CAAF decided the Army case of United States v. Guardado, 77 M.J. 90, No. 17-0183/AR (CAAFlog case page) (link to slip op.), on Tuesday, December 12, 2017. Practically ignoring the five factors utilized by the Army CCA to analyze the prejudice from the improper use of charged offenses for propensity purposes under Mil. R. Evid. 413 or 414, the court unanimously reverses the CCA’s opinion that found such improper use to be harmless in this case. The court also finds that two novel 134 specifications fail to state offenses, applying last term’s decision in United States v. Reese, 76 M.J. 297 (C.A.A.F. Jun. 14, 2017) (CAAFlog case page).

Chief Judge Stucky writes for a unanimous court.

CAAF granted review of two issues but requested briefing on only the first:

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 United States v. Guardado, 75 M.J. 889 (A. Ct. Crim. App. Nov. 15, 2016) (analyzed here), a three-judge panel of the 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) (our #3 Military Justice Story of 2016), and found the improper use of charged sexual offenses as evidence of propensity to commit the same charged sexual offenses – in a trial before members – was harmless based on five factors. But those five factors are not explicitly part of CAAF’s decision. Rather, Chief Judge Stucky explains that:

There are circumstances where the evidence is overwhelming, so we can rest assured that an erroneous propensity instruction did not contribute to the verdict by “tipp[ing] the balance in the members’ ultimate determination.” Hills, 75 M.J. at 358.

This is not such a case.

Slip op. at 7.

Chief Judge Stucky’s analysis includes a frank statement of the state of the law:

Given our holdings in Hills and Hukill [CAAFlog case page], the military judge’s M.R.E. 413/414 instruction constituted clear or obvious error under the law as it exists today. The question we must answer is whether this instructional error materially prejudiced Appellant’s substantial rights.

Slip op. at 5-6. Then, while not mentioning the CCA’s five factors, Chief Judge Stucky’s opinion rejects two of them.

One of the CCA’s factors supporting a finding of harmlessness was that Guardado was acquitted of 3 of the 4 specifications used for propensity purposes. The CCA reasoned:

[A]ny harm that came from violating the presumption of innocence in a given specification is extinguished by an acquittal of that same specification.

75 M.J. at 898. Not so, explains Chief Judge Stucky:

We are not convinced that any harm that resulted from allowing propensity evidence from one specification was necessarily extinguished by an acquittal of that same specification. It simply does not follow that because an individual was acquitted of a specification that evidence of that specification was not used as improper propensity evidence and therefore had no effect on the verdict. It is conceivable that the panel found that Appellant committed the other three charged offenses by a preponderance of the evidence but not beyond a reasonable doubt. While not persuaded of Appellant’s guilt to the point of convicting him, members could still have believed that it was more likely than not that Appellant sexually assaulted SW and CH and used that evidence for propensity purposes, thus violating Appellant’s presumption of innocence. Such an outcome is exactly the type of result we sought to guard against in Hills.

Slip op. at 6.

Another of the CCA’s factors was that the propensity instruction was harmless because:

the panel here was specifically instructed that proof of one sexual assault carried no inference that appellant committed any other sexual assaults.

. . . The net effect of the instruction was to follow Mil. R. Evid. 413 (as understood by the judge at the time), but then instruct the panel in a manner that gave it no weight

75 M.J. at 899. Not so, explains Chief Judge Stucky:

As in Hills, the military judge instructed the members as to two different standards of proof that they were required to apply to the same evidence. First, the military judge instructed the members that they could consider evidence of charged offenses for propensity purposes if they determined by a preponderance of the evidence that the alleged offenses occurred. Next, she attempted to clarify the Government’s burden of proof and reminded the panel that Appellant enjoyed a presumption of innocence. However, although she reiterated several times that proof of one sexual assault creates no inference of guilt as to the other sexual assaults, her spillover instruction was qualified and still allowed members to consider Appellant’s “propensity to commit that type of offense.” As in Hills:

[t]he instructions in this case provided the members with directly contradictory statements about the bearing that one charged offense could have on another, one of which required the members to discard the accused’s presumption of innocence, and with two different burdens of proof—preponderance of the evidence and beyond a reasonable doubt.”

75 M.J. at 357. These “muddled … instructions implicate ‘fundamental conceptions of justice’ under the Due Process Clause” and raise “the risk that the members would apply an impermissibly low standard of proof.” Id. As “[t]he juxtaposition of the preponderance of the evidence standard with the proof beyond a reasonable doubt standard with respect to the elements of the same offenses would tax the brain of even a trained lawyer,” Id. at 358, we cannot deny that the potential for confusion among members was high. We simply cannot say “that Appellant’s right to a presumption of innocence and to be convicted only by proof beyond a reasonable doubt was not seriously muddled and compromised by the instructions as a whole.” Id. at 357.

Slip op. at 7.

Chief Judge Stucky then concludes with the observation that even though the CCA found the alleged victim to be credible, “the lack of supporting evidence makes it difficult to be certain that Appellant was convicted of Specification 1 of Charge I on the strength of the evidence alone.” Slip op. at 7. Accordingly, the conviction is set aside and a rehearing is authorized.

