United States v. Navarro, ACM 38790

Background

TSgt Marco A. Navarro pled guilty at a general court-martial to multiple offenses involving sexual abuse of his two minor sons (CN1 born 1998; CN2 born 2000), including abusive sexual contact and forcible sodomy; additional specifications were contested at trial.
The military judge accepted guilty pleas and a lengthy stipulation of fact and conducted the Care inquiry, telling Navarro those admissions would be used to determine guilt on pleaded offenses and for sentencing, but not warning they could be used against contested charges.
The Government sought and the military judge allowed use of the stipulation and allocution under Mil. R. Evid. 414 as propensity evidence against contested specifications; neither victim testified but recorded interviews and family testimony were introduced.
On bench trial, the judge convicted Navarro of several contested specifications after considering the stipulation/allocution and Mil. R. Evid. 414 evidence.
The Air Force CCA held the military judge erred in using the stipulation and Care allocution as substantive Mil. R. Evid. 414 propensity evidence for the contested charges (including cross-use between victims), found the error not harmless, set aside and dismissed with prejudice all findings except those to which Navarro pled guilty, reassessed the sentence, and denied post-trial delay relief.
Reassessed sentence: dishonorable discharge, 29 years confinement, reduction to E‑1, and a reprimand; adjudged total forfeitures were not approved due to SJA error and corrective action was taken.

Issues

Issue	Navarro's Argument	Government's Argument	Held
1. Use of stipulation of fact against contested charges	Stipulation should not be used as substantive evidence against contested offenses; he relied on judge’s admonition limiting use	Stipulation and allocution were admissible and could be considered under Mil. R. Evid. 414	Court: Use was error; judge failed to ensure Navarro knowingly waived rights—constitutional error; stipulation only usable to establish elements common to LIO pleaded guilty to
2. Use of Care allocution against contested charges	Allocution protected by self-incrimination rules and cannot be used to prove separate offenses to which he pleaded not guilty	Allocution admissions were in evidence and may be considered for related contested specifications	Court: Use was error; judicial admissions in Care inquiry cannot be used to prove entirely separate offenses—violated Flores/Dorrell principles
3. Admission of charged conduct under Mil. R. Evid. 414 as propensity evidence	Cannot bootstrap charged admissions/allocution to prove other charged specifications (esp. same victims/times)	Relied on precedent allowing prior-admission conduct to be used for propensity (Wright and service‑court decisions)	Court: Admission of charged conduct/allocution as 414 propensity evidence was an abuse of discretion under Hills; error was not harmless and substantially influenced findings
4. Post-trial processing delay (Moreno/Tardif)	Navarro sought relief for 128–138 day delay to convening authority action	Government explained extensions and no bad faith; no prejudice shown	Court: No Moreno/Tardif relief; delay did not warrant relief under Gay factors

Key Cases Cited

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016) (Mil. R. Evid. 413/414 cannot be used to show propensity by relying on the very charged acts the prosecution must prove)
United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000) (admission of guilty plea conduct may be admissible for propensity when not an offense members must deliberate)
United States v. Flores, 69 M.J. 366 (C.A.A.F. 2011) (allocution statements during plea inquiry are not available as evidence of separate offenses)
United States v. Resch, 65 M.J. 233 (C.A.A.F. 2007) (judge must ensure accused understands what he gives up by a plea)
United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (standards for reassessing sentence on appeal)
United States v. Kreutzer, 61 M.J. 293 (C.A.A.F. 2005) (harmless‑beyond‑a‑reasonable‑doubt test for constitutional trial error)