Earlier this year, we wrote about the
United States v. Hills decision—an impactful United States Court of Appeals for the Armed
Forces determination that prior criminal charges could not be used under
Mil. R. Evid. 413 to prove a defendant's propensity for sexual crimes.
Now, this month, the Army Court of Criminal Appeals has further defined
the application and limits of
United States v. Guardado.
United States v. Guardado
The defendant in this case was an Army Master Sergeant (E-8) accused with
numerous sexual offenses involving children, including his daughter and
niece. Guardado was convicted of numerous offenses (including indecent
liberties with a child and battery of a child under the age of sixteen),
but, in doing so, the trial judge had allowed the prosecution to use prior
charges as evidence against Guardado.
The military judge did this for two reasons: one, so the prosecution could
demonstrate Guardado's specific modus operandi and two, to illustrate
his propensity for sexual assault. Under the Hills decision, which was
broad and far-reaching, both of these reasons could be construed as a
violation of the accused's rights. Guardado appealed the decision
for this reason.
The CCA Decison
Guardado slip opinion, the three-judge CCA panel determined that the prosecution's
presentation of prior cases to demonstrate modus operandi was allowable,
but did note that the propensity reasoning was an error. However, most
interestingly, the judges did not overturn Guardado's convictions—and
they outlined five reasons why they decided not to.
The five reasons are:
- CAAF has previously determined that some propensity arguments are harmless.
- In Hills, the "intertwined nature of the conduct" was "central
to the court’s assessment of prejudice."
- Specification-by-specification, the judges do not find prejudice against
- The judges believe that without the propensity argument, the trial outcome
would have been the same.
- While the judge's instructions were confusing, they were not harmful.
There's another key difference between
Hills, defense counsel submitted a timely objection to the propensity argument.
Guardado's defense counsel raised no objection during his trial when
the propensity argument was being made. When a trial error is flagged
via an objection, it is then the burden of the government to demonstrate
that the error was harmless to the overall argument for the defendant's
Hills, prosecutors failed to meet this burden. In
Guardado, prosecutors were never even required to.
United States v. Guardado is important for a number of reasons. First of all, it re-establishes
just how far-reaching the Hills decision was but—more importantly—does
Hills is not a "magic bullet" argument in these cases. Just because
a prosecutor attempts to violate Mil. R. Evid. 413 and make a propensity
argument, it does not automatically invalidate the entire prosecution
of the accused (as it did in
Hills). The CCA panel affirms that
Hills should be read broadly, but that a larger view of the entire case is needed
to determine if meaningful harm has been inflicted to the accused's rights.
Guardado also stands as one of the countless cases that illustrates how important
it is to have vigilant defense counsel. While the case may not have been
dependent on the timely objection issue, the lack of one from the defense
counsel made the prosecution of Guardado arguably easier than it should
have been—especially in the wake of a groundbreaking ruling like
Joseph L. Jordan, Attorney at Law
is a U.S. Army veteran well-acquainted with military law and culture. He
now travels the globe to defend our accused armed forces members and ensure
that their rights and interests are given the consideration they deserve.
If you've been accused, take action with a dedicated, proven advocate
by your side. Contact our firm today to request a
free case evaluation.