UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                               MULLIGAN, CAMPANELLA, 1 WOLFE
                                    Appellate Military Judges

                                 UNITED STATES, Appellee
                                             v.
                          Specialist JUVENTINO TOVARCHAVEZ
                               United States Army, Appellant

                                         ARMY 20150250

                   Headquarters, 8th Theater Sustainment Command
                         Gregory Gross, Military Judge (trial)
                        Timothy P. Hayes, Jr. (DuBay hearing)
      Colonel Anthony T. Febbo, Staff Judge Advocate (pretrial & recommendation)
      Lieutenant Colonel Lajohnne A.W. Morris, Staff Judge Advocate (addendum)

For Appellant: Captain Ryan T. Yoder, JA; Major Brian J. Sullivan, JA (on brief);
Captain Ryan T. Yoder, JA; Major Brian J. Sullivan, JA (on reply); Lieutenant
Colonel Melissa R. Covolesky, JA; Captain Ryan T. Yoder, JA; Major Brian J.
Sullivan, JA (on brief on specified issues); Lieutenant Colonel Christopher D.
Carrier, JA; Captain Cody D. Cheek, JA; Major Brian J. Sullivan, JA (on reply brief
on specified issues); Major Brendan R. Cronin, JA; Major Brian J. Sullivan, JA (on
supplemental brief); Major Brendan R. Cronin, JA; Major Todd W. Stewart, JA;
Major Brian J. Sullivan, JA (on supplemental reply brief).

For Appellee: Lieutenant Colonel A.G. Courie, III, JA; Major Melissa Dasgupta
Smith, JA; Captain Christopher A. Clausen, JA (on brief); Major Michael E. Korte,
JA; Captain Christopher A. Clausen, JA (on brief on specified issues); Colonel Tania
M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick,
JA; Captain Joshua Banister, JA (on supplemental brief).

                                            19 July 2018

                                   ---------------------------------
                                     MEMORANDUM OPINION
                                   ---------------------------------

     This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.




1
    Senior Judge Campanella took action on this case prior to leaving the court.
TOVARCHAVEZ—ARMY 20150250


WOLFE, Judge:

       This case returns to us for completion of our Article 66, Uniform Code of
Military Justice, 10 U.S.C. § 866 [UCMJ], review, after a DuBay 2 fact-finding
hearing. In our original decision we addressed appellant’s claim of instructional
error pursuant to United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), whether
appellant was entitled to a mistake of fact instruction, and whether appellant’s
defense counsel were ineffective. We resolved the first two issues against appellant,
but directed a DuBay hearing to address the claim of ineffective assistance of
counsel. United States v. Tovarchavez, ARMY 20150250, 2017 CCA LEXIS 602
(Army Ct. Crim. App. 7 Sep. 2017).

                                  BACKGROUND

       Appellant was charged with two specifications of sexual assault in violation
of Article 120, UCMJ, for sexually assaulting his fellow soldier, Specialist (SPC)
JR, on two separate occasions. An enlisted panel of a general court-martial
convicted appellant only of the latter instance. The convening authority approved
the adjudged sentence to a dishonorable discharge, confinement for two years, total
forfeiture of pay and allowances, and reduction to the grade of E-1.

       At the completion of the DuBay hearing, we directed additional briefing on
the Hills assignment of error based on developments in the case law since we issued
our initial opinion. We also granted appellant’s motion to file supplemental
briefings regarding the claim of ineffective assistance of counsel. 3 With the record
now returned to this court, we again resolve the Hills issue and the ineffective
assistance of counsel claim against appellant and adopt our previous opinion with
respect to the mistake of fact instruction.




2
    See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).
3
  Appellant also requested to file a supplemental brief on the Hills assignment of
error in light of our superior court’s decision in United States v. Guardado, 77 M.J.
90 (C.A.A.F. 2017). We received appellant’s motion just as we issued our order for
additional briefing. Thus, while we denied appellant’s motion, it was only because
it was mooted by our order on the same issue.




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                              LAW AND DISCUSSION

                                   A. The Hills Issue

      The military judge gave the panel in this case an instruction that was for all
substantive purposes identical to the instruction that the Court of Appeals for the
Armed Forces (CAAF) found to be error in United States v. Hills. 75 M.J. at 353.

