CAAFlog » October 2017 Term » United States v. Williams

Audio of today’s oral argument at CAAF is available at the following link:

United States v. Williams, No. 17-0285/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Williams, No. 17-0285/AR (CAAFlog case page), on Tuesday, January 9, 2018, at 9:30 a.m. The case is before CAAF for the second time and – also for the second time – CAAF will consider the impact of the military judge’s instruction that allowed the members to use one charged sexual offense as evidence of Williams’ propensity to commit another charged sexual offense. Such an instruction was found to be both constitutional error and inconsistent with the military rules of evidence 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).

CAAF will hear argument on a single issue:

Whether the Army Court of Criminal Appeals erroneously found that the propensity instruction given in this case falls within an exception to the holding in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).

In 2013, Sergeant (E-5) Williams was convicted of the rape of his first wife (Charge I) and the forcible sodomy of his second wife (Charge II), by a general court-martial composed of members with enlisted representation. Before trial his defense counsel filed a motion to preclude the prosecution from using the charged offenses as evidence of Williams’ propensity to commit the charged offenses. “[T]he military judge did not make a specific ruling on the motion.” Gov’t Div. Br. at 9. However the military judge functionally denied the motion by giving the members a fairly standard (at the time) instruction that allowed them to use Charge I (rape of the first wife) as evidence of Williams’ propensity to commit Charge II (forcible sodomy of the second wife).

The military judge’s instruction had a certain logic because propensity must exist at the time of the offense to be relevant. Put differently, evidence that Williams assaulted his second wife wasn’t relevant to show his propensity to assault his first wife, because the second came after the first. The argument that he did it before so he’ll do it again only works in one direction. By instructing the members that they could use the first allegation to prove the second allegation, but not instructing that the second could prove the first, the military judge merely acknowledged this temporal reality.

Nevertheless, it was error, for all the reasons explained by CAAF in Hills. But the Army CCA determined that “this case is an exception to Hills.” United States v. Williams, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Jan 12, 2017) (link to slip op.). The CCA reasoned:

Charge I is entirely unaffected by Hills. When deliberating on evidence with regards to the Specification of Charge I, the panel was not allowed to consider propensity. Additionally, with regards to the forcible sodomy specifications contained in Charge II, the only propensity evidence the panel was allowed to consider stemmed from a specification that had been independently proven beyond a reasonable doubt.

Slip op. at 2 (emphasis in original). Next week’s oral argument challenges that determination.

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Last year, before CAAF’s blockbuster decision 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), the Army CCA decided United States v. Williams, 75 M.J. 621 (A. Ct. Crim. App. Feb. 29, 2016) (discussed here).

In Williams the CCA overruled its own 2006 published decision that required certain instructions when propensity evidence was admitted under Mil. R. Evid. 413/414. Those mandatory instructions were problematic in cases where charged offenses were used for propensity purposes (the practice CAAF later prohibited in Hills). The CCA abandoned the instructions in Williams, but did not mandate any particular replacement.

CAAF then granted review in Williams (discussed here) and summarily reversed (discussed here) in light of Hills.

The CCA affirmed the case again, and now it’s headed back to CAAF.

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In the wake of its blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page), CAAF this week summarily remanded three other cases in which it granted review of issues involving the use of propensity evidence in sex cases:

No. 16-0277/AR. U.S. v. William P. Moynihan. CCA 20130855. On further consideration of the granted issue, 75 M.J. 236 (C.A.A.F. 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0369/AR. U.S. v. Arturo A. Tafoya. CCA 20140798. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. May 6, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. On further consideration of the granted issue, 75 M.J. ___ (C.A.A.F. June 22, 2016), it is ordered that the decision of the United States Army Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Army for remand to that court for consideration of the granted issue in light of United States v. Hills, 75 M.J. ___ (C.A.A.F. 2016).

The grant in Moynihan was noted here. The grant in Tafoya was noted here. The grant in Williams was noted here.

Still remaining on CAAF’s docket is the certified Air Force case of United States v. Fetrow, No. 16-0500/AF (certification noted here) (CCA’s decision discussed here).  Fetrow involves propensity evidence used in a child sex case (Mil. R. Evid. 414) that the CCA found was not eligible for use under the rule.

