Petition for Writ of Certiorari — Burton v. United States (No. 08-1270)

Supreme Coun, U.S

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08 127 0 ppp 1 4 2909

OFFICE OF THE CLEFin

K. Suter, Clerk

In the Supreme Court of the United States

STAFF SERGEANT LINWOOD W. BURTON, JR.,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certitorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

Phillip T. Korman

Captain, U.S. Air Force

Counsel of Record

Air Force Appellate

Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20032

(202) 767-1562

i

QUESTION PRESENTED

Whether Petitioner’s right to Due Process was

violated when the trial judge permitted the triers-

of-fact to consider evidence of a charged sexual

assauit, not offered under Military Rule of

Evidence (Mik. R. Evin.) 413, as propensity

evidence that Petitioner raped a different woman

approximately four years later?

li

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. Traditionally, the common law, concerned

with the risk of unfair prejudice, prohibited

introducing evidence of bad acts to show

propensity

II. In hght of the dangers of unfair prejudice

and spillover when evidence of unrelated

charged conduct is argued to show propensity,

the trial judge violated Petitoner's Due Process

Rights by failing to provide a_ tailored

propensity instruction

CONCLUSION

APPENDIX

lll

TABLE OF AUTHORITIES

Constitutional Provisions

U.S. CONST. amend. V passim

Supreme Court of the United States Cases

Chapman v. California, 386 U.S. 18 (1967)...13

Dowling v. United States, 493 U.S. 342

Michelson v. United States, 335 U.S. 469

(1948)

Montana v. Egelhoff, 518 U.S. 37 (1996)

In re Winship, 397 U.S. 364 (1970)

United States Court of Appeals Cases

United States v. Wright, 53 M.J. 476 (C.A.A.F.

ea en a ke 6

iv

Service Courts of Criminal Appeals

United States v. DaCosta, 63 M.J. 575 (A. Ct.

CO, SN BEN a ics asetdanenes 10-11

United States. v. Myers, 51 M.J. 570 (N.M. Ct.

I, NG I aga ons i sacs snesndiensipievenices 8

Federal Statutes

BT FE Be riiiins chk escedansansnacalkavaneees 1

Oe ahi ick ctscossecm cscs: 1

State and Foreign Cases

Hampden's Trial, 9 How. St. Tr. 1053, 1103

a a 8

Rex v. Doaks, Quincy's Mass. Reports 90

Ce. anne CE EF iii sickcvccacccciccesacscas 8

Miscellaneous Authorities

Fle We Is PERN be xdncdudcdsdavekecaedsends passim

Be IM ic by aicukivcuscackcscscasacesuvaet 6,11

Be Te I ios hance sa vdcinicsesssenrcconbacsecns 6

i ii, wvnaevesyasnscccnceccukesvenbes 6

I Se ic cnceccvacadacovaceusmsaucouas 6,9

Ac I, I Rivic vnso¥ocendensacdcavddcasecneveoennes 6

i Wie IS Moiese scnvseanavcicccntisvccns passim

Ps We ic kas dnd cccncekascceadceesorscc 8,10-11

MANUAL FOR COURTS-MARTIAL, UNITED

STATES, R.C.M. 601(e)(2) discussion (2005)....7

l

The Petitioner, Staff Sergeant Linwood W.

Burton, Jr., respectfully prays that a writ of

certiorari issue to review the order and judgment of

the United States Court of Appeals for the Armed

Forces entered in his case on January 15, 2009.

OPINIONS BELOW

The order of the United States Court of Appeals

for the Armed Forces, United States v. Burton, 67

M.J. 150 (C.A.A.F. 2009) is located at Appendix

(App.) 1a. The order of the United States Air Force

Court of Criminal Appeals, United States v.

Burton, ACM 36296 (2007 CCA Lexis 281 (A.F. Ct.

Crim. 16 July 2007)) (unpub. op.) is located at App.

21a.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces (““CAAF”) was entered

on January 15, 2009. The jurisdiction of this Court

is invoked under 28 U.S.C. § 1259(3) (2000) and 10

U.S.C. § 867a(a) (2000).

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Fifth Amendment of the United States

Constitution states in relevant part:

No person shall be . . . deprived of life, liberty, or

property, without due process of law.

2

FED. R. EVID. 413 and FED. R. EVID. 414 are

located at App. 37a and 38a, respectively.

Mi. R. Evip. 401, MIL. R. EVID. 402, and MIL. R.

EvID. 403 are located at App. 39a. MIL. R. Evin. 404

is located at App. 40a.

MIL. R. EVID. 413 and MIL. R. EVID. 414 are

located at App. 41a and 42a, respectively.

STATEMENT OF THE CASE

On February 9-12, 2005, Petitioner, an active

duty non-commissioned officer in the U.S. Air Force,

was tried at a general court-martial at Yokota Air

Base, Japan, before a panel consisting of officer and

enlisted members. Petitioner was charged with

attempted rape, forcible sodomy, and _ indecent

assault on an adult civilian female, SS, in Venice,

Italy, in September 2000 and with raping Senior

Airman (SrA) DH, an Air Force servicemember, in

Japan in February 2004. At no time before or during

trial did the prosecution provide either Petitioner or

the court with notice of its intent to argue that

evidence of the alleged sexual assault in Italy was

proof that Appellant had a propensity to sexually

assault women in support of its proving the alleged

rape in Japan. The government’s case-in-chief, as to

both charges, relied on the testimony of the two

women.

3

Prior to deliberations on the merits, the military

judge gave the following spill-over instruction:

An Accused may be convicted based only on

the evidence before the court. Each offense

must stand on its own and you must keep the

evidence of each offense separate. Stated

differently, if you find or believe that the

accused is guilty of one offense, you may not

use that finding or belief as a basis for

inferring, assuming, or proving that he

committed any other offense. The burden is on

the prosecution to prove each and every

element of each offense beyond a reasonable

doubt. Proof of one offense carries with it no

inference that the accused is guilty of any

other offense.

Record 360.

During argument, the prosecution told the court-

martial’s members they had “the rare opportunity to

take two allegations of sexual assault ... and lay

them side-by-side and compare them.” Record 363.

The prosecutor urged the members to “take both of

their stories and lay them next to each other and

compare them and see what this particular person’s

M.O. is. How he goes about committing sexual

assault. It will also show you that he has propensity

to engage in this sort of conduct.” Record 374.

4

He continued with the following:

I’ve got a list here. . . . Now, before I get to

them I want to preface-- this was something

the judge told you, I don’t intend for you to

take proof of one offense to find him guilty of

another, the judge told you that you can’t do

that. But what you can do is you can take

these things and compare them for his

propensity to commit these types of offenses.

That’s perfectly acceptable when you're

deliberating.

Record 374-75.

Petitioner’s defense counsel did not object to the

prosecutor’s argument or request the court to

provide a limiting instruction on the prosecution’s

reference to propensity. Nor did the military judge

give such an instruction sua sponte. Petitioner was

acquitted of the attempted rape, forcible sodomy,

and indecent assault of SS but was found guilty of

consensual sodomy and indecent acts with SS. He

was also found guilty of raping DH. Petitioner was

sentenced to a reduction in rank to the grade of E-1,

to forfeiture of all pay and allowances, to eight years

of confinement, and to a dishonorable discharge.

The convening authority dismissed the findings of

guilt as to the consensual sodomy and indecent acts

5

with SS, and reduced the adjudged confinement to

seven years.

The Air Force Court of Criminal Appeals affirmed

Petitioner’s findings and sentence, finding that the

trial counsel’s argument was proper under MIL. R.

EVID. 413. /d. at 31a, 36a. The Court of Appeals for

the Armed Forces granted review. /d., at 2a. That

court also affirmed, but on a different basis, finding

that MIL. R. EVID. 413 was not relevant because the

evidence as to the earlier sexual assault was offered

as primary proof of charged offenses, not under MIL.

R. Evip. 413. /d. at 7a, 10a-lla. The lower court

found that the prosecution’s argument was improper

but did not rise to the level of plain error. /d. at 10a.

Chief Judge Effron concurred in part and in the

result, agreeing that the trial counsel’s argument

was improper and stating that the military judge

should have supplemented his “generic spillover

instruction” with a tailored instruction on the issue

of propensity; however, he found the omission of an

instruction did not rise to the level of plain error. Jd.

at lla, 15a-16a. In a separate opinion, Judge

Erdmann agreed that the prosecution erroneously

argued propensity but concluded that the military

judge committed plain and obvious error when he

failed to give a tailored propensity instruction. /d. at

16a, 19a-20a.