       Appellant offered no objection to the instruction at trial. Thus, we test for
plain error. “[I]f the accused fails to preserve the instructional error by an adequate
objection or request, we test for plain error.” United States v. Williams, __ M.J. __,
2018 CAAF LEXIS 365, *7 (C.A.A.F. 27 Jun. 2018) (citing United States v. Davis,
76 M.J. 224, 229 (C.A.A.F. 2017)); see also United States v. Guardado, 77 M.J. 90,
93 (C.A.A.F. 2017).

       Of the three part plain error test, it is now well established that the Hills
instruction was error that is clear and obvious on appeal. Accordingly, this opinion
addresses only the third prong: prejudice. The question then becomes, “what is the
appropriate measure of assessing prejudice?”

       In this case of forfeited error, does this court determine whether the error was
harmless under Article 59(a), UCMJ? Or, as the forfeited error is constitutional, do
we determine whether the error was harmless beyond a reasonable doubt? Does
appellant have the burden of establishing plain error? Or, to sustain the conviction,
is the government required to prove constitutional harmlessness? 4

       We cannot avoid these questions because, in this case, the result turns on
which lens we use when assessing the evidence. There are cases where, in practice,
the standard for establishing prejudice is irrelevant to an appellate court’s
determination of the issue. For example, when an error is grossly prejudicial (or
harmless under any standard), settling on the correct standard does not change the
result. This is not such a case.

       Our resolution of the Hills error in this case turns entirely on determining the
appropriate test for prejudice of a forfeited constitutional error. In their briefs, both
parties assert the appropriate standard of review for a forfeited constitutional error
requires the government to show the error was “harmless beyond a reasonable


4
 Our discussion of the “burden” on a party should be understood in the context of
this court’s duty to conduct a de novo review of the record under Article 66(c),
UCMJ. Although we quote our superior court’s and federal court’s case law
containing references to a party’s “burden,” at least for an issue which does not
require reference to facts outside the authenticated record, the application of that
burden may be different in a Court of Criminal Appeals.




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doubt.” On the other hand, recent decisions by the CAAF have stated that the
inquiry is whether appellant has shown material prejudice to a substantial right.

       Determining the correct test changes both who has the burden of proof and
what they must prove. Is it appellant’s burden to show material prejudice to a
substantial right? Or, is it immaterial whether the error was preserved or
unpreserved and it is the government’s burden to prove beyond a reasonable doubt
that the error did not contribute to the verdict? There is a vast difference between
the two standards. Because we see room for reasonable disagreement–and our
dissenting colleague does indeed disagree–we discuss our analysis at some length.

                              1. United States v. Wolford 5

       In United States v. Wolford, the CAAF considered an instructional error that
amounted to a violation of the accused’s right to due process. That is, the erroneous
instruction was constitutional error, as in Hills. Indeed, Hills relied on Wolford in
determining the standard of review. Hills, 75 M.J. at 357. The Wolford opinion
contained a stand alone section on the standard of review for forfeited instructional
error, which stated in its entirety:

               Defense counsel did not object to the military judge’s
               instructions at the time of trial. Even so, “[t]his [c]ourt
               has determined that waiver must be established by
               ‘affirmative action of the accused’s counsel,’ and not by ‘a
               mere failure to object to erroneous instructions . . . .’”
               United States v. Smith, 50 M.J. 451, 455-56 (C.A.A.F.
               1999) (quoting United States v. Mundy, 2 C.M.A. 500,
               502, 9 C.M.R. 130, 132 (1953)) (emphasis in original).
               Accordingly, we review Wolford’s instructional claims de
               novo. Id. at 455. If instructional error is found, because
               there are constitutional dimensions at play, Wolford’s
               claims “must be tested for prejudice under the standard of
               harmless beyond a reasonable doubt.” United States v.
               Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005). “The inquiry
               for determining whether constitutional error is harmless
               beyond a reasonable doubt is ‘whether, beyond a
               reasonable doubt, the error did not contribute to the
               defendant's conviction or sentence.’” Id. (quoting United
               States v. Kaiser, 58 M.J. 146, 149 (C.A.A.F. 2003)).

