                       UNITED STATES, Appellee

                                    v.

               Linwood W. BURTON Jr., Staff Sergeant
                     U.S. Air Force, Appellant

                              No. 07-0848
                         Crim. App. No. 36296

       United States Court of Appeals for the Armed Forces

                       Argued October 15, 2008

                       Decided January 15, 2009

RYAN, J., delivered the opinion of the Court, in which BAKER and
STUCKY, JJ., joined. EFFRON, C.J., filed a separate opinion
concurring in part and in the result. ERDMANN, J., filed a
separate opinion concurring in part and dissenting in part.


                                 Counsel


For Appellant: Mary T. Hall, Esq. (argued); Captain Anthony D.
Ortiz (on brief); Lieutenant Colonel Mark R. Strickland, Major
Shannon A. Bennett, and Captain Phillip T. Korman.

For Appellee: Captain Ryan N. Hoback (argued); Major Matthew S.
Ward and Colonel Gerald R. Bruce (on brief); Major Donna S.
Rueppell.


Military Judge:   Steven A. Hatfield




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Burton, No. 07-0848/AF


    Judge RYAN delivered the opinion of the Court.

    At different points during the closing argument on findings

in this case, trial counsel suggested that the members of the

panel could compare the similarities between charged offenses

for a propensity to commit “these types of offenses” and see the

accused’s modus operandi.    Although the charged offenses were

themselves the proper subject of closing argument, the

underlying conduct had not been offered or admitted under

Military Rules of Evidence (M.R.E) 404 or 413.    Trial counsel’s

invitation to the panel to compare the charged offenses to find

modus operandi or propensity was improper, but under the facts

of this case the military judge’s failure to sua sponte instruct

the panel on the use of propensity evidence or take other

remedial action did not constitute plain error.    The decision of

the United States Air Force Court of Criminal Appeals (CCA) is

affirmed.1




1
  On Appellant’s petition, we granted review of the following
issues:

     I.      WHETHER THE TRIAL COUNSEL ENGAGED IN IMPROPER ARGUMENT
             WHEN HE ARGUED THAT APPELLANT DEMONSTRATED A
             PROPENSITY TO ENGAGE IN SEXUAL ASSAULT.

     II.     ASSUMING ARGUENDO THAT IT WAS NOT IMPROPER FOR TRIAL
             COUNSEL TO ARGUE THAT APPELLANT HAD THE PROPENSITY TO
             COMMIT SEXUAL ASSAULTS, WHETHER THE MILITARY JUDGE
             ERRED BY FAILING TO GIVE AN ADDITIONAL INSTRUCTION ON
             THE USE OF PROPENSITY EVIDENCE.


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United States v. Burton, No. 07-0848/AF


                               I. Facts

    A general court-martial composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of rape,

sodomy,2 and indecent acts,3 in violation of Articles 120, 125,

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

920, 925, 934 (2000).   The sentence adjudged by the court-

martial included a dishonorable discharge, confinement for eight

years, forfeiture of all pay and allowances, and reduction to

the lowest enlisted grade.     The convening authority disapproved

the findings of guilt as to sodomy and indecent acts, approved

the findings of guilt as to rape, and approved the sentence as

adjudged with the exception of confinement in excess of seven

years.   The CCA affirmed.    United States v. Burton, No. ACM

36296 (A.F. Ct. Crim. App. July 16, 2007) (unpublished).

     Appellant’s convictions arose from two distinct incidents,

which were separated by several years.     The Government charged

Appellant with the forcible sodomy, indecent assault, and

attempted rape of SS, a U.S. civilian he met while on leave in

Venice, Italy, in 2000.4     In addition, the Government charged



2
  Appellant was charged with forcible sodomy in violation of
Article 125, UCMJ, but found guilty of the lesser included
offense of sodomy.
3
  Appellant was charged with indecent assault in violation of
Article 134, UCMJ, but found guilty of the lesser included
offense of indecent acts.
4
  Appellant was found not guilty of the attempted rape charge.


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United States v. Burton, No. 07-0848/AF


Appellant with the rape of Senior Airman DH, while both were

stationed at Yokota Airbase, Japan, in 2004.

