UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           HAIGHT, PENLAND, and WOLFE
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                          Sergeant GENE N. WILLIAMS
                          United States Army, Appellant

                                   ARMY 20130582

                             Headquarters, Fort Bragg
      Karin G. Tackaberry, Military Judge (arraignment and pretrial motions)
                Tara A. Osborne, Military Judge (pretrial motions)
                    Stephen E. Castlen, Military Judge (trial)
              Colonel Paul S. Wilson, Staff Judge Advocate (pretrial)
        Colonel Michael O. Lacey, Staff Judge Advocate (recommendation)
    Lieutenant Colonel Jerrett W. Dunlap, Jr., Staff Judge Advocate (addendum)


For Appellant: Captain Patrick A. Crocker, JA; Frank J. Spinner, Esq. (on brief);
Captain Patrick J. Scudieri, JA; Frank J. Spinner, Esq. (on reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Tara E. O’Brien (on brief).


                                   29 February 2016

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

WOLFE, Judge:

       A general court-martial composed of officer and enlisted members convicted
appellant, contrary to his pleas, of one specification of rape on divers occasions,
four specifications of forcible sodomy (three of which were on divers occasions),
and five specifications of assault consummated by battery (three of which were on
divers occasions), in violation of Articles 120, 125, and 128, Uniform Code of
Military Justice, 10 U.S.C. §§ 920, 925, 928 (2000; 2006). The court-martial
sentenced appellant to a dishonorable discharge, confinement for twenty years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority approved the reduction, forfeiture, and confinement portion of
the adjudged sentence, but approved only a bad-conduct discharge.
WILLIAMS — ARMY 20130582

       This case is now before us for review pursuant to Articles 66(c) and 73,
UCMJ. On appeal, appellant assigns two errors, one of which merits discussion but
not relief. Additionally, appellant submitted a petition for a new trial pro se and
raises thirty-seven issues pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), 1 none of which merits discussion or relief.

                                 I. BACKGROUND
       The allegations against appellant were levied by appellant’s ex-wives, SW and
TW. Both testified to violent marriages that involved rape (in the case of TW) and
forcible anal sodomy and battery (in the case of SW).

       On 10 November 2011, prior to trial, the government provided timely notice
to the defense of its intent to offer evidence of the offenses against each woman as
propensity evidence that appellant committed the charged offenses against the other.
That is, the government intended to use evidence that appellant committed each
sexual offense against one victim as evidence that appellant committed every other
sexual offense against the other victim. In response, on 30 January 2012, the
defense filed a timely motion asking the military judge to preclude the government
from offering evidence “for the purpose of showing propensity of the accused to
commit other charged offenses.”

       At an Article 39(a), UCMJ, session held on 21 March 2012, the military judge
discussed the matter with both parties. The military judge confirmed that the
government was not seeking to admit evidence of uncharged misconduct under
Military Rule of Evidence [hereinafter M.R.E.] 413. That is, any evidence that was
the subject of the motion was also evidence of a charged offense. Accordingly, the
military judge noted that the question was not whether the evidence would be
admissible, but rather the question turned on the purposes for which the evidence
would be considered. The defense counsel appeared to agree with the military judge
that this was an instructional issue, not a matter of whether the evidence was
admissible:

             MJ: So this is really an issue of whether or not I’m going
             to grant or I’m going to give an unmodified spillover
             instruction to the panel or whether or not I’m going to
             give an instruction to the panel about how they may use

1
  Appellant raised three matters under Grostefon in his initial brief. We
subsequently granted appellant’s motion to file an additional thirty-four matters out
of time. While we are able to fully consider appellant’s additional matters, they
were disorganized, poorly written, and would have benefited from additional
attention from counsel. See Grostefon, 12 M.J. at 435 (“Thus, the proper procedure
for appellate defense counsel, after consultation with the accused, is to identify the
issue to the appellate court and to supply such briefs and argument as he feels will
best advance his client’s interest.”).
                                           2
WILLIAMS — ARMY 20130582

             the offenses vis-à-vis each other to show some type of
             propensity for sexual assaults.

             ADC: Yes, Your Honor.

             MJ: And that’s solely the issue here with this motion as I
             understand it?

             ADC: Yes, Your Honor.