6

REASONS FOR GRANTING THE WRIT

This case presents the question of whether the

introduction of the limited use of propensity evidence

by Federal Rule of Evidence (FED. R. Evip.) 413 and

Mit. R. Eviv. 413 has diminished a defendant’s

longstanding right under the Due Process Clause to

have his trier-of-fact determine his guilt without

resorting to a spillover effect from unrelated charges.

Td. at 37a, 41a. Despite MiL. R. Evin. 404’s

limitations on the introduction of evidence to show

conformity therewith,! relatively recent evidentiary

rules such as MIL. R. EVID. 413 and FED. R. EVID.

413 allow prosecutors to offer (and by extension,

argue) propensity evidence if a trial judge has first

found the proffered evidence relevant and performed

a detailed MIL. R. Evip. 403 balancing test.2 With

this loosening of restrictions against using evidence

to show propensity, this case raises whether the Due

Process Clause provides a defendant protection

against spillover from unrelated charges where the

| MiL. R. EVID. 404 generally excludes admission of a person’s

character or a trait of character for the purpose of proving

action in conformity therewith. App. 40a.

2 Where sexual assault offenses have been charged, MIL. R.

EVID. 413 and its civilian counterpart, FED. R. Evib. 413,

permit the admission of evidence of the accused’s commission of

other sexual assault offenses to show propensity. App. at 37a,

41a. Similarly, MIL. R. Evip. 414 and the parallel FED. R. Evib.

414 permit admission of evidence of similar offenses in child

molestation cases. App. at 38a, 42a. See United States v.

Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)(before admitting

evidence under MIL. R. EVID. 413, the court must find the

evidence relevant under MIL. R. EVID 401 and 402 and perform

a MIL. R. Evip 403 balancing test).

‘

trial court failed to safeguard against unfair

prejudice with a propensity instruction. This

question is relevant to prosecutions in federal court

and especially important to the military justice

system, where, unlike the federal criminal practice,

joinder of offenses is the norm and severance

motions are disfavored. See MANUAL FOR COURTS-

MARTIAL, UNITED STATES, R.C.M. 601(e)(2)

discussion (2005) (commanders are encouraged to

refer all known charges to a_ single court-

martial); United States v. Haye, 29 M.J. 213, 215

(C.M.A. 1989) (noting that severance motions have

been historically frowned upon). This Honorable

Court should, therefore, scttle this timely

constitutional question by granting this petition.

I. Traditionally, the common law, concerned with

the risk of unfair prejudice, prohibited

introducing evidence of bad acts to show

propensity.

This Court has stated that “our primary guide in

determining whether the principle in question is

fundamental is, of course, historical practice.”

Montana v. Egelhoff, 518 U.S. 37, 43 (1996). By this

standard, the traditional ban on prior bad acts to

show propensity demonstrates the common law’s

acknowledgement of the risk of unfair prejudice

inherent in propensity evidence. Traditionally, the

common law has disallowed evidence of a

defendant’s prior wrongful acts to establish a

probability of his guilt. Early American courts

8

retained the English rule of excluding evidence of

prior bad acts as character evidence to show action

in conformity therewith. See McKinney v. Rees, 993

F.2d 1378, 1380-81 (9th Cir. 1993) (citing Hampden’s

Trial, 9 How. St. Tr. 1053, 1103 (K.B. 1684) and Rex

v. Doaks, Quincy’s Mass. Reports 90 (Mass. Super.

Ct. 1763)).

Regarding propensity evidence, this Court noted

that “the inquiry is not rejected because character is

irrelevant; on the contrary, it is said to weigh too

much with the jury and to so overpersuade them as

to prejudge one with a bad general record and deny

[a defendant] a fair opportunity to defend against a

particular charge.” Michelson v. United States, 335

U.S. 469, 475-76 (1948).

Moreover, where unrelated offenses are charged

at one trial, as is the usual practice in the military,

the “possibility is very real that juries will use the

evidence of one of the crimes charged to infer a

criminal disposition on the part of the accused in

regard to other crime(s) charged.” United States. v.

Myers, 51 M.J. 570, 579 (N.M. Ct. Crim. App. 1999).

Given the powerful nature of propensity evidence,

the Military Rules of Evidence permit evidence of

other prior wrongful acts to show propensity in the

very limited circumstances provided by MIL. R. EVID.

413 and MIL. R. EvID. 414 involving charged sexual

assault and child molestation cases, respectively.

9

Even then, courts have required certain safeguards,

such as a MIL. R. Evip 403 balancing test, to protect

defendants from the dangers of unfair prejudice

inherent to propensity evidence.

II. In light of the dangers of unfair prejudice and

spillover when evidence of unrelated charged

conduct is argued to show propensity, the trial

judge violated Petitoner's Due Process Rights by

failing to provide aé_ tailored propensity

instruction.

All five of the judges at the Court of Appeals for

the Armed Forces agreed that the trial counsel’s

propensity argument was improper. The military

judge’s failure to instruct the panel to disregard that

portion of the trial counsel’s argument or that the

panel could not consider proof of unrelated charges

as propensity evidence left the panel believing that

during deliberations, they could indeed consider

evidence from the charges originating in Italy in

2000 as proof that Petitioner had the propensity to

rape a female servicemember in Japan almost four

years later. Moreover, the judge gave the panel no

guidance on how to consider the prosecutor’s

propensity argument or its conflict with the judge’s

spillover instruction.

10

A. Where a propensity argument is appropniate

under MIL. R. Evibp. 413, courts have imposed

a sua sponte duty to instruct members

regarding the consideration of propensity

evidence.

Even where evidence of other sexual assaults is

properly admitted under MIL. R. EVID. 413 to show

propensity to commit a charged sexual assault,

military courts have recognized the imperative of

appropriate propensity instructions. For example,

the United States Army Court of Criminal Appeals

has ruled that trial judges have a hmited sua sponte

duty to provide members guidance where evidence of

other sexual assaults is admitted under MIL. R.

Evid. 413 to show propensity to commit a charged

sexual assault. United States v. DaCosta, 63 M.J.

575, 582-83 (A. Ct. Crim. App. 2006) (“we place a

limited sua sponte duty on military judges when

Mii. R. Evip. 413 evidence is admitted. Without

guidance regarding the proper use of 413 evidence of

other sexual assaults, panel members would be left

to guess how that evidence should impact their

decision... .”).

Moreover, the Court of Appeals for the Armed

Forces (““CAAF”) has acknowledged that procedural

safeguards under MIL. R. EviID. 413 require “proper

instructions.” United States v. Schroder, 65 M.J. 49,

55 (C.A.A.F. 2007). That court held that where the

members are instructed that MIL. R. EVID. 414

evidence may be considered for an _ accused’s

propensity to commit the charged child molestation

11

offense, the panel “must also be instructed that the

introduction of such propensity evidence does not

relieve the government of its burden of proving every

element of every offense charged” and that the fact-

finder “may not convict on the basis of propensity

evidence alone.”® Schroder, 65 M.J. at 56.

Although the prosecutor did not introduce

evidence of the sexual assault offense against SS

under MIL. R. EVID. 413, he, nonetheless, argued

that evidence of other sexual assault offenses

against SS showed Petitioner had a propensity to

commit the charged sexual assault of DH. In

accordance with Schroeder and DaCosta, the trial

judge should have sua sponte instructed on

propensity. Even though Petitioner’s trial defense

counsel did not request a propensity instruction, the

trial judge, who is more than a mere referee and is

required to assure that the accused receives a fair

trial, must bear the primary responsibility for

ensuring that the jury was properly instructed.

United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975).

Both Chief Judge Effron and Judge “rdmann

recognized that the prosecutors propensity

3 MiL. R. Evid. 414, like MIL. R. EVID. 413, permits the

introduction of evidence of similar offenses to show propensity

to commit a charged offense. Specifically, where an accused is

charged with an offense of child molestation, MIL. R. Evib. 414

allows evidence of the accused’s commission of other offenses of

child molestation to be admitted to show propensity. App. at

42a. MIL. R. Evib. 414 also has a civilian counterpart, FED. R.

EVID. 414, which permits the admission of propensity evidence.

App. 38a.

12

argument undercut the spillover instruction. App. at

14a-15a, 18a. The generic spillover instruction,

which was provided to the members before the trial

counsel’s argument, did not compensate for this

shortcoming because the panel members were left

with an erroneous statement of the law by the

prosecution.

B. In light of the _ prosecutor’s improper

propensity argument, the trial judge’s failure

to sua sponte instruct on propensity violated

Petitioner’s Due Process rights.

