CAAFlog » October 2018 Term » 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.

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

United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page): Oral argument audio (wma)(mp3)

United States v. Voorhees, No. 18-0372/AF (CAAFlog case page): Oral argument audio (wma)(mp3)

The audio is also available on our oral argument audio podcast.

CAAF will hear oral argument in the Army case of United States v. Tovarchavez, No. 18-0371/AR (CAAFlog case page), on Wednesday, February 20, 2019, at 9:30 a.m. A single granted issue challenges the standard applied by the Army CCA when it affirmed a sexual assault conviction after concluding that the improper use of charged offenses for propensity purposes – a constitutional error identified by CAAF in United States v. Hills, 75 M.J. 350 (C.A.A.F. Jun. 27, 2016) (CAAFlog case page) – was harmless but not harmless beyond a reasonable doubt:

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.

Specialist (E-4) Tovarchavez was charged with 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. 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.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

Because Tovarchavez’s defense counsel didn’t object (and, in fact, affirmatively stated that the defense had no objection) to the improper propensity instruction, the error was forfeited and the plain error test applies. The plain error test penalizes the failure to object by shifting the burden on appeal to the appellant, forcing him to show that there (1) was an error, (2) that is plain or obvious, and (3) that caused material prejudice to a substantial right. But the requirement of material prejudice to a substantial right is not unique to the plain error test in military law; Article 59(a) states that:

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.

Put differently, if a legal error is harmless then a court-martial conviction may not be reversed. How harmless, however, depends on the error. For an ordinary error, mere harmlessness is enough; the error is not prejudicial (and the conviction may not be reversed) “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 is prejudicial unless it is 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.” Hills, 75 M.J. at 357-58 (marks and citations omitted).

A Hills error is constitutional error. Nevertheless, in the CCA’s second opinion in Tovarchavez, a two-judge majority of a three-judge panel of the Army CCA applied the lower standard of mere harmlessness (and not the higher standard of harmlessness beyond a reasonable doubt) to that error, in part because the error was forfeited by the failure to object at trial. The majority found the error harmless and affirmed the conviction, but it also explained that the error was not harmless beyond a reasonable doubt. Accordingly, the outcome of the case hinges on which standard of harmlessness applies.

Tovarchavez’s brief presents two simple propositions: “the Supreme Court[‘s] decision in Chapman v. California . . . established harmless beyond a reasonable doubt as the test for prejudice when constitutional error was not preserved at trial,” and “the Supreme Court also forbade lower courts from departing from the test announced in Chapman in favor of a competing definition of harmless error.” App. Br. at 7. Accordingly, argues Tovarchavez, the applicable standard for harmlessness is harmlessness beyond a reasonable doubt and only the Supreme Court can change that.

The Government Divison’s brief asserts that the law is not so clear.

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On Wednesday CAAF granted review of an Army case questioning the appropriate standard for determining whether a Hills error is harmless:

No. 18-0371/AR. U.S. v. Juventino Tovarchavez. CCA 20150250. 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 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.

Briefs will be filed under Rule 25

Specialist Tovarchavez was charged with 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. 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.

The Army CCA issued two opinions in this case. The first (available here) was issued on September 7, 2017, and found the Hills error to be harmless. But the CCA also ordered a DuBay hearing to consider a claim of ineffective assistance of counsel. After the DuBay hearing, the CCA issued a second opinion (available here) that reconsidered the Hills error, leading to CAAF’s grant.

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