     As is customary in the military justice system, the

convening authority referred all of the charges related to these

incidents to one court-martial.    See Rule for Courts-Martial

(R.C.M.) 307(c)(4); United States v. Weymouth, 43 M.J. 329, 335

(C.A.A.F. 1995) (recognizing the general policy of joining all

possible charges into a single court-martial).      Appellant did

not move to have the charges severed.      See R.C.M. 906(b)(10)

(allowing a motion to sever offenses to prevent manifest

injustice).   Following the presentation of evidence by the

prosecution and defense, the military judge instructed the

panel, warning that counsel’s closing arguments were not

evidence and that belief of guilt of one offense could not be

used as a basis for finding guilt of another offense -- a

standard “spillover” instruction.

     In the closing arguments that followed, the trial counsel

noted the military judge’s instruction that panel members could

not use guilt of one offense as proof of guilt of another

offense.   However, trial counsel told the panel it could “take

these things and compare them for [Appellant’s] propensity to

commit these types of offenses.”       He invited the panel to “take

both of [the victims’] stories and lay them next to each other

and compare them and see what this particular person’s M.O. is.”


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United States v. Burton, No. 07-0848/AF


Further, trial counsel highlighted several similarities from the

two incidents, including Appellant’s particular actions and the

victims’ physical appearance and vulnerability.    Defense counsel

neither objected to trial counsel’s statements nor requested

further instructions from the military judge.

                           II. Discussion

     When no objection is made during the trial, a counsel’s

arguments are reviewed for plain error.     United States v.

Schroder, 65 M.J. 49, 57-58 (C.A.A.F. 2007).     “Plain error

occurs when (1) there is error, (2) the error is plain or

obvious, and (3) the error results in material prejudice.”

United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005).      We

agree with Appellant that trial counsel’s closing argument was

improper, but disagree that the error was plain and obvious such

that the military judge was required to sua sponte give further

instructions or take other remedial measures.

     Counsel should limit their arguments to “the evidence of

record, as well as all reasonable inferences fairly derived from

such evidence.”    United States v. Baer, 53 M.J. 235, 237

(C.A.A.F. 2000).   In the instant case, evidence of the charged

offenses was properly admitted and a fair subject of argument.

The wrinkle is that trial counsel went further and encouraged

panel members to compare the similarities of two charged

offenses, pointed out several specific examples, and argued that


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United States v. Burton, No. 07-0848/AF


these similarities showed Appellant’s propensity to commit such

crimes.

     Our cases affirm the principle that an accused may not be

convicted of a crime based on a general criminal disposition.

See, e.g., United States v. Hogan, 20 M.J. 71, 73 (C.M.A. 1985)

(“[A]n accused must be convicted based on evidence of the crime

before the court, not on evidence of a general criminal

disposition.”); see also M.R.E. 404(a), (b) (generally

prohibiting the use of evidence of character or past crimes to

prove an accused acted in conformity therewith).     The Government

may not introduce similarities between a charged offense and

prior conduct, whether charged or uncharged, to show modus

operandi or propensity without using a specific exception within

our rules of evidence, such as M.R.E. 404 or 413.5    See United

States v. Wright, 53 M.J. 476, 480 (C.A.A.F. 2000) (noting

M.R.E. 413 “creates an exception to Rule 404(b)'s general

prohibition against the use of a defendant's propensity to

commit crimes”).   It follows, therefore, that portions of a

closing argument encouraging a panel to focus on such

similarities to show modus operandi and propensity, when made


5
  See, e.g., M.R.E. 404(a)(1), (2) (allowing character evidence
when offered first by the accused); M.R.E. 404(b) (allowing
evidence of other crimes to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake);
M.R.E. 413 (allowing evidence of prior sexual assaults when the
accused is charged with a sexual assault offense).


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United States v. Burton, No. 07-0848/AF


outside the ambit of these exceptions, is not a “reasonable

inference[] fairly derived” from the evidence, and was improper

argument.   Baer, 53 M.J. at 237.

       The CCA held that trial counsel’s argument was proper based

on M.R.E. 413.   The CCA noted that the evidence of Appellant’s

alleged assaults and attempted rape of SS in 2000, as sexual

assault offenses that occurred prior to the 2004 rape of SrA DH,

could have been introduced as propensity evidence under M.R.E.