Wolford, 62 M.J. at 420 (alteration in the original).



5
    62 M.J. 418 (C.A.A.F. 2006).




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       Under Wolford, there does not appear to any difference between preserved and
unpreserved constitutional error. Absent a precise affirmative waiver, we would
review questions “de novo” and review any error for constitutional harmlessness
regardless whether appellant affirmatively objected to the instruction or forfeited the
objection.

      We distinguish Wolford from this case for several reasons.

       First, Wolford was part of a line of cases that stood “for the proposition that
an appellant cannot forfeit an affirmative defense.” Davis, 76 M.J. at 229 (citations
omitted). If Wolford is part of a line of cases only addressing instructions on
affirmative defenses, then Wolford is not controlling when it comes to assessing
forfeited Hills error.

       Second, the CAAF has recently distanced itself from Wolford’s reasoning. In
Davis the CAAF included Wolford in a list of cases that went against the standard
articulated in R.C.M. 920(f), was against the “precise” reading of earlier cases, and
stood against “the great weight of our precedent clearly call[ing] for plain error
review.” Davis, 76 M.J. 229. According to Davis, a strict application of Wolford
would be against the majority of the CAAF’s case law.

       Third, consistent with the reasoning in Davis, in cases subsequent to Hills the
CAAF has applied a plain error test to forfeited Hills error. We discuss those cases
below.

       The dissent correctly notes that the CAAF has never explicitly overruled
Wolford. 6 Indeed, the CAAF, in Hills, cited Wolford for the standard of review used
in that case. When “instructional error is found [when] there are constitutional
dimensions at play, [the appellant’s] claims ‘must be tested for prejudice under the
standard of harmless beyond a reasonable doubt.’” Hills, 75 M.J. at 357 (citing
Wolford 62 M.J. at 420). 7




6
 It is not for this Court to determine that the CAAF has implicitly overruled its
precedent. Davis, 76 M.J. at 228 n. 2. Accordingly, we do not view the CAAF as
having overruled Wolford in Davis.
7
 Hills, of course, was a case of preserved error. We do not find Hills to be
controlling precedent in cases of unpreserved error.




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                                2. United States v. Paige 8

       In our initial opinion before remanding this case for a DuBay hearing, we
relied on United States v. Paige for the standard of review in cases of forfeited
constitutional error. There, a divided court applied a plain error standard of review.
Paige, 67 M.J. at 449. This is the same standard of review applied by the CAAF in
an earlier decision, United States v. Carter, wherein the court stated:

               The certified issue requires us to determine whether trial
               counsel’s statements amounted to an impermissible
               reference to Appellee’s Fifth Amendment right to not
               testify, or whether the statements were a fair response to
               the defense’s theory of the case. In the absence of
               objection, we review for plain error. R.C.M. 919(c);
               [United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F.
               2001)]. Appellee must show that there was error, that the
               error was plain, and that the error materially prejudiced
               his substantial rights. See United States v. Powell, 49
               M.J. 460, 463-65 (C.A.A.F. 1998). Once Appellee meets
               his burden of establishing plain error, the burden shifts to
               the Government to convince us that this constitutional
               error was harmless beyond a reasonable doubt. United
               States v. Carpenter, 51 M.J. 393, 396 (C.A.A.F. 1999).

61 M.J. 30, 33 (C.A.A.F. 2005). Unlike the decision in Wolford¸ the CAAF in Paige
clearly stated appellant’s burden to establish plain error. In our original opinion,
relying on the last sentence quoted above, we understood the test as first requiring
appellant to prove all three elements of plain error. That is, in order to establish
plain error, appellant must first establish material prejudice to a substantial right.
Only, “[o]nce [appellant] meets his burden of establishing plain error, [will] the
burden shift[] to the Government to convince us that this constitutional error was
harmless beyond a reasonable doubt. Paige, 67 M.J. at 449.

      In our initial opinion we struggled to understand the burden shift articulated
in Paige. As a matter of logic, if appellant has established material prejudice to a
substantial right, how could the government ever be able to show that the error was
harmless beyond a reasonable doubt? On appeal, an error in a case cannot
simultaneously: 1) materially prejudice appellant’s rights; and 2) be harmless
beyond a reasonable doubt.