To ensure that the prosecution was held to its

proper burden of proof for the charged rape of DH,

the trial judge should have given sua sponte a

propensity instruction when the prosecutor told the

members they could use evidence of an unrelated

charged offense to prove Petitioner’s propensity to

rape DH. As this Court noted, “Lest there remain

any doubt about the constitutional stature of the

reasonable doubt standard, we explicitly hold that

the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable

doubt of every fact necessary to constitute the crime

with which he is charged.” J/n re Winship, 397 U.S.

358, 364 (1970).

A trial judge’s failure to sua sponte give a tailored

propensity instruction where an unrelated charge

was improperly argued to show propensity

unacceptably increased the likelihood the members

convicted Petitioner of raping DH on a lesser

13

standard then direct evidence of each element of the

charged rape beyond a reasonable doubt. As Judge

Erdmann noted, the members lacked guidelines on

reconciling the conflict between the military judge’s

instruction and the prosecutor’s argument that the

instruction could be ignored. App. at 19a. Under

these circumstances with risks of spillover from the

joinder of offenses and unfair prejudice from an

improper propensity argument, the judge’s failure to

sua sponte give a propensity instruction violated

Petitioner’s Due Process rights.

Once it is determined that a specific instruction is

required but not given, the test for determining

whether this constitutional error was harmless is

whether it appears “beyond a reasonable doubt that

the error complained of did not contribute to the

verdict obtained.” Chapman v. California, 386 U.S.

18, 24, (1967). Since the trial judge did not give the

members any guidance on the prosecutor’s argument

to consider propensity, there is no confidence that

Petitioner was convicted on direct evidence of the

charged rape beyond a reasonable doubt rather than

from unfair prejudice or on another inappropriate

basis. The trial judge’s failure to provide sua sponte

a propensity instruction was plain, obvious, and

constitutional error.

In finding that there was no plain error, CAAF

did not adequately appreciate the underlying

dangers of unfair prejudice and spillover from

joinder of offenses which preexisted the trial judge’s

error. The generic spillover instruction did not cure

this prejudicial environment, which formed the

14

context of this trial. Once the prosecutor made an

improper propensity argument and _ statements

conflicting with the judge’s spillover instruction, the

trial judge’s failure to sua sponte instruct the

members on propensity irretrievably tipped the

balance, offending the “fundamental conceptions of

justice which lie at the base of our civil and political

institutions.” Dowling v. United States, 493 U.S.

342, 353 (1990). CAAF’s ruling was, therefore,

erroneous.

CONCLUSION

The Court of Appeals for the Armed Forces erred

when it concluded that the trial judge’s failure to sua

sponte instruct on propensity did not constitute

plain error where the prosecutor had argued

propensity. This Court’s issuance of a writ of

certiorari will restore a defendant’s long-standing

right under the Due Process Clause to have his trier-

of-fact determine his guilt without resorting to a

spillover effect from unrelated charges. This issue is

particularly significant to the military justice

system, but is relevant to other federal courts as

well. For the foregoing reasons, Petitioner

respectfully requests that this Honorable Court

grant his petition for a writ of certiorari.

Respectfully submitted,

PHILLIP T. KORMAN

Captain, U.S. Air Force

Counsel of Record

AF Legal Operations Agency

Appellate Defense Division

112 Luke Ave, Ste 343

Bolling AFB, DC 20332-8000

(202) 767-15€2

Counsel for Petitioner

la

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES

UNITED STATES, Appellee

Vv.

Linwood W. BURTON Jr., Staff Sergeant,

U.S. Air Force, Appellant

No. 07-0848

67 M.J. 150

October 15, 2008, Argued

January 15, 2009, Decided

RYAN, J., delivered the opinion of the Court, in

which BAKER and STUCKY, JJ., joined. EFFRON,

C.J., filed a separate opinion concurring in part and

in the result. ERDMANN, J., filed a separate opinion

concurring in part and dissenting in part.

OPINION BY: RYAN

Judge RYAN delivered the opinion of the Court.

At different points during the closing argument

2a

on findings in this case, the trial counsel suggested

that the members of the panel could compare the

similarities between charged offenses for a

propensity to commit "these types of offenses" and

see the accused's modus operandi. Although the

charged offenses were themselves the proper subject

of closing argument, the underlying conduct had not

been offered or admitted under Military Rules of

Evidence (M.R.E) 404 or 413. Trial counsel's

invitation to the panel to compare the charged

offenses to find modus operandi or propensity was

improper, but under the facts of this case the

military judge's failure tO sua sponte instruct the

panel on the use of propensity evidence or take other

remedial action did not constitute plain error. The

decision of the United States Air Force Court of

Criminal Appeals (CCA) is affirmed.?

‘1 On Appellant’s petition, we granted review of the

following issues:

I. WHETHER THE TRIAL COUNSEL ENGAGED IN

IMPROPER ARGUMENT WHEN HE ARGUED THAT

APPELLANT DEMONSTRATED A PROPENSITY TO

ENGAGE IN SEXUAL ASSAULT.

II. ASSUMING, ARGUENDO, THAT IT WAS NOT

IMPROPER FOR TRIAL COUNSEL TO ARGUE THAT

APPELLANT HAD THE PROPENSITY TO COMMIT

SEXUAL ASSAULTS, WHETHER THE MILITARY

JUDGE ERRED BY FAILING TO GIVE AN ADDITIONAL

INSTRUCTION ON THE USE OF PROPENSITY

EVIDENCE.

3a

I. Facts

A general court-martial composed of officer and

enlisted members convicted Appellant, contrary to

his pleas, of rape, sodomy,? and indecent acts,’ in

violation of Articles 120, 125, and 134, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. §§ 920, 925,

934 (2000). The sentence adjudged by the court-

martial included a_— dishonorable’ discharge,

confinement for eight years, forfeiture of all pay and

allowances, and reduction to the lowest enlisted

grade. The convening authority disapproved the

findings of guilt as to sodomy and indecent acts,

approved the findings of guilt as to rape, and

approved the sentence as adjudged with the

exception of confinement in excess of seven years.

The CCA affirmed. Vnited States v. Burton, No.

ACM 36296, 2007 CCA LEXIS 281 (A.F. Ct. Crim.

App. July 16, 2007)(unpublished).

Appellant's convictions arose from two distinct

incidents, which were separated by several years.

The Government charged Appellant with the forcible

sodomy, indecent assault, and attempted rape of SS,

a U.S. civilian he met while on leave in Venice, Italy,

in 2000.4 In addition, the Government charged

2 Appellant was charged with forcible sodomy in violation of

Article 125, UCMJ, but found guilty of the lesser included

offense of sodomy.

3 Appellant was charged with indecent assault in violation of

Article 134, UCMd, but found guilty of the lesser included

offense of indecent acts.

4 Appellant was found not guilty of the attempted rape charge.

4a

Appellant with the rape of Senior Airman DH, while

both were stationed at Yokota Airbase, Japan, in

2004.

As is customary in the military justice system,

the convening authority referred all of the charges

related to these incidents to one court-martial. See

Rule for Courts-Martial (R.C.M.) 307(c)(4); United

States v. Weymouth, 43 M.J. 329, 335 (C.A.A.F.

1995) (recognizing the general policy of joining all

possible charges into a single court-martial).

Appellant did not move to have the charges severed.

See R.C.M. 906(b)(10) (allowing a motion to sever

offenses to prevent manifest injustice). Following the

presentation of evidence by the prosecution and

defense, the military judge instructed the panel,

warning that counsel's closing arguments were not

evidence and that belief of guilt of one offense could

not be used as a basis for finding guilt of another

offense -- a_ standard "spillover" instruction.

In the closing arguments that followed, the trial

counsel noted the military judge's instruction that

panel members could not use guilt of one offense as

proof of guilt of another offense. However, trial

counsel told the panel it could "take these things and

compare them for [Appellant's] propensity to commit

these types of offenses." He invited the panel to "take

both of [the victims'] stories and lay them next to

each other and compare them and see what this

particular person's M.O. is." Further, trial counsel

highlighted several similarities from the two

incidents, including Appellant's particular actions

and the victims' physical appearance’ and

5a

vulnerability. Defense counsel neither objected to

trial counsel's statements nor requested further

instructions from the military judge.

II. Discussion

When no objection is made during the trial, a

counsel's arguments are reviewed for plain crror.

United States v. Schroder, 65 M.J. 49, 57-58

(C.A.A.F. 2007). "Plain error occurs when (1) there is

error, (2) the error is plain or obvious, and (3) the

error results in material prejudice." United States v.

Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005). We agree

with Appellant that trial counsel's closing argument

was improper, but disagree that the error was plain

and obvious such that the military judge was

required to sua sponte give further instructions or

take other remedial measures.

