CAAF will hear oral argument in the Air Force case of United States v. Prasad, No. 19-0412/AF (CAAFlog case page), on Monday, March 16, 2020, at 9:30 a.m. The court granted review of a single issue involving a Hills error:

Whether the Air Force Court erred in its first review of Appellant’s case by affirming the findings of guilt for Specifications 1 and 3 of Charge 1 when it found prejudicial error as a result of a Hills violation.

Airman First Class (E-3) Prasad was convicted of three sexual offenses involving two alleged victims, and the Air Force CCA issued two opinions in the case. In the first opinion (available here), a three-judge panel of the CCA reversed one of the convictions because the military judge improperly instructed the members that they could use charged offenses for propensity purposes (the Hills error). However, two of the three judges found the error harmless with respect to the other two convictions (both involving the same alleged victim). The panel then remanded the case with a rehearing authorized. The convening authority elected to conduct only a sentence rehearing, after which the case returned to the CCA for further review. Upon further review, a slightly different three-judge panel (consisting of two of the original three judges) declined to reconsider the first decision and affirmed the new sentence, in an opinion available here.

The granted issue questions whether the Hills error requires reversal of the remaining convictions. Put differently, if the evidence of guilt supporting those convictions is strong enough then the convictions will be affirmed despite the Hills error.

Prasad’s argument focuses on the standard of review in a situation (like this) involving constitutional error, characterizing “the Government’s case []as anything but overwhelming” and insisting that “but for the improper propensity evidence and erroneous instruction, the panel members, in considering only the evidence related to A1C KF, may have harbored reasonable doubt of Appellant’s guilt and found him not guilty.” App. Br. at 12.

The Government Division responds with the argument that the evidence supporting the affirmed convictions “was overwhelming” because:

In addition to the victim’s credible testimony, Appellant corroborated her version of events through a text message exchange that he had with her. The victim directly confronted Appellant about having “fingered her” even after he heard her say no and Appellant admitted to both hearing her say no and to digitally penetrating her after that expression of non-consent.

Gov’t Div. Br. at 6. The Government Division also argues that propensity evidence used to disprove the existence of mistake of fact as to consent is not improper:

Moreover, for Specifications 1 and 3 of Charge I, the only plausible defense was a mistake of fact defense. Given the text messages between Appellant and KF, the elements of penetration and consent were not in issue. The only real issue in controversy was whether Appellant had an honest and reasonable mistake of fact that KF consented to the sexual act and sexual contact. The panel members could not have considered propensity evidence in an improper way in this particular case. The only way in which they could have realistically considered the evidence of other sexual misconduct was to determine that Appellant had an “absence of mistake” which, in fact, would have been an appropriate, non-propensity use of the evidence. See United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019).

. . . At most, the members would have used evidence of other sexual offenses to discount Appellant’s mistake of fact defense, which is a lawful, nonpropensity use of the evidence. This further diminishes any possibility that erroneous propensity instruction prejudiced Appellant. However, as argued above, the evidence in this case already weighed so strongly against a mistake of fact, that the member did not even need to use to the other charged acts to tip the balance to find Appellant guilty.

Gov’t Div. Br. at 20-21. In Hyppolite (CAAFlog case page), a majority of CAAF found no error in a military judge’s Mil. R. Evid. 404(b) ruling allowing the prosecution to use charged offenses as evidence that the accused acted pursuant to a common plan or scheme.

Prasad replies to the Government’s argument by focusing on the trial counsel’s repeated use of the word propensity in closing argument. The trial counsel’s closing argument included the statement:

it’s propensity evidence. And that’s the lens through which you have to view this entire court. He has a propensity not to stop when someone says, no. Five women told him, no, and he kept going. [] The law realizes that people who engage in sexual offenses may have a propensity to commit that crime again and again and again what is what happened here.

Reply Br. at 5 (quoting record) (modification omission in original). And the statement:

you can consider the fact that he doesn’t listen. That he ignores, no.