       While the defense asked for a pretrial ruling, the military judge indicated that
the issue was not ripe and could be more properly addressed when discussing how to
instruct the panel. The military judge did not explicitly rule on the motion. 2

       After the close of evidence, the military judge held a session under Article
39(a), UCMJ, to discuss instructions. He informed the parties he intended to give an
instruction on “propensity” and provided an opportunity for the parties to object and
request additional instructions. The defense requested an additional instruction,
objected to the military judge’s intent to instruct on a lesser-included offense, but
did not object to the military judge’s intent to instruct the members on propensity
evidence. The military judge then provided to the parties a written draft copy of his
instructions, which included an instruction on propensity evidence under M.R.E.
413. After a nearly two-hour recess, the defense renewed its objection to instructing
on a lesser-included offense and proposed specific changes to those parts of the
military judge’s instructions that addressed uncharged misconduct (pursuant to
M.R.E. 404(b)), but did not object to the military judge’s decision to instruct the
panel under M.R.E. 413. After the military judge instructed the panel, he
specifically asked if either party objected to the instructions as given. Again,
neither side made any objection.

      Specifically, the military judge instructed the panel that:

             Evidence that the accused committed rape on divers
             occasions alleged in The Specification of Charge I may
             have no bearing on your deliberations in relation to any of
             the allegations of forcible sodomy in the Specifications of
             Charge II unless you first determine by a preponderance of
             the evidence that [it] is more likely than not that the
             offenses alleged in The Specification of Charge I
             occurred. If you determine by a preponderance of the
             evidence the offenses alleged in The Specification of
             Charge I occurred, even if you’re not convinced beyond a


2
  We note that a different military judge presided over the motions session than at
trial.
                                           3
WILLIAMS — ARMY 20130582

             reasonable doubt that the accused is guilty of those
             offenses, you may nonetheless then consider the evidence
             of those offenses for its bearing on any matter to which it
             is relevant in relation to the forcible sodomys [sic] alleged
             in Charge II. You may also consider the evidence of such
             other acts of sexual assault for its tendency, if any, to
             show the accused’s propensity or predisposition to engage
             in sexual assault.

             You may not, however, convict the accused solely because
             you believe he committed these other offenses or solely
             because you believe the accused has a propensity or
             predisposition to engage in sexual assault. In other words,
             you cannot use this evidence to overcome a failure of
             proof in the government’s case, if you perceive any to
             exist. The accused may be convicted of an alleged offense
             only if the prosecution has proven each element beyond a
             reasonable doubt.

             Each offense must stand on its own and proof of one
             offense carries no inference that the accused is guilty of
             any other offense. In other words, proof of one sexual
             assault creates no inference that the accused is guilty of
             any other sexual assault. However, it may demonstrate
             that the accused has a propensity to commit that type of
             offense. The prosecution’s burden of proof to establish
             the accused’s guilt beyond a reasonable doubt remains as
             to each and every element of each offense charged. Proof
             of one charged offense carries with it no inference that the
             accused is guilty of any other charged offense.

       Interestingly, the military judge did not provide a similar detailed M.R.E. 413
propensity instruction regarding Charge II (forcible sodomy) and its specifications
and how those offenses could be used by the panel in relation to its deliberations on
the Specification of Charge I (rape) or with respect to individual specifications
within Charge II. See United States v. James, 63 M.J. 217, 221-22 (C.A.A.F. 2006)
(“[T]he ‘one or more offenses’ language of M.R.E. 413 and M.R.E. 414 is no more
temporally restrictive than the “other crimes” language of M.R.E. 404(b)” which
generally is not limited to prior acts.).
       On appeal, appellant argues the military judge committed error when he
instructed the panel on propensity evidence without making an explicit ruling under
M.R.E. 413.




