must be 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.” United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)) (additional citation omitted).
Chapman was a hugely important case in the area of harmless error because it held that even constitutional errors (in that case it was commenting on the accused’s failure to testify) can be harmless, but only if the error meets the higher standard of harmlessness beyond a reasonable doubt. The facts and procedural posture of Chapman are very similar to those of Tovarchavez: Both cases involve constitutional error with no objection at trial and a post-trial change in the law that clarified that the error was actually an error, and in both cases the lower court applied mere harmlessness to affirm the conviction.
Specifically, when it reviewed the improper use of charged offenses for propensity purposes (the Hills error) in Tovarchavez, the Army CCA applied the mere harmlessness standard (used for nonconstitutional errors) rather than the harmless-beyond-a-reasonable-doubt standard (used for constitutional errors like a Hills error). Writing for a two-judge majority of a three-judge panel of the CCA, Judge Wolfe held that:
the appropriate prejudice analysis for unpreserved error–even error of a constitutional magnitude–is whether the error [merely] materially prejudiced the substantial rights of appellant.
United States v. Tovarchavez, No. ARMY 20150250, slip op. at 10 (A. Ct. Crim. App. July 19, 2018) (link to slip op.). Then the majority found the error harmless (though not harmless beyond a reasonable doubt):
Given the strength of the evidence . . . we fail to find a material prejudice to any of appellant’s substantial rights. . . .
But to the extent we are wrong, we have also considered whether the evidence is strong enough to convince us that the error was harmless beyond a reasonable doubt. . . . We are not convinced.
Tovarchavez, slip op. at 14. Senior Judge Campanella dissented, castigating “the majority [for] creat[ing] a dispute where there is none between the parties,” slip op. at 18, while “agree[ing] with the majority’s assessment that the instructional error here was not harmless beyond a reasonable doubt,” slip op. at 19. CAAF then granted review.
In Friday’s opinon a majority of CAAF concludes that regardless of whether an error is preserved or forfeited, if the error is constitutional in nature then reversal is required unless the error is harmless beyond a reasonable doubt.
Writing for the majority, Judge Ryan explains that the Article 59 requirement of material prejudice to a substnatial right of the accused “must be understood by reference to the nature of the violated right.” Slip op. at 3. Judge Ryan writes:
In this case, all agree that there was error, that the error was constitutional in nature, and that, in light of Hills, the error was clear or obvious. The sole question is whether the error “materially prejudiced a substantial right of the accused. . . .
First, the overwhelming weight of this Court’s precedent demonstrates that material prejudice for forfeited constitutional errors under Article 59, UCMJ, is assessed using Chapman’s “harmless beyond a reasonable doubt” test. Jones, 78 M.J. at 45. Second, and relatedly, any interpretation of “material prejudice” must be squared with Chapman’s requirement that constitutional error requires reversal of a conviction unless it can be shown “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24. Third, we are unpersuaded that the federal circuit courts’ frequent application of a lower standard when assessing prejudice arising from forfeited constitutional errors either permits or requires us to jettison the Chapman standard for constitutional error when assessing prejudice under Article 59, UCMJ.
Slip op. at 8.
The majority also chastizes the Army CCA for its adventurism. Judge Ryan writes that Judge Wolfe’s majority opinion was “an incorrect application of the law and flatly inconsistent with established precedent of this Court,” slip op. at 2, while “the lone dissenter at the ACCA, in contrast, persuasively and succinctly explained that the ACCA majority incorrectly applied this Court’s controlling precedent,” slip op. at 3 n.3. Flogging the lower court and the Government Division for “grasping at thin reeds indeed,” and “unreasonably cling[ing]” to parsed words from a few decisions, slip op. at 10, Judge Ryan dismisses any suggestion that CAAF’s precedent “endorsed a different standard for material prejudice [in a case like this] or sub silentio overruled precedent that holds squarely to the contrary [to the Amy court’s decision],” slip op. at 11. Rather, she explains:
precedent, viewed in tandem with our cases assessing prejudice for nonconstitutional errors, demonstrates clear direction running through our case law: we test for prejudice based on the nature of the right violated, whether the error is preserved or not.
