CAAFlog » October 2017 Term » United States v. Guardado

Audio of today’s oral arguments at CAAF is available at the following links:

United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page): Oral argument audio.

United States v. Guardado, No. 17-0183/AR (CAAFlog case page): Oral argument audio.

United States v. Hennis, No. 17-0263/AR (motion to compel funding) (CAAFlog case page): Oral argument audio.

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.

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In this post I analyzed the Army CCA’s decision in United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016). The CCA dissected CAAF’s opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), and identified five factors to consider when determining if an appellant was prejudiced by the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 (and, presumably, 414):

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. As discussed above, while the CAAF found the instruction to be error, the court found it harmless.

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 (emphasis in original).

On March 3 CAAF granted review:

No. 17-0183/AR. U.S. v. Alan S. Guardado. CCA 20140014. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:

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.

Briefs will be filed under Rule 25 on Issue I only.

In a published decision in United States v. Guardado, 75 M.J. 889, No. 20140014 (A. Ct. Crim. App. Nov. 15, 2016) (link to slip op.), a three-judge panel of the Army CCA dissects CAAF’s blockbuster opinion in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

Reading Hills broadly to state “that propensity evidence may never be used between charged offenses, regardless of how separate and distinct the offenses [are] in time and place,” slip op. at 12 (emphasis added), the CCA nevertheless finds that the use of charged sexual offenses as evidence of the appellant’s propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors.

Judge Wolfe writes for the panel. Senior Judge Mulligan concurs but authors a brief separate opinion that dissents from Judge Wolfe’s broad reading of Hills, concluding instead that “Hills should not be read sweepingly to preclude evidence of other offenses, charged or uncharged, on different victims, at different times and locations.” Slip op. at 30.

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