Guardado was also convicted of two violations of Article 134 by making sexual comments to minors. The specifications alleged novel offenses; violations of Article 134 not enumerated in the Manual for Courts-Martial. These novel specifications, however, involved facts that could have been charged as violations of the enumerated offense of indecent language, and so must be dismissed:

Here, the gravamen of Appellant’s Article 134 general disorder specifications was the “sexual” nature of his comments. Despite the clear applicability of the President’s listed Article 134 offense, the Government elected not to charge his conduct as such, instead choosing to charge him with two “novel” Article 134 offenses.

Not only is such action barred under pt. IV, ¶ 60.c.(6)(c), but it raises important due process concerns. By using “novel” specifications, the Government relieved itself of the responsibility of proving the second, and arguably most important, element of indecent language—that Appellant’s language rose to the level of indecency. In deleting a vital element, the Government, in effect, improperly reduced its burden of proof. Such an outcome illustrates the reason for the limits of pt. IV, ¶ 60.c.(6)(c), and cannot be countenanced.

As Appellant was charged with “novel” Article 134 offenses that could have been charged as Article 134 indecent language offenses, we hold that the “novel” offenses arising from Appellant’s indecent language were barred by ¶ 60.c.(6)(c) and, therefore, fail to state an offense under the UCMJ. See Reese, 76 M.J. at 302–03.

Slip op. at 9-10.

CAAF remands with a rehearing authorized on the sexual offense and on the sentence (other convictions are affirmed).

CAAF’s resolution of this case leaves open the possibility that a Hills error could be harmless “where the evidence is overwhelming.” Slip op. at 7. But the court strongly implies that such evidence must be more than the testimony of a credible alleged victim; there must also be “supporting evidence.” Id. This is because:

Although it is certainly possible that the members convicted Appellant based solely on the testimony of his accusers, we are not convinced that the erroneous propensity instruction played no role in Appellant’s conviction.

Slip op. at 7-8 (emphasis added).

There are still a number of Hills trailers working their way through the courts of criminal appeals, and findings of harmlessness are not unusual. The Air Force CCA, for example, found such an error to be harmless just six weeks ago, in United States v. Robertson, __ M.J. __, No. 39061 (A.F. Ct. Crim. App. Oct. 30, 2017) (discussed here).

Today’s opinion in Guardado, however, puts such findings of harmlessness in doubt.

Case Links:
• ACCA opinion (75 M.J. 889)
• Blog post: The Army CCA dissects Hills
• Blog post: CAAF to review the Army CCA’s decision in Guardado
• Appellant’s brief
• Appellee’s (Army Gov’t App. Div.) brief
• Appellant’s reply brief
• Blog post: Argument preview
Oral argument audio
CAAF opinion
• Blog post: Opinion analysis

19 Responses to “Opinion Analysis: A Hills error might be harmless, but that requires more actual proof of guilt than is in United States v. Guardado”

  1. A Random JAG says:

    How many times is CAAF going to have to say “Hey, we REALLY meant what we said in Hills”?  Granted we’re going to run out of trailers soon, but still.

  2. Fmr Amn says:

    The Government is trying everything they can do to save face with Hills …… Interesting how CAAF seems to interpret the “law” much different than appeals courts SMH.  

  3. Scott says:

    Reese made the 134 issue easy.  Judge Stucky asked for 30-45 seconds of argument on the issue, which was probably about 15-30 seconds more than was needed.  Sounded like the defense counsel was a bit caught of guard by the question because it wasn’t a briefed issue (and everyone probably knew what the result was going to be), but he addressed it much better in rebuttal. 
    I do think it was important, however, for the court to point out, both in argument and in the opinion, that the impermissibility of using a novel 134 offense when there is an enumerated 134 offense on point, is not technically preemption.  

  4. Buddy says:

    If you have a video or other strong evidence of guilt, a Hills trailer might be “saved.”
    It would probably be better to take the Hills trailers and attempt to retry them sooner rather than later.

  5. stewie says:

    You cannot do it with a mouse, you cannot do it in a house…you cannot do it here or there, you cannot do it anywhere.

  6. Muad'Dib says:

    CAAF’s next Hills opinion will be 20 words long. “Dude, stop. Seriously. Stop using charged conduct as propensity evidence for charged conduct. Stop it. We’re not changing our minds.”

  7. Nathan Freeburg says:

    The CCAs really just want to ignore Hills. I don’t understand this clinging to a broad 413/414 reading by the CCAs and prosecutors. Just prove your case. The rule was intended to catch molesters with prior convictions not up the government’s conviction rate in every 120 case. 