                                           4
WILLIAMS — ARMY 20130582

                                   II. LAW
      Under M.R.E. 413, in any case where an accused is charged with a sexual
offense, evidence of an accused’s commission of another sexual offense “is
admissible and may be considered for its bearing on any matter to which it is
relevant.” Mil. R. Evid. 413(a). Appellant points us to United States v. Myers, 51
M.J. 570 (N.M. Ct. Crim. App. 1999), for the proposition that it is improper to use
M.R.E. 413 as a vehicle to show that evidence of an accused’s commission of a
charged offense may be used to demonstrate the propensity to commit another
charged offense. However, in an opinion published subsequent to appellant’s filing,
the Navy-Marine Court of Criminal Appeals explicitly rejected Myers. United States
v. Bass, 74 M.J. 806, 816 (N.M. Ct. Crim. App. 2015). Recently, this court similarly
determined that evidence under M.R.E. 413 applies to both uncharged and charged
misconduct. United States v. Barnes, 74 M.J. 692 (Army Ct. Crim. App. 2015), pet.
denied, 75 M.J. 27 (C.A.A.F. 28 Jul. 2015); see also United States v. Hills, ARMY
20130833, 2015 CCA LEXIS 268 (Army Ct. Crim. App. 25 Jun. 2015) (mem. op.)
review granted, 2016 CAAF LEXIS 55 (C.A.A.F. 19 Jan. 2016). 3

       Before admitting evidence under M.R.E. 413, several threshold findings are
required. 4 They are: 1) that the accused is charged with an offense of sexual assault;

2) that the evidence proffered is “evidence of the defendant’s commission of another
offense of . . . sexual assault”; and 3) as with all evidence, the evidence must have
the “tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence.” United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000); Mil. R. Evid.

3
  Hills involved the use of M.R.E. 413 evidence to show the appellant’s propensity
“involving three charged sexual offenses . . . against the same victim in the same
place during an approximate two-hour window of opportunity.” 2015 CCA LEXIS
268 at *18. Although not presented by this case, as offenses become closer in time
and space, the concept of propensity begins to merge with intent and ultimately with
the res gestae of the offense.
4
  The posture of the rule suggests that the burden is first on the defense to object to
the consideration of evidence under M.R.E. 413. The rule, for example, requires the
government to provide notice to the defense but does not require notice to the court.
Mil. R. Evid. 413(b). Additionally, the rules of evidence do not require a moving
party to file a motion to admit evidence that “is admissible” under the rules. Mil. R.
Evid. 402; Mil. R. Evid. 413(a). However, our superior court has indicated that the
trial judge must make “threshold” findings before admitting evidence under M.R.E.
413. United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000). It is unclear
whether Wright intended for this to be a sua sponte requirement placed on the
military judge (which would inferably require the government to provide notice to
the court) or whether these threshold findings are necessary only upon a motion by
the defense to exclude the evidence.
                                           5
WILLIAMS — ARMY 20130582

413(a); Mil. R. Evid. 401; Mil. R. Evid. 402. “Additionally, the court must apply a
balancing test under M.R.E. 403.” Wright, 53 M.J. at 482. In other words, evidence
submitted under M.R.E. 413 must be both logically relevant under M.R.E. 401 and
402 and legally relevant under M.R.E. 403.

       In Wright, our superior court identified a non-exhaustive list of some of the
things a court should consider when conducting a M.R.E. 403 balancing test in this
context. These factors include: 1) the strength of the evidence of the other act; 2)
the probative weight of the evidence; 3) the potential for less prejudicial evidence;
4) the distraction of the factfinder; 5) the time needed for proof of the prior conduct;
6) temporal proximity; 7) frequency of the acts; and 8) presence or lack of
intervening circumstances and the relationship between the parties. Id. at 482.

       “[T]he judge has substantial discretionary power in deciding on the
instructions to give.” United States v. Damatta-Olivera, 37 M.J. 474, 478 (C.M.A.
1993). We review a military judge’s non-mandatory panel instructions for an abuse
of discretion and the correctness of the instructions actually given de novo. United
States v. Davis, 75 M.J. 537 (Army Ct. Crim. App. 2015); see also United States v.
Forbes, 61 M.J. 354, 358 (C.A.A.F. 2005). In a case of unpreserved error when
there was no objection to the instructions, we review for plain error. United States
v. Payne, 73 M.J. 19, 22-23 (C.A.A.F. 2014) (“Where there is no objection to an
instruction at trial, we review for plain error.”).

       In evaluating non-constitutional error, we must determine whether the
instructional error had “substantial influence” on the findings. United States v.
Gibson, 58 M.J. 1, 7 (C.A.A.F. 2003) (internal quotation marks omitted) (quoting
Kotteakos v. United States, 328 U.S. 750, 765 (1946)). However, if we find error
such that it rises to a constitutional dimension, we may only affirm the affected
findings of guilty if we determine the error was harmless beyond a reasonable doubt.
See Chapman v. California, 386 U.S. 18, 24 (1967); United States v. Kreutzer, 61
M.J. 293, 298–99 (C.A.A.F. 2005). To find instructional error of a constitutional
dimension, our court would have to find “a reasonable likelihood that the jury has
applied the challenged instruction in a way that violates the Constitution.” Estelle v.
McGuire, 502 U.S. 62, 72 (1991) (internal quotation marks omitted) (quoting Boyde
v. California, 494 U.S. 370, 380 (1990)).