413.   Burton, No. 36296, slip op. at 6.

       The problem with the CCA’s holding is simple –- this is not

an M.R.E. 413 case.   The evidence on which trial counsel was

commenting was primary proof of the charged offenses.     No

evidence was introduced as propensity evidence pursuant to

M.R.E. 413, and none of the procedural safeguards required as a

predicate to such introduction were followed.   See Schroder, 65

M.J. at 55 (requiring the military judge to make relevance and

prejudice determinations under M.R.E. 401, 402, and 403 before

admitting propensity evidence); Wright, 53 M.J. at 482-83

(same).   It was trial counsel’s improper argument that

introduced the issue of propensity, not the evidence.     As the

Government did not offer the evidence under M.R.E. 413, it did

not follow the steps required by M.R.E. 413.    Therefore, it may

not a posteriori justify its closing argument based on what it

might have done.


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United States v. Burton, No. 07-0848/AF


     Determining that trial counsel’s argument was improper,

however, does not answer the question whether it was plain and

obvious in the context of the entire trial that the military

judge needed to sua sponte give further instructions on the use

of propensity evidence.   See United States v. Young, 470 U.S. 1,

16 (1985) (“[W]hen addressing plain error, a reviewing court

cannot properly evaluate a case except by viewing such a claim

against the entire record.”).   An error is not “plain and

obvious” if, in the context of the entire trial, the accused

fails to show the military judge should be “faulted for taking

no action” even without an objection.   United States v. Maynard,

66 M.J. 242, 245 (C.A.A.F. 2008).    The relevant context includes

the evidence presented at trial and the instructions given by

the military judge.   See Darden v. Wainwright, 477 U.S. 168, 182

(1986).

     It was not plain and obvious under the facts of this case

that the military judge should have sua sponte given a

propensity instruction, as Appellant now contends.   First, as

noted above, the evidence of each distinct offense was properly

admitted and the fair subject of argument, but this was not an

M.R.E. 413 propensity evidence case.    The prosecution did not

attempt to offer evidence or get a ruling from the military

judge under M.R.E. 413 concerning propensity evidence.

Moreover, the “similar” conduct was charged and presented as two


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United States v. Burton, No. 07-0848/AF


separate offenses:    the majority of the evidence introduced by

the prosecution consisted of the testimony of two independent

victims, and at no time during the presentation of the evidence

did the prosecution compare the two charges or conflate the

evidence.   Cf. United States v. Haye, 29 M.J. 213, 214-15

(C.M.A. 1989) (finding error where the factual presentation of

the case made it impossible for a panel to separate one

specification from another).   Appellant has made no suggestion

that the evidence of each charge was “so merged into one that it

[was] difficult to distinguish.”       Id. at 215.

     Next, after the close of the presentation of evidence, the

military judge specifically instructed the panel as follows:

     An Accused may be convicted based only on evidence
     before the court. Each offense must stand on its own
     and you must keep the evidence of each offense
     separate. Stated differently, if you find or believe
     that the accused is guilty of one offense, you may not
     use that finding or belief as a basis for inferring,
     assuming, or proving that he committed any other
     offense. The burden is on the prosecution to prove
     each and every element of each offense beyond a
     reasonable doubt. Proof of one offense carries with
     it no inference that the accused is guilty of any
     other offense.

Although portions of trial counsel’s closing argument arguably

conflicted with this instruction, trial counsel specifically

referenced the instruction and stated he did not “intend for

[the panel] to take proof of one offense to find [Appellant]

guilty of another.”   The real risk presented by trial counsel’s



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United States v. Burton, No. 07-0848/AF


improper argument was that it would invite members to convict

appellant based on a criminal predisposition, not that members

would now perceive properly admitted direct evidence of charged

conduct as propensity evidence.    This greater risk was properly

addressed by the military judge’s spillover instruction.     The

military judge having instructed the panel that counsel’s

arguments were not evidence and given a general spillover

instruction, it was not plain and obvious that an additional

instruction was wanted or needed.      See United States v. Jenkins,

54 M.J. 12, 20 (C.A.A.F. 2000) (noting that panel members are

presumed to follow a military judge's instructions and holding

that any error from improper argument was cured by appropriate

instruction); Hogan, 20 M.J. at 73 (suggesting that a clear

instruction not to merge evidence substantially diminishes the

chance of improper spillover).