  8. Defense Wizard says:

    ACCA is Homer Simpson in the “Lisa is a Vegetarian” episode, and the pig is every Hills trailer. The scene:
    [At Homer’s barbecue, Lisa steals the pig, using the riding lawnmower to push the grill out of the yard and up a steep slope, while Homer and Bart chase after her. When Lisa gets to the top of the slope, the grill starts rolling downhill, building up speed. Homer and Bart now chase after the grill, while it rolls into a street and through a hedge]Homer: It’s just a little dirty. It’s still good, it’s still good![Homer and Bart keep running after the grill. The grill rolls into traffic (miraculously missing every car) and crashes into a bridge railing. The pig keeps going and ends up splashing into the river.]Homer: It’s just a little slimy. It’s still good, it’s still good![The pig floats downstream to a dam where it gets caught in the spillway, blocking it. Water builds up behind the pig until the pressure pushes the pig the rest of the way through the spillway, blasting it into the sky. Homer and Bart watch from on top of the dam.]Homer: It’s just a little airborne. It’s still good, it’s still good!Bart: [crestfallen] It’s gone.Homer: [even more crestfallen] I know.

  9. Tami a/k/a Princess Leia says:

    Keep in mind the trial counsel in this case was the same trial counsel ACCA and CAAF have had issues with in previous cases, namely a LTC M whose “novel charges” theories were not to be emulated, nor were his arguments about the “true character” of the accused.  This result doesn’t shock me.  And the CCAs are notorious for upholding convictions for sexual assault.

  10. DCGoneGalt says:

    The next time this issue gets appealed from ACCA to AFCCA, Defense Wizard’s Simpsons reference should be verbatim included in the brief.  And in the conclusion to their opinion, CAAF should cite their pre-Hills rulings and end with “It’s gone”.

  11. DCGoneGalt says:

    Dang it, meant gets appealed from ACCA to CAAF . . . not from ACCA to AFCCA.

  12. Veteran says:

    Quite interesting I am looking forward to how CAAF will treat 413s if the government try to use the same charges that the accused was found not guilty to prove propensity at retrials of these set aside Hills trailers. These CCAs are even declaring the accused guilty beyond a reasonable doubt yet still setting aside a conviction. I would like to see a how a motion to dismiss due to unlawful influence by CCAs will fly. 

  13. DCGoneGalt says:

    Veteran:  413 burden < guilt/innocence burden.  NG allegations can come in if they meet the 413 burden, no?  UCI will be interesting on judge-alone and on convening authorities (who would have to be somewhat familiar why the case was being returned to them) but I’m confident the government can find members who don’t scour CAAFLOG and the ACCA website for the latest military appellate opinions.

  14. Veteran says:

    i do not see how a court martial hearing which the accused has already been declared guilty beyond a reasonable doubt will be untainted. Any rational accused including myself will be forced to go members even if judge alone is the best option. It will be interesting to see how such a motion plays out. Am not a lawyer but this doesn’t sound well.

  15. Fmr Amn says:

    I was wondering the same thing! This entire thing is going to get uglier and uglier.  The accused are already guilty before proven innocent now that is multiplied x2 ….. Doesn’t seem very constitutional to me but what do I know I’m just a Fmr Amn waiting on my Hills trailer decision from the appeals court which was a joke in the first place :) 

  16. k fischer says:

    I’ll withhold judgment until C.A.A.F. reviews US v. Hazelblower.  If C.A.A.F. reverses, then I think ACCA will have to summarily reverse any case that uses charged conduct under 413 for propensity evidence.

  17. Fmr Amn says:

    k fischer
    Just finished reading US v. Hazelblower and will leave my personal opinion out and focus on law.  I can see them reversing every charge except the one with admission through text (possibly).  At the end of the day it is still he said she said with the only physical evidence being a couple pre-texts saying he “would” do something.  While yes I agree that could be viewed as strong evidence that he “could” commit the crime, it’s hard to say yes 100% he did commit it beyond reasonable doubt based on evidence (I’m sorry I do not think testimony alone should be enough to convict of a sex offense especially ones of this magnitude) outside of testimony.  I am only speaking on the raping and abusive sexual contact as the fact these girls were underage is sickening in itself and he deserves everything coming to him for that. Going to be very interesting to say the least!!  

  18. k fischer says:

    Fmr Amn, 
    I don’t disagree with you, particularly where the MJ stated that the 413 propensity evidence had little to no effect on his decision to find Hazelblower guilty.  It’s that “little” part that CAAF might have a problem with because using the 413 analysis for charged misconduct is error and if the error had a “little” effect on his decision to find the Accused guilty, then how can CAAF be convinced BARD that the error was harmless.
    But, the facts sound really bad, which I recognize the CCA’s will use the worst possible facts against the accused to affirm a conviction and the best possible facts for the Accused to reverse a conviction.  And, the sentence of 50 years is pretty stiff.

  19. Fmr Amn says:

    k fischer I didn’t see where he got 50 years … stiff indeed! Also, I agree the word “littlemeans to me BARD that propensity evidence played at least a small role in the decision. I’m fairly confident the HUKILL decision wasn’t interpreted you have to prove propensity had “little” to no effect on a decision lol.  Don’t see how the Gov can get around that but then again nothing surprises me anymore with handling of sexual assault in the military justice system.