                               III. DISCUSSION
                             A. Standard of Review

       As an initial matter, we find that appellant forfeited any instructional error
with regards to M.R.E. 413 by repeatedly failing to object to the military judge’s
instructions. R.C.M. 920(f). While the defense filed a motion requesting a ruling on
the permissible use of the M.R.E. 413 evidence, the military judge indicated that the
issue was not yet “ripe” as this was an instructional issue. During the fifteen months


                                           6
WILLIAMS — ARMY 20130582

that separated the motions session and the military judge’s findings instructions, 5 the
defense did not again raise the issue of propensity or object to the military judge’s
instructions on findings. Accordingly, although we consider appellant’s assigned
error on its merits, we initially review for plain error. As we do not find error, we
cannot find plain error. In the present case, appellant complains in his assigned
error that the military judge did not articulate his M.R.E. 403 balancing test on the
record prior to instructing the members. Of course, had appellant objected to the
instruction we would have a developed record on that very issue one way or the
other.

                    B. The 403 Balancing Test In Cases Not
                       Involving Uncharged Misconduct.

       In a case where the application of M.R.E. 413 involves only charged
misconduct, we agree with the military judge that this is not a matter of
admissibility, but is rather one of instructions. With regard to charged offenses, the
evidence is admissible (or not) regardless of the application of M.R.E. 413. Military
Rule of Evidence 413(a) provides that evidence of a commission of sexual assault
“is admissible” and may be considered “for its bearing on any matter to which it is
relevant.” Stated differently, in the case of uncharged misconduct, the focus is on
the first part of the sentence (whether the evidence “is admissible?”). Whereas in
the case of charged misconduct, the focus is on the latter half of the sentence (for
what purposes and for which offenses is evidence—already admitted—relevant, both
logically and legally?).

       In this case, the military judge was required to conduct an M.R.E. 403
balancing test not to determine the admissibility of the evidence, but rather to
address the purposes for which the evidence could be used. If the use of propensity
evidence is substantially more prejudicial than probative under M.R.E. 403, the
military judge should instruct the panel that they may not consider it for such a
purpose. Mil. R. Evid. 105 (“[w]hen evidence which is admissible as to . . . one
purpose but not admissible as to . . . another purpose is admitted, the military judge,
upon request, shall restrict the evidence to its proper scope and instruct the members
accordingly.”). 6



5
 The Article 39(a), UCMJ, motions session was held on 21 March 2012. The parties
discussed instructions on 20 June 2013.
6
  When instructing members about applying evidence from one offense to other
offenses, this type of limiting instruction is often referred to as a “spillover”
instruction. See Dept. of Army, Pam. 27-9, Legal Services: Military Judges’
Benchbook [hereinafter Benchbook], para. 7-17 (10 September 2014).



                                           7
WILLIAMS — ARMY 20130582

              C. Applying the M.R.E. 403 Balancing Test to This Case

      Here, as in Barnes, the military judge did not articulate his M.R.E. 403
balancing test on the record. 7 74 M.J. at 699. Nonetheless, “Military judges are
presumed to know the law and to follow it absent clear evidence to the contrary.”
United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007).

       As we stated in Barnes “[w]hen a military judge is required to conduct a
balancing test but does not sufficiently articulate his analysis on the record, his
evidentiary ruling will receive less deference on appeal.” Barnes, 74 M.J. at 699
(internal citations omitted). “As the military judge did not address his balancing test
on the record, we have nothing to which we can give deference, and so, we will
evaluate the use of the evidence based upon the record.” Id.; see also United States
v. Berry, 61 M.J. 91, 96 (C.A.A.F. 2005) (“Where the military judge is required to
do a balancing test under M.R.E. 403 and does not sufficiently articulate his
balancing on the record, his evidentiary ruling will receive less deference from this
court.”).