Counsel should limit their arguments to "the

evidence of record, as well as alj reasonable

inferences fairly derived from such evidence." United

States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000). In

the instant case, evidence of the charged offenses

was properly admitted and a fair subject of

argument. The wrinkle is that trial counsel went

further and encouraged panel members to compare

the similarities of two charged offenses, pointed out

several specific cxamples, and argued that these

similarities showed Appellant's propensity to commit

such crimes.

6a

Our cases affirm the principle that an accused

may not be convicted of a crime based on a general

criminal disposition. See, e.g., United States v.

Hogan, 20 M.J. 71, 73 (C.M.A. 1985) ("[A]n accused

must be convicted based on evidence of the crime

before the court, not on evidence of a general

criminal disposition."); see also M.R.E. 404(a), (b)

(generally prohibiting the use of evidence of

character or past crimes to prove an accused acted in

conformity therewith). The Government may not

introduce similarities between a charged offense and

prior conduct, whether charged or uncharged, to

show modus operandi or propensity without using a

specific exception within our rules of evidence, such

as M.R.E. 404 or 413.5 See United States v. Wright,

53 M.J. 476, 480 (C.A.A.F. 2000) (noting M.R.E. 413

"creates an exception to Rule 404(b)'s general

prohibition against the use of a _ defendant's

propensity to commit crimes"). It follows, therefore,

that portions of a closing argument encouraging a

panel to focus on such similarities to show modus

operandi and propensity, when made outside the

ambit of these exceptions, is not a "reasonable

inference[ } fairly derived" from the evidence, and

was improper argument. Baer, 53 M.J. at 237.

The CCA held that trial counsel's argument was

proper based on M.R.E. 413. The CCA noted that the

5 See, eg., M.R.E. 404(a)(1), (2) (allowing character evidence

when offered first by the accused); M.R.E. 404(b) (allowing

evidence of other crimes to show motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake);

M.R.E. 413 (allowing evidence of prior sexual assaults when

the accused is charged with a sexual assault offense).

fa

evidence of Appellant's alleged assaults and

attempted rape of SS in 2000, as sexual assault

offenses that occurred prior to the 2C04 rape of SrA

DH, could have been introduced as_ propensity

evidence under M.R.E. 413. Burton, No. 36296, 2007

CCA LEXIS at 13.

The problem with the CCA's holding is simple --

this is not an M.R.E. 4138 case. The evidence on

which trial counsel was commenting was primary

proof of the charged offenses. No evidence was

introduced as propensity evidence pursuant to

M.R.E. 413, and none of the procedural safeguards

required as a predicate to such introduction were

followed. See Schroder, 65 M.J. at 55 (requiring the

military judge to make relevance and prejudice

determinations under M.R.E. 401, 402, and 403

before admitting propensity evidence); Wright, 53

M.J. at 482-83 (same). It was trial counsel's

improper argument that introduced the issue of

propensity, not the evidence. As the Government did

not offer the evidence under M.R.E. 413, it did not

follow the steps required by M.R.E. 413. Therefore, it

may not a posteriori justify its closing argument

based on what it might have done.

Determining that trial counsel's argument was

improper, however, does not answer the question

whether it was plain and obvious in the context of

the entire trial that the military judge needed to sua

sponte give further instructions on the use of

propensity evidence. See United States v. Young, 470

U.S. 1, 16, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)

("(Wlhen addressing plain error, a reviewing court

8a

cannot properly evaluate a case except by viewing

such a claim against the entire record."). An error is

not "plain and obvious" if, in the context of the entire

trial, the accused fails to show the military judge

should be "faulted for taking no action" even without

an objection. United States v. Maynard, 66 M.J. 242,

245 (C.A.A.F. 2008). The relevant context includes

the evidence presented at trial and the instructions

given by the military judge. See Darden v.

Wainwright, 477 U.S. 168, 182, 106 S. Ct. 2464, 91

L. Ed. 2d 144 (1986).

It was not plain and obvious under the facts of

this case that the military judge should have sua

sponte given a propensity instruction, as Appellant

now contends. First, as noted above, the evidence of

each distinct offense was properly admitted and the

fair subject of argument, but this was not an M.R.E.

413 propensity evidence case. The prosecution did

not attempt to offer evidence or get a ruling from the

military judge under M.R.E. 413. concerning

propensity evidence. Moreover, the "similar" conduct

was charged and presented as two separate offenses:

the majority of the evidence introduced by the

prosecution consisted of the testimony of two

independent victims, and at no time during the

presentation of the evidence did the prosecution

compare the two charges or conflate the evidence. Cf

United States v. Haye, 29 M.J. 213, 214-15 (C.M.A.

1989) (finding error where the factual presentation

of the case made it impossible for a panel to separate

one specification from another). Appellant has made

no suggestion that the evidence of each charge was

9a

"so merged into one that it [was] difficult to

distinguish." /d. at 215.

Next, after the close of the presentation of

evidence, the military judge specifically instructed

the panel as follows:

An Accused may be convicted based only on

evidence before the court. Each offense must

stand on its own and you must keep the

evidence of each offense separate. Stated

differently, if you find or believe that the

accused is guilty of one offense, you may not

use that finding or belief as a basis for

inferring, assuming, or proving that he

committed any other offense. The burden is on

the prosecution to prove each and every

element of each offense beyond a reasonable

doubt. Proof of one offense carries with it no

inference that the accused is guilty of any

other offense.

Although portions of trial counsel's closing

argument arguably conflicted with this instruction,

trial counsel specifically referenced the instruction

and stated he did not "intend for [the panel] to take

proof of one offense to find [Appellant] guilty of

another." The real risk presented by trial counsel's

improper argument was that it would invite

members to convict appellant based on a criminal

predisposition, not that members would now

perceive properly admitted direct evidence of

charged conduct as propensity evidence. This greater

10a

risk was properly addressed by the military judge's

spillover instruction. The military judge having

instructed the panel that counsel's arguments were

not evidence and = given a_= general _ spillover

instruction, it was not plain and obvious that an

additional instruction was wanted or needed. See

United States v. Jenkins, 54 M.J. 12, 20 (C.A.A.F.

2000) (noting that panel members are presumed to

follow a military judge's instructions and holding

that any error from improper argument was cured

by appropriate instruction); Hogan, 20 M.J. at 73

(suggesting that a clear instruction not to merge

evidence substantially diminishes the chance of

improper spillover).

In the context of the entire trial, including the

distinct and clearly defined evidence against

Appellant on similar yet separate offenses, the

specific instructions to the panel, the fact that

neither trial nor defense counsel offered M.R.E. 413

propensity evidence or requested a _prepensity

instruction, and the fact that the comments of trial

counsel were not so egregious as to provoke an

objection by trial defense counsel, we do not believe

that any error in trial counsel's argument rose to the

level of plain error that would require the military

judge to sua sponte instruct on the proper use of

propensity evidence or take other’ remedial

measures. See Young, 470 U.S. at 16, 20, 105 S.Ct.

1038 (noting "it is particularly important for

appellate courts to relive the whole trial

imaginatively and not to extract from episodes in

isolation," and holding that argument by counsel,

lla

though improper, was not plain error warranting

overturning the appellant's conviction).

III. Conclusion

For the reasons expressed above, we disagree

with the reasoning of the Air Force Court of

Criminal Appeals, but find no plain error in the

court-martial. The decision of the Air Force Court of

Criminal Appeals is affirmed.

EFFRON, Chief Judge (concurring in part and in

the result):

I agree with the majority opinion that trial

counsel erred in urging the members to consider the

two charged offenses as propensity evidence. For the

reasons set forth below, I would conclude that the

generic spillover instruction given by the military

judge should have been supplemented by a tailored

instruction on the issue of propensity. I agree that

this case may be affirmed because the instructional

error was not prejudicial under Article 59(a), 10

U.S.C. § 859(a) (2000).

The prosecution's improper propensity argument

Appellant’s court-martial involved two distinct

allegations of sexual misconduct -- the first charged

as occurring in 2000 and the second charged as

occurring in 2004. The prosecution introduced

evidence related to each incident at the court-

12a

martial, and the admissibility of such evidence is not

the subject of the present appeal.