     In the context of the entire trial, including the distinct

and clearly defined evidence against Appellant on similar yet

separate offenses, the specific instructions to the panel, the

fact that neither trial nor defense counsel offered M.R.E. 413

propensity evidence or requested a propensity instruction, and

the fact that the comments of trial counsel were not so

egregious as to provoke an objection by trial defense counsel,

we do not believe that any error in trial counsel’s argument

rose to the level of plain error that would require the military


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United States v. Burton, No. 07-0848/AF


judge to sua sponte instruct on the proper use of propensity

evidence or take other remedial measures.   See Young, 470 U.S.

at 16, 20 (noting “it is particularly important for appellate

courts to relive the whole trial imaginatively and not to

extract from episodes in isolation,” and holding that argument

by counsel, though improper, was not plain error warranting

overturning the appellant’s conviction).

                         III. Conclusion

     For the reasons expressed above, we disagree with the

reasoning of the Air Force Court of Criminal Appeals, but find

no plain error in the court-martial.   The decision of the Air

Force Court of Criminal Appeals is affirmed.




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United States v. Burton, No. 07-0848/AF


     EFFRON, Chief Judge (concurring in part and in the result):

     I agree with the majority opinion that trial counsel erred

in urging the members to consider the two charged offenses as

propensity evidence.   For the reasons set forth below, I would

conclude that the generic spillover instruction given by the

military judge should have been supplemented by a tailored

instruction on the issue of propensity.   I agree that this case

may be affirmed because the instructional error was not

prejudicial under Article 59(a), 10 U.S.C. § 859(a) (2000).


The prosecution’s improper propensity argument

     Appellant’s court-martial involved two distinct allegations

of sexual misconduct -- the first charged as occurring in 2000

and the second charged as occurring in 2004.   The prosecution

introduced evidence related to each incident at the court-

martial, and the admissibility of such evidence is not the

subject of the present appeal.

     The issues on appeal pertain to the comments made in trial

counsel’s closing argument, in which counsel asked the court-

martial panel to “compare” the different charges for the purpose

of assessing Appellant’s “propensity to commit these types of

offenses” and his modus operandi.   As noted in the majority

opinion, the prosecution may not ask the panel to conclude that

an accused is guilty of one offense by citing similarities to
United States v. Burton, No. 07-0848/AF


another distinct offense unless:       (1) the argument involves

permissible use of the evidence, such as under an exception

provided by Military Rule of Evidence (M.R.E.) 404 (“Character

evidence not admissible to prove conduct; exceptions; other

crimes”) or M.R.E. 413 (“Evidence of similar crimes in sexual

assault cases”); and (2) the military judge has analyzed and

approved the use of the evidence in that manner under the

applicable safeguards.   United States v. Burton, 67 M.J. __ (6-

8) (C.A.A.F. 2009).

     In the Court of Criminal Appeals, Appellant contended that

trial counsel improperly asked the court-martial panel to view

the distinct offenses as evidence of Appellant’s propensity to

engage in sexual assault.   After noting that the defense had not

objected to the prosecution’s argument at trial, the Court of

Criminal Appeals reviewed the contention under a plain error

standard.   See United States v. Powell, 49 M.J. 460, 463-65

(C.A.A.F. 1998) (holding that plain error review entails

consideration of:   (1) whether there was error; (2) whether the

error was plain or obvious; and (3) whether the error materially

prejudiced the substantial rights of the accused); Article

59(a), 10 U.S.C. § 859(a) (2000).

     The Court of Criminal Appeals concluded that there was no

error because the use of propensity evidence is permissible

under M.R.E. 413 in a sexual assault case.      As noted in the


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United States v. Burton, No. 07-0848/AF


majority opinion, one problem with reliance on M.R.E. 413 in

this case is that the prosecution at trial did not follow the

required steps for use of propensity evidence under M.R.E. 413.

Burton, 67 M.J. at __ (7).    Of particular note, the prosecution

offered its propensity argument before the military judge could

make the requisite determinations as to relevance and prejudice

under M.R.E. 401, M.R.E. 402, and M.R.E. 403.   See Burton, 67

M.J. at __ (7).    A further problem is that even if the evidence

had been properly approved as propensity evidence, the military

judge did not provide the panel with an appropriate limiting

instruction tailored to the issue of propensity.   See United

States v. Schroder, 65 M.J. 49, 56 (C.A.A.F. 2007).

     The majority opinion concludes that trial counsel’s error

did not meet the second prong of the plain error test because,

in the context of the full trial, it was not plain or obvious

that the military judge should have given a propensity

instruction.   See Burton, 67 M.J. at __ (8).   In that regard,

the majority opinion notes that the evidence at issue was

admitted properly on the distinct offenses, the prosecution did

not conflate the separate offenses during the factual

presentation of the evidence, the evidence was not offered as

propensity evidence under M.R.E. 413, and the military judge

provided the members with an appropriate spillover instruction.