       Even a cursory weighing of the Wright factors reveals that their application is
substantially different when addressing charged vice uncharged misconduct. When
the government seeks to introduce evidence of uncharged sexual offenses, the
government must introduce witnesses and evidence that have no direct connection to
the charged offenses. Depending on the facts of the case, the potential for unfair
prejudice, confusion of the factfinder, and waste of time may be easily established.
Whereas, when applying M.R.E. 413 to charged offenses—as no new evidence is
introduced—such considerations have less significance. If the evidence is already
admitted to prove the charged offense, it is less likely that any application of M.R.E.
413 would cause additional delay or confusion. See Barnes, 74 M.J. at 700 (“Three
of these [Wright] factors: the potential for less prejudicial evidence; the possible
distraction of the fact finder; and the time needed for proof of the prior conduct, are
arguably only applicable to the admission of uncharged misconduct and not
particularly helpful in a case involving charged misconduct.”). Additionally, in
cases where the application of M.R.E. 413 evidence to charged offenses is overly-


7
  However, the record amply demonstrates that the military judge was familiar with
the proper standard. During the testimony of appellant’s first wife, she described
multiple rapes but also gave a detailed description of one circumstance where she
was able to fight appellant off. The defense objected to the testimony of an
“attempted rape” as “uncharged misconduct.” In overruling the objection, the
military judge put on the record his analysis that an attempted rape was admissible
under M.R.E. 413, to include an abbreviated analysis under M.R.E. 401, 402, and
403. We note that attempted rape is a lesser-included offense of rape. See UCMJ
art. 79.



                                           8
WILLIAMS — ARMY 20130582

prejudicial, one possible remedy is severance. See Rule for Courts-Martial
[hereinafter R.C.M.] 906(b)(10). 8

       Weighing the facts in the record under the M.R.E. 403 balancing test, we find
that the evidence in question was far more probative than prejudicial. There were
substantial similarities between the victims of the charged offenses. Both women
were young and married to appellant at the time of the respective offenses. In both
marriages, appellant exercised excessive control over their lives by requiring them
to wear their hair in a certain manner and limiting their contact with others. Both
women described sexual assaults that were preceded by physical abuse and appellant
drinking heavily and watching pornographic videos. As witnesses, they testified
credibly to an abusive sexual relationship that spanned years and also provided
specific examples of appellant’s criminal conduct, to include grabbing and pulling
their hair to physically control them during sexual intercourse. While appellant’s
first wife testified to instances of vaginal rape and appellant’s second wife described
instances of forcible anal sodomy, we find this distinction to be without a
meaningful difference under these circumstances. Their testimony provided strong
evidence of the offenses and was probative of appellant’s propensity to engage in
similar conduct.

       With regard to time, there is a break of approximately four years and nine
months between the charged offenses. 9 While the probative value of M.R.E. 413
evidence tends to dissipate over time, a gap of nearly five years does not
significantly diminish the probative weight of the evidence. See, e.g., United States
v. Bailey, 55 M.J. 38, 41 (C.A.A.F. 2001) (prior sexual misconduct occurring up to
ten years prior to the charged offenses admissible under Mil. R. Evid. 413).

       In sum, applying the pertinent Wright factors, we find the similarities are such
that the probative value of the evidence is not substantially outweighed by the
danger of unfair prejudice. The military judge did not err in determining that—in
accordance with Mil. R. Evid. 413—the panel could use evidence of appellant’s
rapes of SW in their deliberations on the sodomy offenses he was charged with
committing against TW.

                           D. The Military Judge’s Instructions

      Having determined the military judge did not err in deciding to give an
M.R.E. 413 instruction, we must now consider the substance of the instructions that
were given.

8
    Appellant did not move for severance of the offenses in this case.
9
 Appellant was convicted of raping his first wife on divers occasions between on or
about 7 July 2000 and on or about 1 January 2003. The four specifications of
forcible sodomy covered a period that began on or about 21 September 2007 and
ended on or about 28 March 2011.
                                            9
WILLIAMS — ARMY 20130582

       In Barnes, we noted the instruction given by the military judge was “not a
model of clarity,” “internally contradictory,” and was “nonsensical.” Barnes, 74
M.J. at 700, 701 n.5. Specifically, we found that instructing panel members that
“proof of one offense carries no inference that the accused is guilty of another
sexual assault” to be the “opposite” of the purpose of propensity evidence. Id. at
700-01 (citing the Benchbook, para. 7-13-1 n.4.2). That is, the military judge in
Barnes instructed panel members that they could consider M.R.E. 413 propensity
evidence and shortly thereafter instructed them that they could not. As we noted in
Barnes, “Congress has said that in a criminal trial for an offense of sexual assault, it
is not improper to draw the inference that the defendant committed this sexual
assault because he had the propensity to do so.” Id. at 701 (quoting United States v.
Rogers, 587 F.3d 816, 822 (7th Cir. 2009)).