The issues on appesx. pertain.to the comments

made in trial counsel’s closing argument, in which

counsel asked the court-martial panel to “compare”

the different charges for the purpose of assessing

Appellant’s “propensity to commit these types of

offenses” and his modus operandi. As noted in the

majority opinion, the prosecution may not ask the

panel to conclude that an accused is guilty of one

offense by citing similarities to another distinct

offense unless: (1) the argument involves permissible

use of the evidence, such as under an exception

provided by Military Rule of Evidence (M.R.E.) 404

(“Character evidence not admissible to prove

conduct; exceptions; other crimes”) ur M.R.E. 413

(“Evidence of similar crimes in sexual assault

cases”); and (2) the military judge has analyzed and

approved the use of the evidence in that manner

under the applicable safeguards. United States v.

Burton, 67 M.J. at 152-53 (C.A.A.F. 2009).

In the Court of Criminal Appeals, Appellant

contended that trial counsel improperly asked the

court-martial panel to view the distinct offenses as

evidence of Appellant’s propensity to engage in

sexual assault. After noting that the defense had not

objected to the prosecution’s argument at trial, the

Court of Criminal Appeals reviewed the contention

under a plain error standard. See United States v.

Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998) (holding

that plain error review entails consideration of: (1)

whether there was error; (2) whether the error was

13a

plain or obvious; and (3) whether the error

materially prejudiced the substantial rights of the

accused); Article 59(a), 10 U.S.C. § 859(a) (2000).

The Court of Criminal Appeals concluded that

there was no error because the use of propensity

evidence is permissible under M.R.E. 413 in a sexual

assault case. As noted in the majority opinion, one

problem with rehance on M.R.E. 413 in this case is

that the prosecution at trial did not follow the

required steps for use of propensity evidence under

M.R.E. 413. Burton, 67 M.J. at 153. Of particular

note, the prosecution offered its propensity argument

before the military judge could make the requisite

determinations as to relevance and prejudice under

M.R.E. 401, M.R.E. 402, and M.R.E. 403. See

Burton, 67 M.J. at 153. A further problem is that

even if the evidence had been properly approved as

propensity evidence, the military judge did not

provide the panel with an appropriate limiting

instruction tailored to the issue of propensity. See

United States v. Schroder, 65 M.J. 49, 56 (C.A.A.F.

2007).

The majority opinion concludes that tnial

counsel’s error did not meet the second prong of the

plain error test because, in the context of the full

trial, it was not plain or obvious that the military

judge should have given a propensity instruction.

See Burton, 67 M.J. at 153. In that regard, the

majority opinion notes that the evidence at issue was

admitted properly on the distinct offenses, the

prosecution did not conflate the separate offenses

during the factual presextation of the evidence, the

14a

evidence was not offered as propensity evidence

under M.R.E. 413, and the military judge provided

the members with an _ appropriate _ spillover

instruction. Jd. at 153-54. Although these

considerations bear on the third aspect of the plain

error test -- whether any error by the military judge

materially prejudiced the substantial rights of the

accused -- they are not determinative on the question

of whether the military judge properly instructed the

members in this case.

The prosecution improperly argued that although

the members could not “take proof of one offense to

find [Appellant] guilty of another,” they could “take

these [charges] and compare them for his propensity

to commit these types of offenses.” Without a ruling

by the military judge on relevance and prejudice

under M.R.E. 401, M.R.E. 402, and M.R.E. 403, trial

counsel’s propensity argument was not permissible

under M.R.E. 413, either directly or by analogy.

Moreover, the propensity argument did not fit into

any of the exceptions for character evidence under

M.R.E. 404.

Trial counsel’s argument not only raised the

subject of propensity without the appropriate

predicate ruling by the military judge, but also

placed the import of the military judge’s spillover

instruction at issue by suggesting that the spillover

instruction did not apply to propensity evidence.

Irrespective of whether the propensity argument was

permissible under M.R.E. 413 or impermissible

under M.R.E. 404, the military judge was required to

15a

give an appropriate tailored instruction expressly

addressing the subject of propensity. See Schroder,

65 M.J. at 56 (stating, in a case where evidence could

be used to show propensity under the parallel

propensity provisions of M.R.E. 414, that the court-

martial panel “must also be instructed that the

introduction of such propensity evidence does not

relieve the government of its burden of proving every

element of every offense charged” and that “the fact

finder may not convict on the basis of propensity

evidence alone”); United States v. Levitt, 35 M.J.

114, 120 (C.M.A. 1992) (stating, in a case where the

evidence could not be used to show propensity, that

“the instruction must expressly bar use of the

evidence for improper purposes, including proof of

bad character or propensity for crime”). In the

present case, the military judge’s generic spillover

instruction did not relieve him of the responsibility

to provide a specific instruction expressly tailored to

the subject of propensity.

Prejudice under the plain error standard

Notwithstanding these errors, plain or otherwise,

relief is not warranted under the third prong of the

plain error test because the errors did not materially

prejudice the substantial rights of Appellant.

Although the mihtary judge should have

supplemented the standard spillover instruction

with a _ specific instruction on propensity, the

standard instruction provided the panel with some

guidance on the impermissibility of using one

charged offense as the basis for a finding of guilt on

16a

the other charged offense. Likewise, trial counsel

limited the potential effect of the improper argument

by explicitly reminding the members that they could

not use their determination of guilt on one offense to

find guilt on the other. Finally, the context of the

trial and the accumulation of distinct and clearly

defined evidence of the crimes committed against

Senior Airman DH, combined with the lack of

defense objection to trial counsel’s arguments and

the members’ finding that Appellant committed only

consensual acts with SS, indicate that the improper

statements of trial counsel did not have a significant

impact on the members. Accordingly, I agree that

the findings and sentence may be affirmed.

ERDMANN, Judge (concurring in part and

dissenting in part):

I agree with the majority that trial counsel

erroneously invited the members to compare the

evidence presented on each offense to find

propensity. Had the trial counsel desired to make

that argument, he should have followed the

procedural steps of Military Rule of Evidence

(M.R.E.) 413(b). Had those procedural steps been

followed, the military judge would have made the

necessary threshold findings under M.R.E. 413! and

1 Those required findings are that: “(1) [t]he accused is charged

with an offense of sexual assault” defined by M.R.E. 413(d); (2)

“[tlhe evidence proffered is ‘evidence of the defendant’s

commission of another offense of .. . sexual assault’; and (3)

[tlhe evidence is relevant under [M.R.E.] 401 and [M.R.E.]

402.” United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000)

(quoting United States v. Guardia, 135 F.3d 1326, 1328 (10th

17a

would have conducted an M.R.E. 403 balancing

analysis. Because trial counsel did not comply with

the steps for presenting or arguing propensity

evidence, the military judge did not evaluate the

evidence for admissibility as propensity evidence.

Therefore, trial counsel erred by invoking propensity

in his argument. I do not agree that the risks created

by the improper argument were properly addressed

by the spillover instruction. However, I need not

determine whether trial counsel’s error was a plain

error requiring relief because I conclude that the

military judge committed plain error by failing to

provide a propensity instruction to the members.

Before closing arguments, the military judge’s

instructions to the members included a standard

“spillover” instruction. Specifically, the military

judge stated, “{Ilf you find or believe that the

accused is guilty of one offense, you may not use that

finding or belief as a basis for inferring, assuming, or

proving that he committed any other offense.”

Despite this instruction, trial counsel urged the

members in his closing argument to compare the

offenses because “[i]t will also show you that he has

[the] propensity to engage in this sort of conduct.”

(emphasis added). Trial counsel went on to urge that

consideration of this propensity evidence would not

conflict with the military judge’s spillover

instruction:

Cir. 1998) (requiring threshold findings before admitting

evidence under M.R.E. 413); see also United States v. Dewrell,

55 M.J. 131, 138 n.4 (C.A.A.F. 2001).

18a

Now, before I get to la comparison of the

similarities between the two alleged sexual

assaults] I want to preface—- this was

something the judge told you, I don’t intend for

you to take proof of one offense to find him

guilty of another, the judge told you that you

can’t do that. But what you can do is you can

take these things and compare them for his

propensity to commit these types of offenses.

That’s perfectly acceptable when _ you're

deliberating.

Emphasis added.

Not only was trial counscel’s invitation to compare

the offenses for propensity in direct conflict with the

spillover instruction given by the military judge, he

erroneously explained to the members that they

could consider the propensity evidence despite the

spillover instruction. The military judge should have

corrected that conflict sua sponte by providing a

propensity instruction.

Propensity evidence may be considered by the

members to prove a charged substantive offense of

sexual assault when the procedures of M.R.E. 413

have been followed. See United States v. Schroder,

65 M.J. 49, 52 (C.A.A.F. 2007). However, even when

the procedures of M.R.E. 413 have been complied

with, this court has further held that the procedural

safeguards “required to protect the accused from

unconstitutional application of M.R.E. 413

19a

include the requirement of proper instructions.” Jd.

at 55.

