United States v. Wiredu, 201600243

Background

Appellant, an enlisted sailor, was tried by a general court-martial and convicted of sexual assault (Article 120, UCMJ) for the incident involving JW; acquitted of two other charged incidents (SB and PO KR). The CA approved findings and sentence (12 months confinement, reduction to E‑1, forfeitures, dishonorable discharge).
JW alleged nonconsensual intercourse after meeting appellant via online contact; contemporaneous texts to friends, visible distress, a forensic exam showing a genital abrasion and a pushed-in tampon, and the appellant’s DNA on multiple swabs were admitted.
Two other women (SB and Petty Officer KR) separately alleged nonconsensual sexual contact/assault months later; none of the three complainants knew each other before alleging misconduct.
The Government sought and the military judge granted admission of the other charged acts (SB and KR) as propensity evidence under Mil. R. Evid. 413; the judge gave the benchbook-model instruction requiring a preponderance finding before considering charged acts for propensity.
Trial counsel emphasized propensity and pattern in argument (“Three women, one sailor, four months”), and specifically invoked the model instruction in closing. The members convicted only for the JW incident.
On appeal, the court found admission of charged offenses under Rule 413 for propensity was erroneous under controlling precedent and that the instructional error was not harmless beyond a reasonable doubt; therefore the findings and sentence were set aside and a rehearing authorized.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Admission of charged offenses as propensity evidence under Mil. R. Evid. 413 / due process (Hills/Hukill line)	Admission and instruction using charged, contested offenses as propensity evidence violated due process and controlling precedent.	The military judge properly applied Mil. R. Evid. 413 and gave the benchbook instruction; evidence and instruction were permissible.	Error: Admission/use of charged offenses as propensity evidence is prohibited by Hukill/Hills. Instructional error was not harmless beyond a reasonable doubt; findings and sentence set aside.
Factual sufficiency of conviction (JW)	The evidence was insufficient to prove guilt beyond a reasonable doubt.	Sufficient independent evidence (texts, demeanor, forensic findings, DNA) supports the conviction.	Court affirmed belief in guilt beyond a reasonable doubt on the whole-record sufficiency review, but remedial relief still required due to the 413 error.
Alleged plain error in reasonable-doubt instruction	The reasonable-doubt instruction was flawed and prejudicial.	Precedent (McClour) resolves the issue against appellant.	Summarily rejected based on controlling precedent; no relief on this ground.
Remedy	Trial error requires reversal and no remand.	If error prejudicial, remand for rehearing is appropriate.	Findings and sentence set aside; record returned for remand to CA with rehearing authorized.

Key Cases Cited

United States v. Hills, 75 M.J. 350 (2016) (held charged-and-contested offenses may not be used as propensity evidence)
United States v. Hukill, 76 M.J. 219 (2017) (reaffirmed that using charged offenses as 413 propensity evidence is error)
United States v. Rankin, 63 M.J. 552 (2006) (context on appellate factual-sufficiency review)
United States v. Turner, 25 M.J. 324 (1987) (appellate review standard when court did not see or hear witnesses)
United States v. Wolford, 62 M.J. 418 (2006) (instructional error with constitutional implications is presumptively prejudicial unless harmless beyond a reasonable doubt)
United States v. Moran, 65 M.J. 178 (2007) (harmless-error standard: whether there is a reasonable possibility the error contributed to conviction)
United States v. Prather, 69 M.J. 338 (2011) (evaluate instructions in context of overall message to members)
United States v. McClour, 76 M.J. 23 (2017) (resolved appellant’s separate challenge to the reasonable-doubt instruction)