Note: This is a corrected post. The earlier version discussed a different Williams decision by the Army CCA. Thanks to reader C for pointing out my error.

Last week CAAF granted review in the following case:

No. 16-0416/AR. U.S. v. Gene N. Williams. CCA 20130582. 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 issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY GIVING A MILITARY RULE OF EVIDENCE 413 INSTRUCTION TO THE PANEL BECAUSE NO EVIDENCE HAD BEEN ADMITTED BY THE MILITARY JUDGE FOR 413 PURPOSES.

No briefs will be filed under Rule 25.

Mil. R. Evid. 413 is the propensity in sex cases rule addressed in yesterday’s blockbuster decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page).

The Army CCA’s published opinion is available here and I analyzed it in this post. The case involves allegations that the appellant sexually assaulted his ex-wifes, and the prosecution gave notice “of its intent to offer evidence of the offenses against each woman as propensity evidence that appellant committed the charged offenses against the other. That is, the government intended to use evidence that appellant committed each sexual offense against one victim as evidence that appellant committed every other sexual offense against the other victim.” United States v. Williams, 75 M.J. 621, No. 20130582, slip op. at 2 (A. Ct. Crim. App. Feb. 29, 2016). The defense objected and the military judge deferred ruling on the issue.

Later, after both sides rested, the military judge (a different judge from the one who deferred ruling) elected to give the members a propensity instruction.

The Army CCA held that “appellant forfeited any instructional error with regards to M.R.E. 413 by repeatedly failing to object to the military judge’s instructions.” Slip op. at 6. It then found no error in giving the propensity instruction in Williams, but reversed its own precedent regarding the instructions that must be given in such a case because such instructions were unworkable in a case where the charged offenses are also the propensity evidence.

CAAF’s decision in Hills, however, holds that a military judge abuses his discretion when he allows the prosecution to use charged offenses to prove an accused’s propensity to commit the charged offenses, and also that the standard instruction given to members regarding how to handle such propensity undermines the presumption of innocence.

While American law generally prohibits using a person’s bad character to prove them guilty of a criminal offense, Congress created two exceptions (for sexual offenses) with the enactment of Federal Rules of Evidence 413 and 414 in the Violent Crime Control and Law Enforcement Act of 1994, § 320935, 108 Stat. 1796, 2135 (1994). Those Rules were incorporated into the Military Rules of Evidence in 1998. Exec. Order No. 13086, 63 Fed. Reg. 30,065, 30078 (June 2, 1998). But for years those Rules were used to introduce evidence of uncharged acts against an accused, and not to argue that the charged acts themselves were evidence of an accused’s propensity to commit those same alleged acts.

However, the #6 Military Justice Story of 2015 was the use of charged sex offenses as propensity evidence under Mil. R. Evid. 413. Three courts of criminal appeals issued opinions in 2015 approving the use of charged sexual offenses as evidence of an accused’s propensity to commit the charged sexual offenses. United States v. Barnes, 74 M.J. 692 (A. Ct. Crim. App. May 8, 2015) (discussed here), pet. denied, 75 M.J. 27 (C.A.A.F. July 28, 2015); United States v. Bass, 74 M.J. 806 (N-M. Ct. Crim. App. Aug. 18, 2015) (discussed here); United States v. Maliwat, No. 38579 (A.F. Ct. Crim. App. Oct. 19, 2015) (unpub. op) (discussed here), rev. granted, 76 M.J. 128, No. 16-0155/AF (C.A.A.F. Nov. 25, 2015). The Army CCA justified this action in Barnes with the explanation that:

We find no prohibition against or reason to preclude the use of evidence of similar crimes in sexual assault cases in accordance with Mil. R. Evid. 413 due to the fact that the “similar crime” is also a charged offense.

74 M.J. 697-698. This justification faces significant challenges, as CAAF granted review in two Army cases earlier this year involving charged offenses used as propensity evidence under Mil. R. Evid. 413 and 414: United States v. Hills, No. 15-0767/AR (discussed here), and United States v. Moynihan, No. 16-0277/AR (discussed here).

Recently, though, in United States v. Williams, 75 M.J. 621, 20130582 (A. Ct. Crim. App. Feb. 29, 2016) (link to slip op.), the Army CCA reversed its own precedent regarding the instructions that a military judge must give to a panel considering such propensity evidence.

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