Background - Master Sergeant Alan S. Guardado was tried by general court-martial on multiple sexual misconduct charges spanning decades, including aggravated sexual contact of his daughter (KG), indecent liberties/battery/indecent acts against teenage soccer players, and other sexual offenses; he was convicted on numerous specifications and sentenced to confinement and reduction in rank. - At trial the military judge instructed members that evidence of four charged sexual offenses could be considered for propensity (M.R.E. 413/414) purposes if proven by a preponderance, while the Government still bore proof beyond a reasonable doubt for convictions; Guardado was convicted of one of those four (aggravated sexual contact on KG) and acquitted of the other three. - After trial the Army Court of Criminal Appeals (CCA) affirmed in part, dismissed some specifications for multiplicity, and upheld a substantial sentence; Guardado appealed to the Court of Appeals for the Armed Forces (CAAF) raising instructional error and that certain Article 134 novel general disorder specifications were precluded by existing Article 134 offenses. - CAAF reviewed (under plain error for the unobjected-to instruction) whether permitting charged offenses to be used as propensity evidence violated Hills and Hukill and whether the Government improperly charged novel Article 134 offenses when an indecent language offense already covered the conduct. - CAAF held the propensity instruction was clear error that was not harmless beyond a reasonable doubt and set aside the conviction for Specification 1 of Charge I (the aggravated sexual contact conviction); it also held the two novel Article 134 specifications based on sexually explicit comments were barred because the indecent language offense already covered that conduct, and dismissed those specifications. - The Court affirmed several other findings, set aside the sentence, and returned the record for rehearing on Specification 1 of Charge I and the sentence. ### Issues | Issue | Plaintiff's Argument (United States) | Defendant's Argument (Guardado) | Held | |---|---:|---|---| | Whether the military judge’s instruction allowing charged offenses to be used as propensity evidence was harmless error | No prejudice: members acquitted three of four propensity-offenses, so instruction could not have improperly influenced conviction on the remaining specification | Instruction violated Hills/Hukill; using charged offenses for propensity infringes presumption of innocence and confused standards of proof | Instruction was clear/obvious error under Hills/Hukill and not harmless; conviction for Specification 1 of Charge I set aside; rehearing ordered | | Whether charged conduct may be used as M.R.E. 413/414 propensity evidence | Propensity instruction permissible and did not affect verdict given overall case facts | Charged conduct cannot be used as propensity evidence for other charged conduct; violates presumption of innocence and due process | Using charged offenses as propensity evidence is impermissible; the instruction here was unconstitutional and prejudicial | | Whether the Government may charge a novel Article 134 general disorder offense when a listed Article 134 offense covers the conduct | Novel Article 134 specs were appropriate charging choices | Novel specs violate the President’s MCM guidance and improperly omit elements of the listed offense (indecent language) | Government may not charge a novel Article 134 offense if the conduct is already covered by a listed Article 134 offense; two novel specs dismissed | | Remedy: effect on findings and sentence | Affirm convictions and sentence as the errors were harmless | Set aside affected findings and sentence; order rehearing | CAAF affirmed many findings, set aside Specification 1 of Charge I and the two novel Article 134 specs, dismissed the latter, and set aside the sentence for rehearing | ### Key Cases Cited United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (charged-offenses cannot be used as M.R.E. 413 propensity evidence; such instructions raise constitutional error) United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017) (reiterating prohibition on using charged conduct as propensity evidence in same case) United States v. Reese, 76 M.J. 297 (C.A.A.F. 2017) (government may not charge a novel Article 134 offense when the conduct is already covered by a listed Article 134 offense) United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011) (appellate review applies current law to unpreserved errors) * United States v. Davis, 76 M.J. 224 (C.A.A.F. 2017) (plain error review applies to unobjected-to instructional errors)