Id. at __ (8-9).    Although these considerations bear on the


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United States v. Burton, No. 07-0848/AF


third aspect of the plain error test -- whether any error by the

military judge materially prejudiced the substantial rights of

the accused -- they are not determinative on the question of

whether the military judge properly instructed the members in

this case.

     The prosecution improperly argued that although the members

could not “take proof of one offense to find [Appellant] guilty

of another,” they could “take these [charges] and compare them

for his propensity to commit these types of offenses.”    Without

a ruling by the military judge on relevance and prejudice under

M.R.E. 401, M.R.E. 402, and M.R.E. 403, trial counsel’s

propensity argument was not permissible under M.R.E. 413, either

directly or by analogy.   Moreover, the propensity argument did

not fit into any of the exceptions for character evidence under

M.R.E. 404.

     Trial counsel’s argument not only raised the subject of

propensity without the appropriate predicate ruling by the

military judge, but also placed the import of the military

judge’s spillover instruction at issue by suggesting that the

spillover instruction did not apply to propensity evidence.

Irrespective of whether the propensity argument was permissible

under M.R.E. 413 or impermissible under M.R.E. 404, the military

judge was required to give an appropriate tailored instruction

expressly addressing the subject of propensity.   See Schroder,


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United States v. Burton, No. 07-0848/AF


65 M.J. at 56 (stating, in a case where evidence could be used

to show propensity under the parallel propensity provisions of

M.R.E. 414, that the court-martial panel “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 that “the factfinder may

not convict on the basis of propensity evidence alone”); United

States v. Levitt, 35 M.J. 114, 120 (C.M.A. 1992) (stating, in a

case where the evidence could not be used to show propensity,

that “the instruction must expressly bar use of the evidence for

improper purposes, including proof of bad character or

propensity for crime”).   In the present case, the military

judge’s generic spillover instruction did not relieve him of the

responsibility to provide a specific instruction expressly

tailored to the subject of propensity.


Prejudice under the plain error standard

     Notwithstanding these errors, plain or otherwise, relief is

not warranted under the third prong of the plain error test

because the errors did not materially prejudice the substantial

rights of Appellant.   Although the military judge should have

supplemented the standard spillover instruction with a specific

instruction on propensity, the standard instruction provided the

panel with some guidance on the impermissibility of using one



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United States v. Burton, No. 07-0848/AF


charged offense as the basis for a finding of guilt on the other

charged offense.   Likewise, trial counsel limited the potential

effect of the improper argument by explicitly reminding the

members that they could not use their determination of guilt on

one offense to find guilt on the other.   Finally, the context of

the trial and the accumulation of distinct and clearly defined

evidence of the crimes committed against Senior Airman DH,

combined with the lack of defense objection to trial counsel’s

arguments and the members’ finding that Appellant committed only

consensual acts with SS, indicate that the improper statements

of trial counsel did not have a significant impact on the

members.   Accordingly, I agree that the findings and sentence

may be affirmed.




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United States v. Burton, No. 07-0848/AF


     ERDMANN, Judge (concurring in part and dissenting in part):

     I agree with the majority that trial counsel erroneously

invited the members to compare the evidence presented on each

offense to find propensity.   Had the trial counsel desired to

make that argument, he should have followed the procedural steps

of Military Rule of Evidence (M.R.E.) 413(b).   Had those

procedural steps been followed, the military judge would have

made the necessary threshold findings under M.R.E. 4131 and would

have conducted an M.R.E. 403 balancing analysis.   Because trial

counsel did not comply with the steps for presenting or arguing

propensity evidence, the military judge did not evaluate the

evidence for admissibility as propensity evidence.   Therefore,

trial counsel erred by invoking propensity in his argument.    I

do not agree that the risks created by the improper argument

were properly addressed by the spillover instruction.   However,

I need not determine whether trial counsel’s error was a plain

error requiring relief because I conclude that the military




1
  Those required findings are that: “(1) [t]he accused is
charged with an offense of sexual assault” defined by M.R.E.
413(d); (2) “[t]he evidence proffered is ‘evidence of the
defendant’s commission of another offense of . . . sexual
assault’; and (3) [t]he evidence is relevant under [M.R.E.] 401
and [M.R.E.] 402.” United States v. Wright, 53 M.J. 476, 482
(C.A.A.F. 2000) (quoting United States v. Guardia, 135 F.3d
1326, 1328 (10th Cir. 1998) (requiring threshold findings before
admitting evidence under M.R.E. 413); see also United States v.
Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001).
United States v. Burton, No. 07-0848/AF


judge committed plain error by failing to provide a propensity

instruction to the members.