Slip. op. at 11. The battering continues a few pages later, with Judge Ryan writing that:
the position taken by the ACCA has been raised in dissent myriad times. . . . And we have repeatedly rejected the argument, presented in each of those cases, that, when assessing prejudice under Article 59, UCMJ, we either should or must follow the plain error doctrine applied in the federal courts. The mere existence of the labored and erroneous CCA opinion in this case or dissents in other cases from this Court neither undermines the force of stare decisis nor makes our precedent unworkable.
Slip op. at 18 (citations omitted) (emphasis added). Ouch.
The dissenters don’t exactly defend the Army court, but they do reach the same conclusion. Writing for himself and Chief Judge Stucky, Judge Maggs asserts that:
The Supreme Court’s decisions in [Johnson v. United States, 520 U.S. 461, 467 (1997)] and [United States v. Cotton, 535 U.S. 625 (2002)] show that the Constitution does not require courts to apply Chapman’s harmlessness beyond a reasonable doubt test when reviewing forfeited objections to constitutional errors. The standard of review was contested in both cases and in both cases the Supreme Court did not test the constitutional error for harmlessness beyond a reasonable doubt. All of the other United States Courts of Appeals that hear criminal cases agree with this position; none of them applies the Chapman harmlessness beyond a reasonable doubt test when reviewing forfeited constitutional objections. Among all these federal courts, our Court is the outlier, and our position is incorrect.
Diss. op. at 3-4. A footnote then cites cases from each circuit that “reviewed forfeited objections to constitutional errors using the Olano test rather than a test of harmlessness beyond a reasonable doubt.” Diss. op. at 4 n.4.
Judge Ryan and the majority reject Judge Maggs’ argument that Johnson and Cotton applied a lesser standard, with a footnote that states:
Later cases—Johnson and Cotton—involved forfeited constitutional error, but in both cases the Supreme Court side stepped the issue of prejudice and resolved the case on the fourth prong of Olano (which has not been adopted in the military system, see supra note 14). Johnson, 520 U.S. at 469; Cotton, 535 U.S. 625, 632–33 (2002).
Slip op. at 16 n.15. And, indeed, a review of Johnson and Cotton show that they simply do not say what the dissenters claim they say because in both cases the Court expressly declined to decide whether the error was harmless or not. First, in Johnson, it held that “we need not decide that question because, even assuming that the failure to submit materiality to the jury ‘affected substantial rights,’ it does not meet the final requirement of Olano.” 520 U.S. at 469. Then, in Cotton, the Court held that: “As in Johnson, we need not resolve whether respondents satisfy this element of the plain-error inquiry, because even assuming respondents’ substantial rights were affected, the error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings.” 535 U.S. 632-33 (citation omitted). Rather than turning on prejudice, both Johnson and Cotton turned on the fourth prong (the final requirement) of Olano; something that CAAF has consistently refused to apply to military appeals. Accordingly, while Judge Maggs is technically correct that “in both cases the Supreme Court did not test the constitutional error for harmlessness beyond a reasonable doubt,” that’s only because in both cases the Court did not test for harmlessness at all.
Judge Ryan’s majority opinion contains this footnote that seems to address the dissenters’ conflation of plain error review and harmless error review:
In the interest of clarity, we note, as demonstrated throughout this opinion, that distinguishing between plain error and constitutional harmlessness is analytically flawed. The proper distinctions, rather, are between preserved and forfeited error and constitutional and nonconstitutional rights. Forfeited errors are subject to plain error review, while preserved errors are not. Under Article 59, UCMJ, all errors of law—preserved or not—must have prejudiced an appellant’s rights, and the test we employ to determine prejudice depends on the nature of the right. See supra pp. 8–12.
Slip op. at 18 n.18.