8
    67 M.J. 442, 449 (C.A.A.F. 2009).




                                             6
TOVARCHAVEZ—ARMY 20150250


      The plain error standard announced in Paige was not without controversy.
Judge Stucky, joined by Judge Ryan, argued in dissent that the majority had
misapplied the CAAF’s precedent.

             The majority asserts that once an appellant has established
             plain, constitutional error, “the burden shifts to the
             Government” to establish that the error was harmless
             beyond a reasonable doubt. United States v. Paige, 67
             M.J. at 449 (C.A.A.F. 2009) (citing United States v.
             Carter, 61 M.J. 30, 33 (C.A.A.F. 2005)).” But that
             language from Carter was derived from dictum in Powell,
             49 M.J. at 464-65, that was based on United States v.
             Adams, 44 M.J. 251, 252 (1996), a case in which neither
             the issue granted for review nor this Court's opinion
             discussed plain error.

Paige, 67 M.J. at 453 (Stucky, J. dissenting).

       When we first addressed the Hills error in this case we applied Paige as we
understood it. However, the CAAF has since issued additional opinions addressing
forfeited Hills error.

             3. United States v. Guardado and United States v. Williams

      Since our original opinion, the CAAF has issued two (unanimous) decisions
involving the standard of review in cases of unpreserved constitutional error, both
involving the exact same type of error as we presently address.

       In United States v. Guardado, the CAAF stated the standard of review for
forfeited Hills error as follows:

                   This Court has repeatedly held that plain error
             occurs when: (1) there was error, (2) such error was clear
             or obvious, and (3) the error materially prejudiced a
             substantial right of the accused. The burden lies with
             Appellant to establish plain error.

77 M.J. at 93 (citations omitted) (emphasis added). If one asked whether the plain
error test applies to forfeited instructional error, even error of a constitutional
magnitude, it would appear the CAAF answered the question in Guardado.

      In United States v. Williams, the CAAF directly cited to Guardado for the
appropriate standard of review, but articulated it in a slightly different manner:

             Under this Court’s plain error jurisprudence, to establish
             plain error an appellant must demonstrate (1) error, (2)



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TOVARCHAVEZ—ARMY 20150250


             that is clear or obvious at the time of appeal, and (3)
             prejudicial.

Williams, __ M.J.__, 2018 CAAF LEXIS 365, at *7 (citing Guardado, 77 M.J. at
93).

        Notably, in both Guardado and Williams the court omitted the second burden
shift that had been articulated in Paige and Carter. That is, in neither case did the
court ask whether the error was harmless beyond a reasonable doubt. Indeed, in
Williams, the court explicitly stated a prejudice analysis that is based on Article
59(a), UCMJ: “Having found error, we must determine whether such error
prejudiced Appellant’s substantial rights.” Id. at *8.

                4. United States v. Lopez & United States v. Robinson

      In Molina-Martinez v. United States, the Supreme Court announced the
general rule for assessing the prejudice prong in the case of plain error. “[T]he error
must have affected the defendant’s substantial rights, ibid., which in the ordinary
case means he or she must ‘show a reasonable probability that, but for the error,’ the
outcome of the proceeding would have been different.” 136 S. Ct. 1338, 1343
(2016) (citations omitted).
       Because the military justice system relies on a different statutory source for
our plain error analysis, 9 it is not always clear that civilian precedents regarding
plain error are applicable to military appellate practice. However, in United States
v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017), the CAAF adopted the Molina-Martinez
standard. The CAAF summarized the plain error standard as follows:
             Appellant thus “has the burden of establishing (1) error
             that is (2) clear or obvious and (3) results in material
             prejudice to his substantial rights.” United States v.
             Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014); see also United
             States v. Dominquez Benitez, 542 U.S. 74, 82, 124 S.Ct.
             2333, 159 L.Ed.2w 157 (2004) (“the burden of
             establishing entitlement to relief for plain error is on the
             defendant claiming it”). “[F]ailure to establish any one of
             the prongs is fatal to a plain error claim.” United States v.
             Bungert, 62 M.J. 346,348 (C.A.A.F. 2006). Here,
             Appellant cannot establish material prejudice.

