U.S. v. Guardado, 77 M.J. 90

Core Criminal Law Subjects: Crimes: Article 134 - General Article Pre-2019 offenses

1. the preemption doctrine prohibits application of Article 134 to conduct covered by Articles 80 through 132; in other words, the preemption doctrine only prohibits the government from using Article 134, UCMJ, to charge offenses that are listed in the UCMJ outside of Article 134
2. based on the plain language of the President’s guidance in MCM pt. IV, ¶ 60.c.(6)(c), the government may not charge a “novel” offense under Article 134, UCMJ, if the offense is otherwise listed as an Article 134, UCMJ, offense; in other words, if an offense is already listed inside Article 134’s framework, it may not be charged as a “novel” general disorder offense under Article 134, UCMJ
3. where appellant was charged with a “novel” Article 134 general disorder offense that could have been charged as Article 134 indecent language offense, the “novel” offense arising from appellant’s indecent language was barred by MCM pt.IV, ¶ 60.c.(6)(c), and therefore, it failed to state an offense under the UCMJ

Core Criminal Law Subjects: Evidence: Sexual Assault and Child Molestation

1. in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense; the evidence may be considered on any matter to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; the rules do not extend to instances of charged conduct, however, for it is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent; using charged misconduct as MRE 413 evidence is an abuse of discretion; the prohibition against using charged conduct as propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. in a court-martial proceeding for a sexual offense, the military judge may admit evidence that the accused committed any other sexual offense; the evidence may be considered on any matter to which it is relevant; this includes using evidence of either a prior sexual assault conviction or uncharged sexual assaults to prove that an accused has a propensity to commit sexual assault; the rules do not extend to instances of charged conduct, however, for it is antithetical to the presumption of innocence to suggest that conduct of which an accused is presumed innocent may be used to show a propensity to have committed other conduct of which he is presumed innocent; using charged misconduct as MRE 413 evidence is an abuse of discretion; the prohibition against using charged conduct as propensity evidence for other charged conduct in the same case is error, regardless of the forum, the number of victims, or whether the events are connected

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an erroneous propensity instruction was not harmless even though the members acquitted the accused of three of four specifications for which the military judge allowed the erroneous instruction; 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; in this case, 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 committed those other offenses and used that evidence for propensity purposes to convict him of the fourth offense, thus violating appellant’s presumption of innocence; furthermore, in view of the fact that the evidence was not overwhelming on the fourth offense and that there was a lack of supporting evidence for the victim’s testimony, an appellate court could not be assured that the erroneous instruction did not contribute to the verdict and that appellant was convicted on the strength of the evidence alone

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when an accused fails to object to a military judge’s propensity instruction at trial, an appellate court reviews for plain error
2. plain error occurs when: (1) there was error, (2) such error was clear or obvious, and (3) the error materially prejudiced a substantial right of the accused
3. the burden lies with an appellant to establish plain error
4. an appellate court tests unobjected-to instructions for plain error based on the law at the time of appeal

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. instructional errors are reviewed by an appellate court de novo
2. when an accused fails to object to a military judge’s propensity instruction at trial, an appellate court reviews for plain error
3. the burden lies with an appellant to establish plain error
4. an appellate court tests unobjected-to instructions for plain error based on the law at the time of appeal