Without deciding whether the trial counsel’s

propensity argument constituted plain error, absent

an instruction as to the proper consideration of

propensity evidence, the members had no guidelines

as to how to resolve the conflict between the military

judge’s instruction and trial counsel’s argument that

the instruction could be ignored in this situation.?

The propensity instruction was necessary to prevent

the members from convicting Burton on the basis of

other than direct evidence of the charged offense and

to preclude “relievling] the government of its

constitutional burden to prove every element of the

charged offense beyond a reasonable doubt.” See rd.3

Failure to instruct the members how they should

properly consider propensity to commit sexual

assault was, under the circumstances of this case,

error that was plain and obvious.

In light of the fundamental, constitutional nature

of this error, the Government has the burden of

establishing that the error had “no causal effect

2? For an example of a propensity instruction, see Dep't of the

Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook

ch.7, para. 7-13-1, n.4 (2002).

3 As this court said in Schroder, “[I)t is essential that... the

members .. . be instructed that the introduction of such

propensity evidence does not relieve the government of its

burden of proving every element of every offense charged.

Moreover, the factfinder may not convict on the basis of

propensity evidence alone.” /d. at 56.

20a

upon the findings.” United States v. Othuru, 65 M.J.

375, 377 (C.A.A.F. 2007) (citing United States v.

Simmons, 59 M.Jd. 485, 489 (C.A.A.F. 2004); United

States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995)). The

Government must demonstrate that there is no

reasonable possibility that the lack of instruction

contributed to the contested findings of guilty.

United States v. Kreutzer, 61 M.J. 293, 300

(C.A.A.F. 2005). Because the members lacked any

guidance in the evaluation of trial counsel’s

invitation to consider propensity, there is no

assurance that the Government was held to its

burden of proof or that Burton was convicted on

direct evidence of the charged rape rather than upon

the improper use of propensity derived from the

other charged offense. The error was not harmless

beyond a reasonable doubt.

I would reverse the decision of the United States

Air Force Court of Criminal Appeals, set aside the

findings and sentence, and authorize a rehearing.

2la

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

Staff Sergeant LINDWOOD W. BURTON JR.,

United States Air Force

ACM 36296

July 16, 2007, Decided

NOTICE: NOT FOR PUBLICATION

DISPOSITION: AFFIRMED.

COUNSEL: For Appellant: Colonel Nikki A. Hall,

Lieutenant Colonel Mark R. Strickland, Captain

Anthony D. Ortiz, and Mary T. Hall, Esq.

For the United States: Colonel Gerald R. Bruce

Colonel Gary F. Spencer Lieutenant Colonel Robert

V. Combs Major Matthew S. Ward, and Major Carrie

E. Wolf.

JUDGES: Before SCHOLZ, JACOBSON, and

THOMPSON, Appellate Military Judges.

OPINION BY: THOMPSON

THOMPSON, Judge:

22a

The appellant was tried at Yokota Air Base,

Japan, by a general court-martial composed of officer

and enlisted members. Contrary to his pleas, the

appellant was found guilty of rape, indecent acts (as

a lesser included offense of the charged indecent

assault), and consensual sodomy (as a_ lesser

included offense of the charged forcible sodomy) in

violation of Articles 120, 134 and 125, UCMJ, 10

U.S.C. §§ 920, 934, 925. He was found not guilty of

one specification of attempted rape. The court-

martial sentenced the appellant to a dishonorable

discharge, confinement for 8 years, and reduction to

the grade of E-1. The convening authority

disapproved the findings of guilty as to the offenses

of indecent acts and consensual sodomy, and

approved the sentence as adjudged, except for the

term of confinement, which he reduced to 7 years.

On appeal, the appellant asserts six errors: (1)

The military judge erred when he denied the defense

motion to dismiss the rape charge because it was not

properly investigated under Article 32, UCMJ, 10

U.S.C. § 832; (2) The evidence is legally and factually

insufficient to support his conviction; (3) The trial

counsel's findings argument was improper, in that

he argued the appellant demonstrated a propensity

to engage in sexual assault; (4) Assuming the trial

counsel's findings argument was not improper, the

military judge erred by failing to give an additional

propensity instruction; (5) The military judge erred

in permitting irrelevant matters in aggravation; and

(6) The sentence is inappropriately severe. We have

examined the record of trial, the assignments of

error, and the government's response. We find that

23a

the military judge did err with respect to the first

issue, but conclude the error did not materially

prejudice the substantial rights of the appellant.

Article 59(a), UCMJ, 10 U.S.C. § 859(a).

Background

The charges against the appellant arose from his

alleged improper sexual conduct with two women:

first, with SS while he was on leave in Venice, Italy,

in September, 2000, and second, with Senior Airman

(SrA) H, in Tachikawa City, Japan, in February,

2004.

On 19 July 2004, a single charge and specification

of rape of then-SrA H was preferred. A pretrial

investigation of that charge, pursuant to Article 32,

UCM, was held on 23 July 2004. The appellant was

represented by counsel at the Article 32, UCM,

investigation and had the opportunity to cross-

examine SrA H, who was present and testified at the

hearing. The defense did not allege any defects in

the investigation and the charge was referred to a

general court-martial on 16 August 2004.

During its preparation for trial, the government

discovered evidence of _ possible additional

misconduct by the appellant against SS. On 26

September 2004, the government provided notice to

admit a written statement alleging the appellant

committed the uncharged acts against SS in 2000,

and on 27 September 2004 notified the defense that

they intended to call SS, the alleged former victim,

to testify at trial. On 28 September 2004, the

24a

appellant was arraigned in an Article 39(a) UCMJ,

10 U.S.C. § 839(a), session during which the defense

submitted a motion to suppress the written

statement and the testimony of the witness, based in

part on lack of notice. The military judge declined to

suppress the testimony based on lack of notice, but

delayed the case until 15 November 2004 to allow

the defense time to prepare.

On 8 November 2004, the charge alleging the

rape of SrA H (the "original charge") was withdrawn

and dismissed by the convening authority. On 10

November 2004, a charge of rape of SrA H was

preferred; this charge is identical to the original

charge except the appellant's unit was changed. Also

on that date, three additional charges and

specifications were preferred, alleging attempted

rape, forcible sodomy and indecent assault of SS. In

an undated memorandum, Lieutenant Colonel (Lt

Col) T was appointed to investigate the charges and

specifications pursuant to Article 32, UCMJ. On 12

November 2004 the trial defense counsel submitted a

memorandum to Lt Col T, requesting that SS and

SrA H appear at the hearing. The trial defense

counsel noted that the government intended to rely

on the earlier Article 32, UCMJ, hearing as to the

original charge, but demanded further investigation

pursuant to Rule for Courts-Martial (R.C.M.) 405(b).

The trial defense counsel proffered that since the

time of the original Article 32 investigation, SrA H

had committed veracity offenses, gone absent

without leave (AWOL), and was found to have

fraudulently eniisted in the Air Force.

25a

On 14 November 2004, Lt Col T was issued a

new appointment letter, authorizing him _ to

investigate the three new charges and specifications,

but not the original charge. On 18 November 2004,

Lt Col T completed his investigation, noting in his

report that he did not further investigate the

original rape charge, but he did attach a copy of the

earlier Article 32, UCMJ, hearing report to his new

report, which was forwarded to the convening

authority. The trial defense counsel made a written

objection to the 18 November 2004 investigation,

noting among other things, that the original charge

had not been reinvestigated. All four charges were

referred to general court-martial on 30 December

2004. The trial defense counsel] submitted a timely

motion to dismiss, maintaining that because the

original charge was dismissed, a new Article 32,

UCMU, investigation was required, and that the

government's use of the prior investigation was

covered by Article 32(c), UCMJ, which provided the

appellant the right to fulther investigation. The

military judge denied the motion to dismiss, finding

that the re-preferred charse was identical to the

original charge except for the appellant's unit, that

the original charge was Plperly investigated, and

thus no new investigation was required. He also

determined that use of the frevious investigation did

not fall under R.C.M. 405(c), and therefore the

appellant was not entitlhg tt) demand further

investigation.

Investigation of the Charge

We review the militar, judge's denial of the

26a

motion to dismiss for an abuse of discretion. United

States v. Davis, 62 M.J. 645, 647 (A.F. Ct. Crim.

App. 2006). We consider first the military judge's

conclusion that no new Article 32 investigation was

required for the dismissed and re-preferred charge.

Our superior court has stated that when charges

have been withdrawn and dismissed, reinstituting

the charges "requires the command to start over."

United States v. Britton, 26 M.J. 24, 26 (C.M.A.