9
 The Supreme Court’s decision in United States v. Olano, 507 U.S. 725 (1993) was
based on an interpretation of Fed. R. Crim. Proc. 52(b). See United States v.
Humpries, 71 M.J. 209, 220-21 (C.A.A.F. 2012); Powell, 49 M.J. 460, 465 (C.A.A.F.
1998).




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                     In this context, material prejudice to the substantial
              rights of the accused occurs when an error creates “an
              unfair prejudicial impact on the [court members’]
              deliberations.” Knapp, 73 M.J. at 37 (alteration in
              original) (internal quotation marks omitted) (citation
              omitted). In other words, the appellant must show a
              reasonable probability that, but for the error, the outcome
              of the proceeding would have been different.” Molina-
              Martinez v. United States, 136 S. Ct. 1338, 1343, 194 L.
              Ed. 2d 444 (2016) (internal quotation marks omitted)
              (citation omitted).
Id. (alterations in original); but see United States v. Haverty, 76 M.J. 199, 209
(C.A.A.F. 2017) (Stucky, J. dissenting: “In United States v. Lopez, we adopted the
Supreme Court’s interpretation of the prejudice prong of the plain error test: “the
appellant ‘must show a reasonable probability that, but for the error, the outcome of
the proceeding would have been different.’”).
       In United States v. Robinson, the CAAF applied Lopez and Molina-Martinez
to a case of instructional plain error that appears to be one of constitutional
magnitude. 77 M.J. 294, 299 (C.A.A.F. 2018) (citing Lopez, 76 M.J. at 154). In
Robinson, the question was whether appellant was prejudiced when the military
judge instructed the panel on an impermissibly low mens rea. 10 The defense had not
objected. The court announced the test for determining prejudice in the plain error
context, citing to Guardado and Davis, as follows:

                     Because Appellant did not object to the military
              judge’s instructions at trial, we review for plain error
              based on the law at the time of appeal. Appellant bears
              the burden of establishing: (1) there is error; (2) the error
              is clear or obvious; and (3) the error materially prejudiced
              a substantial right. To establish plain error, all three
              prongs must be satisfied. The third prong is satisfied if
              the appellant shows a reasonable probability that, but for
              the error claimed, the outcome of the proceeding would
              have been different.

              ....

              Appellant has failed to meet his burden of showing that
              but for [this error], the outcome of the proceeding would
              have been different.

10
     The CAAF assumed error. Id.




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77 M.J. at 299 (C.A.A.F. 2018) (quotations and citations omitted). Thus, to the
extent that the CAAF’s decision in Guardado may be susceptible to multiple
interpretations, in Robinson the CAAF itself interpreted Guardado to require a plain
error analysis.

                5. United States v. Riggins 11 and United States v. Oliver 12

        Although not cases involving instructional error, both United States v. Riggins
and United States v. Oliver provide insight into our superior court’s treatment of
preserved and unpreserved constitutional errors. Both cases addressed the same
error: that the accused was convicted of a lesser-included offense that was not, in
fact, a lesser included offense. In Riggins the error was preserved and in Oliver the
error was forfeited. In Riggins the court stated for “preserved constitutional errors,
such as in the instant case, the Government bears the burden of establishing that the
error is harmless beyond a reasonable doubt.” 75 M.J. at 85. By contrast, in Oliver,
the error was never objected to at trial, and the court tested to determine if appellant
had met his burden of establishing “material prejudice to his substantial rights.” 76
M.J. at 275.

                          6. Interpreting the Standard of Review

        In light of Guardado, Robinson, and Williams, we understand that the
appropriate prejudice analysis for unpreserved error–even error of a constitutional
magnitude–is whether the error materially prejudiced the substantial rights of
appellant. Article 59(a), UCMJ. That is, if appellant meets his burden of
establishing plain error, the inquiry ends and we are not required to reach the
question of whether the error was harmless beyond a reasonable doubt. We come to
that conclusion for several reasons.

