United States v. Master Sergeant ALAN S. GUARDADO
2016 CCA LEXIS 664
| A.C.C.A. | 2016Background
- MSG Alan Guardado was court-martialed and convicted of multiple sexual offenses involving his 10-year-old daughter, a 14-year-old niece (hotel-room incident), and several teenage soccer players he coached.
- The panel convicted Guardado of a mix of aggravated sexual contact, indecent liberties with a child, battery of a child, indecent assault/acts, general disorder (Article 134) and indecent language; sentence: 8 years confinement, total forfeitures, reduction to E‑1 (no punitive discharge).
- Government’s charging was broad: overlapping specifications, alternative charges, and some specifications that substantially duplicated others.
- Military judge gave propensity instructions under Mil. R. Evid. 413/404(b) allowing use of charged-offense evidence as propensity for other charged offenses; defense did not object at trial.
- Trial judge conditioned defense civilian witnesses’ testimony on their agreeing to interviews by trial counsel; defense nevertheless called those witnesses and no relief resulted on appeal.
- On appeal the court (Army Ct. Crim. App.) found (1) the propensity instruction under Hills was erroneous but harmless beyond a reasonable doubt; (2) preemption does not deprive court-martial jurisdiction here; (3) conditioning witness testimony on interviews was error but harmless; and (4) several specifications were multiplicious or unreasonably multiplied and were dismissed (some conditionally), leading to sentence reassessment to 7 years 8 months confinement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of propensity evidence between charged offenses (Hills) | Propensity instruction was improper and violated presumption of innocence; any such instruction is barred when based on charged conduct | Government relied on precedents allowing propensity between distinct charged offenses and argued no prejudice here | Court read Hills broadly to prohibit propensity instruction based on charged offenses; error found but harmless beyond a reasonable doubt on facts (convicted of one distinct offense; other charged propensity offenses acquitted; evidence independently sufficient) |
| Mil. R. Evid. 404(b) vs. 413 interplay | Propensity instruction extended improperly to 404(b) uses; Hills should control | Government argued Hills limited to 413 and not to 404(b); no objection at trial so plain‑error review | Court declined to extend Hills to bar all 404(b) uses absent objection; found no plain error on 404(b) instruction because defense did not object and no prejudice shown |
| Preemption (Article 134 general disorder vs. enumerated indecent language) | Charging general disorder specifications for sexually explicit communications were preempted by the enumerated Article 134 offense of indecent language; preemption is jurisdictional so may be raised at any time | Government argued preemption doctrine is prudential, not jurisdictional here; President’s enumeration does not equate to Congressional occupation; general disorders were not preempted | Court held preemption (outside the Assimilative Crimes Act context) is not jurisdictional; Article 134 general disorder counts were not preempted by the indecent language enumeration; convictions stood except where multiplicity/unreasonable multiplication required dismissal |
| Conditioning witness testimony on government interviews | Witnesses’ refusal to be interviewed justified exclusion; defense counsel failed to secure interviews | Defense argued judge lacked authority to compel interviews or bar testimony for refusing interview; compelled interviews exceed Article 46 and civilian-witness limits | Court held judge erred in conditioning testimony on interviews (no authority to compel), but error was harmless here because defense still called witnesses and no prejudice was shown |
| Multiplicity and unreasonable multiplication of charges | Several specifications overlapped or subsumed others (hotel-room battery vs indecent assault/act; overlapping Article 134 specs) and should be dismissed | Government conceded some multiplicity and asked conditional dismissals; argued some alleged distinct acts | Court found multiple specifications duplicative or unreasonably multiplied: dismissed Specification 2 of Charge II and Specifications 2 and 4 of Charge III; conditionally dismissed the Additional Charge and one Additional‑Charge specification; reassessed and reduced affirmed confinement to 7 years 8 months |
Key Cases Cited
- United States v. Hills, 76 M.J. 350 (C.A.A.F. 2016) (prohibits using charged conduct under Mil. R. Evid. 413 to show propensity for the same charged conduct)
- United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007) (addressed Mil. R. Evid. 414/413 instructions and harmless-error analysis)
- United States v. Burton, 67 M.J. 150 (C.A.A.F. 2009) (government must follow rule procedure to introduce propensity evidence; improper closing argument was error)
- United States v. Barnes, 74 M.J. 692 (Army Ct. Crim. App. 2015) (permitted propensity evidence from charged offenses when victims and incidents were distinct)
- United States v. Robbins, 52 M.J. 159 (C.A.A.F. 1999) (preemption in the Assimilative Crimes Act context; preemption treated as element of ACA offense)
- Blockburger v. United States, 284 U.S. 299 (1932) (multiplicity test comparing statutory elements)
- United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001) (guidance on unreasonable multiplication of charges)
- United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010) (Article 134 elements and limits on treating general article as lesser included)
- United States v. Foster, 70 M.J. 225 (C.A.A.F. 2011) (addresses Article 134 elements post‑Jones)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards for sentence reassessment on appeal)