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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

Supreme Coun, U.S

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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0396%3A1. Public record. Not legal advice.