As for the federal circuit cases cited by Judge Maggs, a cursory review suggests that they do not clearly state the proposition that a forfeited (plain) constitutional error need not be harmless beyond a reasonable doubt to permit the conviction to be affirmed. Judge Ryan explains why – while also explaining why military practice is necessarily an outlier – in her majority opinion:
To be certain, the federal circuit courts appear to regularly evaluate prejudice arising from forfeited constitutional errors by requiring an appellant to establish that, “had the error not occurred, there is a ‘reasonable probability’ that” the outcome would have been different. And we often both review and give persuasive weight to the decisions of the federal circuit courts of appeal. Nevertheless, we decline to follow their lead because we do not find a satisfactory rationale for the federal courts’ side stepping of Chapman and we must interpret our own statute consistent with our precedent.
Article 59(a), UCMJ, only permits appellate error correction where the error “materially prejudices . . . substantial rights.” This is true regardless of whether the error was preserved or forfeited. As discussed supra pp. 8–12, the settled practice of this Court, consonant with the statutory requirements of Article 59(a), UCMJ, is to assess prejudice—whether an error is preserved or not—based on the nature of the right.
The federal circuit courts review errors under a different framework: preserved error under Fed. R. Crim. P. 52(a) and forfeited error under Fed. R. Crim. P. 52(b).
Slip op. at 15 (citations omitted). Furthermore, even if the federal circuits test only for a reasonable probability that the error affected the outcome (that is, mere harmlessless), any error that is not merely harmless is also not harmless beyond a reasonable doubt. It’s the rare case indeed where – as in Tovarchavez – an error is slight enough to be harmless but not so slight as to be harmless beyond a reasonable doubt.
To that end, the burden matters. If, in Tovarchavez, the burden is on the defense to show that the error is not merely harmless, then the defense loses because the error is merely harmless. But if, however, the burden is on the Government Division to show that the error is not harmless beyond a reasonable doubt, then the Government Division loses because the error is not harmless beyond a reasonable doubt.
The burden, explains Judge Ryan, is on the Government Division:
While a different question than what prejudice must be established, which is clear, we recognize that this Court’s precedent is less than clear regarding the party that bears the burden with respect to prejudice. Nonetheless, Chapman—a case just like this one—clearly dictates that, in the case of a constitutional error, the “beneficiary of the error,” the Government here, must show that the error was harmless beyond a reasonable doubt. 386 U.S. at 24. To the extent that the discussion in United States v. Olano, 507 U.S. 725 (1993), suggests a different allocation of the burden, its interpretation is based on the text of Fed. R. Crim. P. 52(a) (preserved error) and Fed. R. Crim. P. 52(b) (forfeited error). Olano, 507 U.S. at 734–35. (“This burden shifting is dictated by a subtle but important difference in language between the two parts of [Fed. R. Crim. P.] 52.”). In contrast, Article 59, UCMJ, does not delineate between preserved and forfeited error.
Slip op. at 7 n.6 (emphases in original).
The majority then reviews the reasons why the error is not harmless beyond a reasonable doubt and the conviction must be reversed:
The ACCA’s conclusion that this Hills error was not harmless beyond a reasonable doubt was supported by two specific observations. First, while SPC JR’s testimony describing the event was supported by DNA evidence, the DNA evidence did not directly contradict the defense theory of the case. Id. at *22, 2018 WL 3570591, at *9. Second, Appellant’s text message apologies do not unassailably establish his consciousness of guilt.
First, the presence of DNA was entirely consistent with the defense theories that that SPC JR either consented or that Appellant acted under a reasonable mistake of fact as to consent, the mere presence of his DNA does not defeat his defense. Second, while Appellant’s text message apologies could be interpreted as establishing consciousness of guilt, they could also have been “statements from someone who knows they have acted inappropriately, but not criminally.” Id., 2018 WL 3570591, at *9. Third, Appellant was acquitted of the Specification 1, making it less clear that the bootstrapping effect of the instruction did not “tip the balance” with respect to the members’ ultimate determination regarding Specification 2. Hills, 75 M.J. at 358.
Slip op. at 20.
• ACCA opinion
• Blog post: CAAF grants review
• Appellant’s brief
• Appelllee’s (Gov’t Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio (wma) (mp3)
• CAAF opinion
• Blog post: Opinion analysis