1988). "The charges must. be re-preferred,

investigated and referred in accordance with the

Rules for Courts-Martial, as though there were no

previous charges or proceedings." /d. In the present

case the government did not completely start over.

Instead, the officer investigating the new charges

simply forwarded the previous Article 32, UCM,

report, to the convening authority with no new

recommendations. Thus the government did not fully

comply with the requirements of Article 32. We also

find the military judge erred when he determined

that no further investigation was required by the

provisions of Article 32(c), UCMJ, and R.C.M. 405(b).

Those provisions state that where an investigation of

an offense was conducted before an accused is

charged, <.nd that investigation provided the accused

the rights to counsel, cross-examination, and

presentation of evidence, no further investigation is

required "unless it is demanded by the accused after

he is informed of the charge." Article 32(c), UC MJ;

R.C.M. 405(b).

We find that when the government relies on a

previously completed Article 32, UCM, hearing to

support re-referral of dismissed charges, with no

27a

new recommendations by an investigating officer,

the investigation is covered by Article 32(c), UCMJ,

and an accused has the opportunity to demand

further investigation. The military judge abused his

discretion by not allowing for reinvestigation under

Article 32, UCMJ. The appellant contends that the

appropriate remedy is to set aside the findings and

sentence. We decline to do so. The requirements for

pretrial investigations are binding "but failure to

follow them does not constitute jurisdictional error."

Article 32(e), UCMJ. An error in the Article 32,

UCMJ, investigation process is not a "structural

error subiect to reversal without testing for

prejudice." United States v. Davis, 64 M.J. 445, 449

(C.A.A.F. 2007) (quoting Arizona v. Fulminante, 499

U.S. 279, 307-10, 111 S. Ct. 1246, 113 L. Ed. 2d 302

(1991)). Article 59(a), UCMJ, states: "A finding or

sentence of 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." On appeal we evaluate errors in Article 32,

UCMJ, proceedings under Article 59(a), UCMJ.

Davis, 64 M.J. at 449.

We test for material prejudice using the harmless

beyond a reasonable doubt standard. United States

v. /Creutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). The

appropriate inquiry is "whether, beyond a reasonable

doubt, the error did not contribute to the

[appellant's] conviction or sentence." /d. (citing

United States v. Pollard, 38 M.J. 41, 52 (C.M.A.

1993)).

As noted above, the appellant wanted to cross-

28a

examine the victim, SrA H, on unspecified veracity

offenses, her AWOL, and evidence that she

fraudulently enlisted in the Air Force by concealing

drug use. This information was, however, provided

to the convening authority before he referred the

rape charge to a general court-martial. In addition to

having the report from the original Article 32,

UCMJ, investigation, the convening authority

received pretrial advice concerning the rape charge

in accordance with Article 34, UCMJ. In his pretrial

advice to the convening authority, the staff judge

advocate (SJA) commented on SrA H's credibility,

noting that she had been given a letter of reprimand

for two violations of AWOL, and that she made a

false official statement in her response to the letter

of reprimand. The SJA also informed the convening

authority of the trial defense counsel's assertion that

SrA H had used marijuana before joining the Air

Force.

SrA H appeared at trial and testified. The trial

defense counsel conducted a_ thorough cross-

examination, among other’ things’ drawing

admissions from SrA H that she led about her pre-

service drug use and made false statements to her

superiors. We find there is no evidence that the trial

defense counsel's pretrial preparation was hampered

because of defects in the pretrial investigation. In

light of the detailed cross-examination of SrA H

conducted at trial, we find that the error in this case

was not a factor in obtaining the appellant's

conviction. We conclude that the military judge's

refusal to dismiss the affected charge for

reinvestigation was harmless beyond a reasonable

doubt.

Factual and Legal Sufficiency

The appellant next argues that the evidence

presented at trial was legally and _ factually

insufficient to support his conviction for rape. We

disagree. The test for legal sufficiency is whether,

when the evidence is viewed in the lght most

favorable to the government, any rational fact finder

could have found the essential elements of the

offense beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed.

2d 560 (1979); United States v. Reed, 54 M.J. 37, 41

(C.A.A.F. 2000). The test for factual sufficiency is

whether, after weighing the evidence and making

allowances for not having observed the witnesses, we

ourselves are convinced of the appellant's guilt

beyond a reasonable doubt. Heed, 54 M.J. at 41

(citing United States v. Turner, 25 M.J. 324, 325

(C.M.A. 1987)).

The crux of the appellant's argument is that he is

not guilty because SrA H lacked credibility, that she

had a motive to fabricate, that her actions were

inconsistent with someone who had been raped, and

that the physical actions she described were

improbable. We find the appellant's arguments

unpersuasive. The evidence in this case, viewed in a

lhght most favorable to the prosecution, provides a

sufficient basis from which a rational trier of fact

could have found all of the elements of rape beyond a

reasonable doubt. Further, after considering all of

the evidence in the record of trial and making

30a

allowances for not having personally observed the

witnesses, we ourselves are convinced beyond a

reasonable doubt that the appellant committed the

offense. Therefore, his conviction is legally and

factually sufficient. See Turner, 25 M.J. at 324-25.

Trial Counsel Argument

Next, the appellant asserts that, during his

findings argument, the trial counsel improperly

argued that the appellant demonstrated a propensity

to engage in sexual assault. Specifically, the

appellant contests the portion of the trial counsel's

argument urging the members to compare the

testimony from both of the alleged victims, and to

use that testimony to examine the appellant's

method of operation and his propensity to engage in

sexual assault.

The standard of review for an improper argument

depends on the content of the argument and whether

the defense counsel objected to the argument.

Failure to object to improper argument constitutes

waiver. R.C.M. 919(c). In the absence of an objection,

we review for plain error. United States v.

Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004). Plain

error occurs when: (1) there is an error; (2) the error

is plain or obvious; and (3) the error results in

material prejudice to a substantial right of the

appellant. /d. At 88-89 (citing United States v.

Powell 49 M.J. 460, 463-65 (C.A.A.F. 1998)).

In the case sub judice, the trial defense counsel

did not object to the trial counsel's argument and

3la

thus we apply a plain error analysis to determine

whether relief should be granted. While arguments

that an accused has a propensity to commit an

offense are generally prohibited, an exception has

been made in the case of sexual assault. Under Mil.

R. Evid. 413, other acts of sexual assault may be

introduced for expansive purposes, including

propensity. While Mil. R. Evid. 413 most often deals

with prior sexual acts not charged in the ongoing

proceedings, it is useful to analyze the present case

in terms of Mil. R. Evid. 413. See, e.g., United States

v. Myers, 51 M.J. 570 (N.M. Ct. Crim. App 1999).

Where trial counsel's argument regarding propensity

could have been made pursuant to Mil. R. Evid. 413

with uncharged prior sex acts, we find it is not plain

error to make the same arguments when the prior

sex acts are charged offenses.

We further find that the trial counsel's argument

did not result in any material prejudice to the rights

of the appellant. The trial counsel's argument spans

16 pages in the record of trial. During the course of

the argument the trial counsel used the word

"propensity" only twice, and while doing so he

informed the members "I don't intend for you to take

proof of one offense to find him guilty of another...

" We consider the argument of a trial counsel in

context, and not in isolation. United States v. Baer,

53 M.J. 235, 238 (C.A.A.F. 2000). Viewed in context

of the entire court-martial, we are convinced beyond

a reasonable doubt that the trial counsel's comments

did not prejudice a substantial right of the appellant.

32a

Instructions from the Military Judge

The appellant avers that the military judge erred

by failing to give an additional propensity

instruction, based on the trial counsel's argument. In

his instructions the military judge included a

standard spillover instruction:

Each offense must stand on its own and you

must keep the evidence of each offense

separate. Stated differently, if you find or

believe that the accused is guilty of one

offense, you may not use that finding or belief

as a basis for inferring, assuming, or proving

that he committed any other offense. The

burden is on the prosecution to prove each and

every element of each offense beyond a

reasonable doubt. Proof on one offense carries

with it no inference that the accused is guilty

of any other offense.

The trial defense counsel did not object to the

spillover instruction, and did not request a further

propensity instruction.

The question of whether the members were

properly instructed is a matter of law we review de

novo. United States v. Green, 62 M.J. 501, 503 (A.F.

Ct. Crim. App. 2005), (citing United States v.

Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996)). A failure

to object to an instruction prior to commencement of

deliberations waives the objection absent plain error.

R.C.M. 920(f); United States v. Simpson, 56 M.J.