Reply Br. at 5 (quoting record). Considering that, Prasad argues:

The trial counsel’s reliance on the word “propensity” belies the Government’s suggestion that this argument was no different than “an appropriate, non-propensity use of the evidence” under Mil. R. Evid. 404(b), pursuant to United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019) (Gov. Br. at 20-21). First, “propensity” is the complete opposite of “non-propensity.” Second, the panel members were not instructed to consider the evidence for an “appropriate, nonpropensity purpose.” Third, this argument reveals the Government’s true motive for using Mil. R. Evid. 404(b) with respect to charged misconduct in sexual assault cases—to admit evidence of and argue “propensity” through the back door of Mil. R. Evid. 404(b) because the front door of Mil. R. Evid. 413 has been firmly and permanently closed. The Government’s argument on this point is a red flag that should cause this Court to reconsider its opinion in Hyppolite.

Reply Br. at 6.

Case Links:
AFCCA opinion
AFCCA opinion after sentence rehearing
Blog post: CAAF grants review
Appellant’s brief
Appellee’s (Gov’t Div.) brief
Appellant’s reply brief
Blog post: Argument preview

6 Responses to “Argument Preview: Reviewing a Hills error for prejudice, in United States v. Prasad”

  1. Vulture says:

    Its hard to argue that you aren’t going for propensity when you march five people across the stage to say that the Accused does some such particular thing.  That’s damn near modis operandi.  Plus, there are a lot of ways to do digital penetration that might get a “no” in preference to something else.
    Kind of like when the Government tries to go in the back door when the Court has told them “no.”

  2. Zachary D Spilman says:

    Modus operandi is only relevant to prove identity. See United States v. Rappaport, 22 M.J. 445, 446 (C.M.A. 1986) (“As there was no question of identity, however, it is doubtful whether evidence of modus operandi was relevant.”). Put differently:

    Where evidence is offered to show modus operandi, there must be a “high degree of similarity between the extrinsic offense and the charged offense.” The similarity must be so great that it is ‘like a signature marking the offense as the handiwork of the accused.

    United States v. Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999) (quoting United States v. Gamble, 27 M.J. 298, 305 (CMA 1988)).

  3. Vulture says:

    Strength of evidence for the point that the Government is trying to make Zach.  For, as you say, the identity of the Prasad isn’t in question.  So what other reason would the Government have to put forward that much propensity evidence:
    1.  except but for to prove propensity
    2.  except but for to say “He never understands ‘no.'”
    3.  except but to overwhelm doubt that this was his signature act?
    I get it.  But if the Government had an overwhelming case, they should have been more discrete.

  4. Vulture says:

    Zach.  Let me try to give you an allegory.  Any person in the engineering field would recognize the absurdity of the quip:
      Measure with micrometer, mark with chalk, cut with ax.
    It doesn’t mean that the final result can’t be to spec.  But the means of achieving it are orders of magnitude off scale.  The way that  evidence of simliarity is being handled, and I think CAAF has asserted this with Hills, is out of tune with the standard of professional diligence.  I say that because the defense argument is that Government is giving the Court a wink.

  5. stewie says:

    Vulture, so certainly part of the problem is a trial counsel labeling it as propensity evidence. It’s not, it’s evidence for OTHER reasons such as motive, opportunity, intent, etc as we all know. Calling it propensity evidence was wrong (and the MJ should have shut that down and corrected that error in real time). It’s not. They should have identified the relevant theory in 404b (which one assumes was in their 404b motion that was successful) and then framed it that way during closing argument.
    That doesn’t mean that if he does in fact have a pattern of doing the same thing in similar enough way that it meets the intent of 404b. I don’t know enough to know if that would have been the case here, but there was probably a way to do it that didn’t involve the TC using the word propensity a bazillion times that would have met the rule.

  6. Vulture says:

    Stewie.  I think you’re right.  It’s a matter of how you ply your craft, I suppose.

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