       However, what we did not specifically address in Barnes was that it was this
court that not only suggested but required that exact instruction. See United States
v. Dacosta, 63 M.J. 575, 583 (Army Ct. Crim. App. 2006) (“Therefore, for all cases
tried on or after ninety days from the date of this opinion . . . [the military judge]
shall inform the panel members . . . .”). As an appendix to the opinion in Dacosta,
this court attached a suggested instruction which was then incorporated into the
Benchbook with only minimal changes. Id. at 584; See Benchbook, para. 7-13-1.

       As a result, while Barnes found the Dacosta instruction to be problematic,
Barnes did not explicitly eliminate the requirement in Dacosta for such an
instruction. For this reason—and because we find additional concerns with our
holding in Dacosta—we revisit Dacosta today.

       In addition to the contradictory language discussed in Barnes, in Dacosta we
also required a military judge to instruct a panel that “the Rule 413 evidence should
have no bearing on their deliberations unless they determine the other offense
occurred.” DaCosta, 63 M.J. at 583. In the proposed instruction, we suggested the
panel make this determination “by a preponderance of the evidence.” Id. at 584. If
the purpose of that instruction was to tell the panel that they should give no weight
to evidence they do not believe to be true, the instruction is obvious to the point of
being a truism. Such an instruction would be equally applicable to all forms of
evidence. However, our opinion in Dacosta went further and mandated “a
determination.” Id. at 583.

       The problem with requiring a “determination” by a preponderance is that this
would appear to require a finding; either by each member individually or by the
panel as a whole. Article 52(c), UCMJ, seems to direct the latter as all “questions to
be decided by the members” other than votes on the findings and sentence, “shall be
determined by a majority vote.” That is, by requiring that the members make a
preliminary decision about the weight to be given certain evidence, Dacosta appears
to require that the panel formally vote on the matter before voting on the ultimate
findings of guilt.

                                           10
WILLIAMS — ARMY 20130582

        More concerning is that our opinion in Dacosta appears to have been based on
a desire to know the results of such a determination by the panel. In Dacosta, we
justified our requirement for the proposed M.R.E. 413 instructions by reasoning that
without such instructions “[a]n appellate court would . . . be unable to determine
upon which evidence (e.g., “propensity”) a panel based its findings of guilty.”
Dacosta, 63 M.J. at 582-83. In other words, we appeared to see a need to know
whether the panel members credited the M.R.E. 413 evidence or not. Such a
requirement, if that is what Dacosta intended, absent a statutory or regulatory basis,
see, e.g., R.C.M. 1004(b)(4), is an improper breach of panel member deliberations.
See also R.C.M. 923 (Impeachment of findings); Mil. R. Evid. 509 (Deliberations of
courts and juries). We routinely review the decisions of panels without an
accounting of how the panel weighed the evidence. Cf. United States v. Walters, 58
M.J. 391, 396 (C.A.A.F. 2003) (requiring such an accounting when the members
acquit an accused of some conduct by striking the words “on divers occasions.”).

       The requirement that a panel make a preliminary determination by a
preponderance before considering evidence under M.R.E. 413 likely comes from an
application of Huddleston v. United States, 485 U.S. 681 (1988). There, a
unanimous Supreme Court determined that it was improper for the trial judge to
make a preliminary preponderance determination before submitting evidence to the
jury that the defendant had committed similar (uncharged) acts. 10 Id. at 689. The
Court’s analysis concluded that the trial court does not make a preliminary ruling
but “simply examines all the evidence in the case and decides whether the jury could
reasonably find the conditional fact . . . by a preponderance of the evidence.” Id. at
690 (emphasis added).