     Before closing arguments, the military judge’s instructions

to the members included a standard “spillover” instruction.

Specifically, the military judge stated, “[I]f you find or

believe that the accused is guilty of one offense, you may not

use that finding or belief as a basis for inferring, assuming,

or proving that he committed any other offense.”   Despite this

instruction, trial counsel urged the members in his closing

argument to compare the offenses because “[i]t will also show

you that he has [the] propensity to engage in this sort of

conduct.”   (emphasis added).   Trial counsel went on to urge that

consideration of this propensity evidence would not conflict

with the military judge’s spillover instruction:

     Now, before I get to [a comparison of the similarities
     between the two alleged sexual assaults] I want to preface
     – this was something the judge told you, I don’t intend for
     you to take proof of one offense to find him guilty of
     another, the judge told you that you can’t do that. But
     what you can do is you can take these things and compare
     them for his propensity to commit these types of offenses.
     That’s perfectly acceptable when you’re deliberating.

Emphasis added.

     Not only was trial counsel’s invitation to compare the

offenses for propensity in direct conflict with the spillover

instruction given by the military judge, he erroneously

explained to the members that they could consider the propensity



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United States v. Burton, No. 07-0848/AF


evidence despite the spillover instruction.    The military judge

should have corrected that conflict sua sponte by providing a

propensity instruction.

     Propensity evidence may be considered by the members to

prove a charged substantive offense of sexual assault when the

procedures of M.R.E. 413 have been followed.   See United States

v. Schroder, 65 M.J. 49, 52 (C.A.A.F. 2007).    However, even when

the procedures of M.R.E. 413 have been complied with, this court

has further held that the procedural safeguards “required to

protect the accused from unconstitutional application of M.R.E.

413 . . . include the requirement of proper instructions.”    Id.

at 55.

     Without deciding whether the trial counsel’s propensity

argument constituted plain error, absent an instruction as to

the proper consideration of propensity evidence, the members had

no guidelines as to how to resolve the conflict between the

military judge’s instruction and trial counsel’s argument that

the instruction could be ignored in this situation.2   The

propensity instruction was necessary to prevent the members from

convicting Burton on the basis of other than direct evidence of

the charged offense and to preclude “reliev[ing] the government

of its constitutional burden to prove every element of the

2
  For an example of a propensity instruction, see Dep’t of the
Army, Pam. 27-9, Legal Services, Military Judges’ Benchbook ch.
7, para. 7-13-1, n.4 (2002).


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United States v. Burton, No. 07-0848/AF


charged offense beyond a reasonable doubt.”   See id.3     Failure to

instruct the members how they should properly consider

propensity to commit sexual assault was, under the circumstances

of this case, error that was plain and obvious.

     In light of the fundamental, constitutional nature of this

error, the Government has the burden of establishing that the

error had “no causal effect upon the findings.”    United States

v. Othuru, 65 M.J. 375, 377 (C.A.A.F. 2007) (citing United

States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004); United

States v. Bins, 43 M.J. 79, 86 (C.A.A.F. 1995)).    The Government

must demonstrate that there is no reasonable possibility that

the lack of instruction contributed to the contested findings of

guilty.   United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F.

2005).    Because the members lacked any guidance in the

evaluation of trial counsel’s invitation to consider propensity,

there is no assurance that the Government was held to its burden

of proof or that Burton was convicted on direct evidence of the

charged rape rather than upon the improper use of propensity

derived from the other charged offense.   The error was not

harmless beyond a reasonable doubt.


3
  As this court said in Schroder, “[I]t is essential that . . .
the members . . . 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.
Moreover, the factfinder may not convict on the basis of
propensity evidence alone.” Id. at 56.


                                  4
United States v. Burton, No. 07-0848/AF


     I would reverse the decision of the United States Air Force

Court of Criminal Appeals, set aside the findings and sentence,

and authorize a rehearing.




                                5