33a

462, 465 (C.A.A.F. 2002). In the present case we find

the military judge's instruction was sufficient to

inform the members how they should view the

evidence. Even assuming, arguendo, that the

military judge should also have given further

instructions specifically mentioning propensity, his

failure to do so did not result in material prejudice to

a substantial right of the appellant.

Although charged with attempted rape, forcible

sodomy, and indecent assault against SS, the

members found him guilty only of consensual

sodomy and indecent acts. This suggests that the

members were not unduly swayed to convict the

appellant by the military judge's failure to provide a

specific propensity instruction. See, e.g., United

States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007). Based

on the totality of the evidence, the member's

findings, and the spillover instruction given the

members by the military judge, we are convinced

beyond a reasonable doubt that the lack of a specific

propensity instruction did not contribute to the

appellant's conviction. Areutzer, 61 M.J. at 298.

Sentencing Evidence

The appellant next argues that the military judge

erred when he allowed SS to testify during

sentencing. Over trial defense counsel's objection, SS

testified during presentencing that she lost her self

confidence, considered suicide, became _ easily

hysterical, could not devclop or maintain

relationships, and could not go anywhere alone

34a

anymore. The appellant maintains that because the

members found there was insufficient evidence to

conclude the appellant forced SS to engage in

sodomy or the indecent acts, her comments should

have been restricted to any effects caused by her

having consensual sex with the appellant.

The standard of review on appeal for the

admission or exclusion of evidence on sentencing is

whether the military judge clearly abused his

discretion. United States v. Clemente, 50 M.J. 36, 37

(C.A.A.F. 1999). R.C.M. 1001(b)(4) permits a trial

counsel to present evidence as to any aggravating

circumstances directly relating to or resulting from

the offenses of which the accused has been found

guilty. Evidence in aggravation includes, but is not

limited to, evidence of social, psychological, and

medical impact or cost to any person who was the

victim of an offense committed by the accused.

Whether or not a circumstance is directly related to

or results from the offenses calls for considered

judgment by the military judge, and is not to be

overturned lightly. United States v. Wilson, 47 M.J.

152, 155 (C.A.A.F. 1997) (citing United States v.

Jones, 44 M.J. 103, 104-05 (C.A.A.F. 1996)). We hold

that the military judge in the present case did not

abuse his discretion in permitting SS to testify as to

proper matters in aggravation. R.C.M.1001(b)(4).

Sentence Appropriateness

This Court may affirm only such findings and

sentence as we find correct in law and in fact, and

determine, on the basis of the entire record, should

35a

be approved. Article 66(c), UCMd, 10 U.S.C. § 866(c).

When considering sentence appropriateness, we

should give “individualized consideration’, of the

particular accused ‘on the basis of the nature and

seriousness of the offense and the character of the

offender." United States v. Snelling, 14 M.J. 267,

268 (C.M.A. 1982) (quoting United States v.

Mamaluy, 10 C.M.A. 102, 27 C.M.R. 176, 180-81

(C.M.A. 1959)).

In conducting our review we must keep in mind

that Article 66(c), UCMJ, has a_= sentence

appropriateness provision that is "a sweeping

Congressional mandate to ensure ‘a fair and just

punishment for every accused.” United States v.

Baier, 60 MJ. 382, 384 (C.A.A.F. 2005) (citing

United States v. Bauerbach, 55 M.J. 501, 506

(A.C.C.A. 2001)). Article 66(c), UCMJ, "requires that

[we] independently determine, in every case within

lour] limited Article 66, UCMJ, jurisdiction, the

sentence appropriateness of cach case [we] affirm."

Baier, 60 M.J. at 384-85.

We may also take into account disparities

between sentences for similar offenses. Our duty to

assess the appropriateness of a sentence is "highly

discretionary," but does not authorize us to engage

in an exercise of clemency. United States v. Lacy, 50

M.J. 286, 288 (C.A.A.F. 1999); United States v.

Healy, 26 MJ. 394, 395-96 (C.M.A. 1988).

After carefully examining the submissions of

counsel and taking into account all the facts and

circumstances, we do not find the appellant's

36a

sentence inappropriately severe. See Snelling, 14

M.J. at 268-69. To the contrary, after reviewing the

entire record, we find the sentence is appropriate for

this offender and his offenses. See Baier, 60 M.J. at

383-84; Healy, 26 M.J. at 395.

Conclusion

The approved findings and sentence are correct in

law and fact, and no error prejudicial to the

substantial rights of the appellant occurred. Article

66(c), UCMJ: Reed, 54 M.J. at 41. Accordingly, the

approved findings ai d sentence are

AFFIRMED.

37a

FED. R. EVID. 413 provides the following, in part:

(a) In a criminal case in which the defendant

is accused of an offense of sexual assault,

evidence of the defendant’s commission of

another offense or offenses of sexual

assault is admissible, and may be

considered for its bearing of any matter to

which it is relevant.

(b) In a case in which the Government intends

to offer evidence under this rule, the

attorney for the Government shall disclose

the evidence to the defendant, including

statements of witnesses or a summary of

the substance of any testimony that is

expected to be offered, at least fifteen days

before the scheduled date of trial or at such

later time as the court may allow for good

cause.

38a

FED. R. EVID. 414 provides the following, in part:

(a) In a criminal case in which the defendant

is accused of an _ offense of child

molestation, evidence of the defendant’s

commission of another offense or offenses of

child molestation is admissible, and may be

considered for its bearing on any matter to

which it is relevant.

(b) In a case in which the Government intends

to offer evidence under this rule, the

attorney for the Government shall disclose

the evidence to the defendant, including

statements of witnesses or a summary of

the substance of any testimony that is

expected to be offered, at least fifteen days

before the scheduled date of trial or at such

later time as the court may allow for good

cause.

39:

MIL. R. EVID. 401 provides t,., ¢,)) owing:

“Relevant evidence” myn, evidence having

any tendency to make tl, o.istence of any fact

that is of consequence t ype determination of

the action more probabl: or less probable than

it would be without the Cidence

MIL. R. EVID. 402 states ther towing:

MIL. R. EVID. 403 provides t

] relev ce is ISS]

All relevant evidence i admissible, except as

otherwise provided oy t., Constitution of the

United States as appliy ,.

ne ae members of the

armea lorces, € ©9%, these rules, this

Manual, or any Act of ‘ongress applicable to

members of the armed | ee Evidence which

is evant i tadi-_.

not rel s no Reeiieti.

ie following:

Although relevant, evid

if its probative’ val

outweighed by the dang

confusion of the issue

members, or by conside

waste of time, or neé

cumulative evidence.

nce may be excluded

e is_ substantially

r of unfair prejudice,

5, or misleading the

ations of undue delay,

lless presentation of

40a

MIL. R. EVID. 404 states the following, in relevant

part:

(a) Evidence of a person’s character or a trait

of character is not admissible for the

purpose of proving action in conformity

therewith on a particular occasion, except:

(1) Evidence of a _ pertinent trait of

character offered by an accused, or by

the prosecution to rebut the same, or if

evidence of a pertinent trait of character

of the alleged victim of the crime is

offered by an accused and admitted

under MIL. R. Evip. 404(a)(2), evidence

of the same trait of character, if

relevant, of the accused offered by the

prosecution;

(2) Evidence of a _ pertinent trait of

character of the alleged victim of the

crime offered by the accused, or by the

prosecution to rebut the same, or

evidence of a character trait of

peacefulness of the alleged victim

offered by the prosecution in a homicide

or assault case to rebut evidence that

the alleged victim was an aggressor.

4la

MIL. R. EVID. 413 provides the following, in part:

(a) In a court-martial in which the accused is

charged with an offense of sexuai assault,

evidence of the accused’s commission of one

or more offenses of sexual assault is

admissible and may be considered for its

bearing on any matter to which it is

relevant.

(b)In a court-martial in which the

Government intends to offer evidence

under this rule, the Government shall

disclose the evidence to the accused,

including statements of witnesses or a

summary of the substance of any testimony

that is expected to be offered, at least 5

days before the scheduled date of trial, or

at such later time as the military judge

may allow for good cause.

42a

MIL. R. EVID. 414 provides the following, in part:

(a) In a court-martial in which the accused is

charged with an _ offense of child

molestation, evidence of the accused’s

commission of one or more offenses of child

molestation is admissible and may be

considered for its bearing on any matter to

which it is relevant.

(b)In a court-martial in which the

Government intends to offer evidence

under this rule, the Government shall

disclose the evidence to the accused,

including statements of witnesses or a

summary of the substance of any testimony

that is expected to be offered, at least 5

days before the scheduled date of trial, or

at such later time as the military judge

may allow for good cause.