        However, Huddleston did not require that the jury be instructed that they must
make a preponderance determination before they may consider the evidence. And,
notably, neither this court nor our superior court has ever required such a
determination when addressing M.R.E. 404(b) evidence—the military analogue of
the federal rule of evidence in question in Huddleston. The focus in Huddleston was
that it is the jury, not the judge, who determines the weight to be applied to the
evidence once admitted. In contrast, the judge’s role is limited to that of
gatekeeper; determining whether a jury “could reasonably find” the evidence
credible when ruling on admissibility of that evidence. Id.

       In United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007), our superior court
was presented with the issue of how to instruct a panel on issues relating to M.R.E.
413 and M.R.E. 414 and noticeably did not adopt Dacosta. Instead, the United
States Court of Appeals for the Armed Forces (C.A.A.F.) “note[d]” portions of the


10
 Huddleston involved application of Federal Rule of Evidence 404(b) (“Crimes,
Wrongs, or Other Acts”). 485 U.S. at 685.



                                          11
WILLIAMS — ARMY 20130582

Decosta instruction, but then pointed out that the 10th Circuit had approved a
“different formulation” of the instruction 11 in United States v. McHorse, 179 F.3d
889, 903 (10th Cir. 1999). Id. at 56, 56 n.4. 12 The C.A.A.F. did, however,
emphasize that “where, as here, the members are instructed that M.R.E. 414
evidence may be considered for its bearing on an accused’s propensity to commit the
charged crime, the members 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] the factfinder may not convict on the basis of
propensity evidence alone.” Id. at 56. That is, while instructions are necessary to
properly guide a panel on how to consider M.R.E. 413 evidence, the C.A.A.F. did
not adopt the requirement for the more lengthy instructions that we promulgated in
Dacosta.

       Accordingly, as the instructions required by Dacosta remain problematic in
numerous respects, 13 we overturn the requirement for the specific instructions
required in that decision.

       To be clear, nothing in this opinion removes the requirement that a military
judge must provide appropriate instructions to the panel. R.C.M. 920(a). While
“the law does not mandate a formulaic instruction,” an instruction on M.R.E. 413 or
M.R.E. 414 evidence must still inform the panel that: 1) an accused may not be
convicted based on propensity evidence alone; and 2) that M.R.E. 413 or M.R.E. 414
evidence does not relieve the government of its burden to prove every element of
every offense charged. Schroder, 65 M.J. at 56. While the instruction approved by
the 10th Circuit in McHorse provides an adequate template, having already once
waded too far from shore, we decline to mandate any specific wording or contents
beyond what our superior court directed in Schroder.



11
  McHorse entailed a jury instruction addressing evidence admitted pursuant to
Federal Rule of Evidence 414(a) (“Permitted Uses” of “Similar Crimes in Child
Molestation Cases”). 179 F.3d at 903.
12
  Schroder involved evidence admitted under M.R.E. 414, which in all relevant
respects is the same as M.R.E. 413. 65 M.J. at 52.
13
  The Dacosta instructions also require that the panel be instructed that the M.R.E.
413 evidence only be considered on “the sexual assault offenses charged” and that
the “evidence has no bearing on any other offense charged.” Dacosta, 63 M.J. at
583. This is a substantial narrowing of Mil. R. Evid. 413, which clearly states that
the evidence “may be considered for its bearing on any matter to which it is
relevant.” Mil. R. Evid. 413(a). While it will often be the case that the legal
relevance of M.R.E. 413 evidence is limited to other sexual assault offenses, our
opinion in Dacosta did not explain why we definitively limited the scope of M.R.E.
413 in all cases, preventing a case-by-case analysis.
                                         12
WILLIAMS — ARMY 20130582

                                     E. Prejudice

       As discussed above, we find significant problems with the instructions given
in this case. As in Barnes, however, the instructional error either accrued to the
benefit of appellant or had no appreciable effect on the court-martial. To the degree
that the instructions were in error, they erred in telling the panel that they could not
consider propensity evidence. Accordingly, we find beyond a reasonable doubt that
appellant was not prejudiced by any instructional error.

                                 IV. CONCLUSION

   The findings and sentence are correct in law and fact and are AFFIRMED.

      Senior Judge HAIGHT and Judge PENLAND concur.


                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:



                                        MALCOLM
                                        MALCOLM H.  H. SQUIRES,
                                                       SQUIRES, JR.
                                                                JR.
                                        Clerk of Court
                                        Clerk of Court




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