       First and foremost, we believe our superior court spoke clearly when, at the
threshold of their opinion in Guardado, they announced they were reviewing the
case to determine whether the error materially prejudiced the substantial rights of
appellant. 13 77 M.J. at 93. On balance, the CAAF’s decisions in Williams and



11
     75 M.J. 78 (C.A.A.F. 2016).
12
     76 M.J. 271 (C.A.A.F. 2017).
13
  To the extent that this standard contradicts the standard announced in Wolford,
Paige, Harcrow, or the other cases cited by the dissent, we think it best to follow the
CAAFs more recent precedent. While we agree that these cases remain “good law”
until the CAAF says otherwise, we are stuck between what the CAAF stated over a
decade ago and what they wrote last term. United States v. Hardy, __ M.J.__, 2018

                                                                           (continued . . .)


                                             10
TOVARCHAVEZ—ARMY 20150250


Robinson also steer us towards applying the standard test for determining prejudice as part
of a plain error analysis.

       While we acknowledge the dissent’s reasonable arguments to the contrary, in
Guardado, the CAAF addressed the Hills error within the context of materially
prejudicing a substantial right of the accused and concluded it was unable to
determine “the military judge’s M.R.E. 413/414 instruction was harmless.” Id. at 95
(emphasis added). The CAAF did not state it was unable to determine the
instruction was harmless beyond a reasonable doubt. The omission of the phrase
“harmless beyond a reasonable doubt” would not appear to be oversight; it would be
the whole enchilada. We do not interpret a citation to Hills (which is an
unsurprising citation in a case discussing Hills error) as having intended to change
the burden or degree of prejudice required that was so plainly stated at the beginning
of the opinion. Nor do we understand the CAAF to have created a Hills-specific
plain error test.

       Moreover the language in Williams confirms for us that the test for prejudice
is simple harmlessness. __ M.J. __, 2018 CAAF LEXIS 365, * 13-14. In Williams
the CAAF concluded “the military judge’s M.R.E. 413 instruction was not harmless
with respect to the Specification of Charge I or Specifications 2, 3, and 4 of Charge
II.” Id. at *13. The CAAF never stated this error was not harmless beyond a
reasonable doubt. Similarly, the CAAF affirmed Specification 1 of Charge II
asserting that based on the corroborating evidence it was “confident that [Williams]
committed sodomy with SW by force and without her consent.” Id. at *14. The
CAAF never asserted it was–or required itself to be–confident beyond a reasonable
doubt.

      And then, we must consider that our superior court in Lopez specifically
adopted the Molina-Martinez plain error test. The CAAF recently went on to apply
Lopez to an instance of forfeited constitutional error in Robinson.

       Second, the standard announced in Guardado, Williams, and Robinson appears
to be similar to the standard used in federal civilian appellate courts for assessing
prejudice in the case of forfeited constitutional error. Recently, in United States v.
Cardena, the 7th Circuit summarized the Supreme Court case law on forfeited
constitutional error. While the analysis does not square on all four corners with
military plain error jurisprudence, the summary is informative:

                   But even a jury-instruction error of constitutional
              dimension is subject to the familiar requirement that the


(. . . continued)
CAAF LEXIS 324, at *9 n.5 (C.A.A.F. 5 Jun. 2018) (“When confronted with
conflicting precedents, we generally follow the most recent decision.”).




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             error have harmed the defendant. See Skilling v. United
             States, 561 U.S. 358, 414, 130 S. Ct. 2896, 177 L. Ed. 2d
             619 (2010) (noting that a jury instruction error of the
             Yates variety is subject to harmless-error review);
             Hedgpeth v. Pulido, 555 U.S. 57, 60, 129 S. Ct. 530, 172
             L. Ed. 2d 388 (2008) (same). In other words, to constitute
             reversible error, the plain error must have affected the
             defendant’s substantial rights such that there is a
             reasonable probability that but for the error the outcome
             of the trial would have been different. Molina-Martinez v.
             United States, 136 S. Ct. 1338, 1343, 194 L. Ed. 2d 444
             (2016); United States v. McGuire, 835 F.3d 756, 2016 WL
             4527557, at *2 (7th Cir. 2016). The analysis “requires the
             same kind of inquiry” as harmless-error review, except
             that the burden is on the defendant to show prejudice.
             United States v. Olano, 507 U.S. 725, 734, 113 S. Ct.
             1770, 123 L. Ed. 2d 508 (1993). Defendants have not
             satisfied their heavy burden of showing that the error
             affected their substantial rights. United States v. Butler,
             777 F.3d 382, 388 (7th Cir. 2015) (calling the plain error
             test “remarkably demanding”).

