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 Hills in 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
In the 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 defendant.
- 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 and Guardado: in 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 innocence. In 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 prove that 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 Hills.
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.
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