842 F.3d 959, 998 (7th Cir. 2016). See also United States v. Gonzalez-Huerta, 403
F.3d 727, 733 (10th Cir. 2005); United States v. Woodard, 387 F.3d 1329, 1331
(11th Cir. 2004).

       Third, and relatedly, this court may only set aside the findings based on an
error of law if the error materially prejudiced the substantial rights of the accused.
UCMJ art. 59(a). Only if the Constitution requires a different standard are we
released from Article 59(a)’s constraints. 14 United States v. Vazquez, 72 M.J. 13, 19
(C.A.A.F. 2013). Our superior court has clearly stated that a military accused does
not enjoy due process protections above and beyond what is provided for by the
Constitution, statute, and procedural rules. Id. Accordingly, it would be
inconsistent with Article 59(a), UCMJ, to test if an error was harmless beyond a
reasonable doubt in a case where civilian courts would test only simple
harmlessness.

      Accordingly, we must determine whether the Hills error was harmless–that is,
whether the “error materially prejudiced Appellant’s substantial rights.”




14
 However, Article 59(a) only applies to errors of law. Compare Article 59(a),
UCMJ, with Article 66(c), UCMJ.




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                          7. The Error Here Was Harmless

        The evidence against appellant in this case was significant and consisted of
more than the complaining witness’s testimony. The charged victim, SPC JR
testified credibly about the offense. She reported the offense shortly after the
assault. A report of a physical examination noted vaginal tenderness and spotting.
Swabs taken during the exam revealed the presence of appellant’s DNA in SPC JR’s
vagina.

       Text messages between appellant and SPC JR corroborated her initial report
and her in-court testimony. Appellant had gone to SPC JR’s room under the pretext
of returning a box to her that contained some of her military gear. Appellant arrived
at SPC JR’s barracks and asked by text for her room number. He then texted her to
open the door. However, he did not bring the box of gear. Specialist JR testified
appellant then assaulted her against her repeated protestations. Alcohol was not
involved.

      After the assault, appellant initiated a text conversation:

             Appellant: You good

             Specialist JR: Nope

             Appellant: N Why

      Specialist JR did not immediately respond. In the meantime, she texted
various military officials asking about moving to a new barracks room. In one
message she asked if she could take one or two weeks of leave, “Even if I stay in the
barracks and not go anywhere.”

       Three days later, SPC JR reinitiated the conversation with appellant. 15 After a
brief discussion about why appellant never brought her box of military gear (which
had been the pretext for coming to her room the night of the assault), SPC JR
specifically confronted appellant with an accusation of sexual assault. She texted
appellant, “What’s weird is I told you no and you still forced me to have sex
anyway.”

       Confronted with an accusation of sexual assault, appellant apologized, told
SPC JR he had now dropped her stuff off at the company, and said “from now on im
[sic] going to leave you alone.”



15
  This was a “pretext” text conversation in which SPC JR conducted the texts with
an investigator from the Army Criminal Investigation Command.




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       Not accepting the apology, SPC JR pushed back and asked “If your [sic] sorry
why did you do it[?]” Appellant responded by admitting “I made a mistake by
crossing the line and I’m sorry for that, you deserve much more than that.”

      In sum, this was not a case that turned only on the testimony of SPC JR. Her
testimony was corroborated by DNA evidence, a forensic exam, her own
contemporaneous statements, and text messages that corroborated her timeline and
provided significant evidence of appellant’s guilt and consciousness of guilt.
Appellant did not testify or present evidence of a plausible counter-narrative that
would detract from the weight of the government’s case.

       Given the strength of the evidence, and the lack of significant argument or
discussion regarding propensity, we fail to find a material prejudice to any of
appellant’s substantial rights. Indeed, the absence of any propensity argument (by
the trial counsel) and the lack of objection by appellant, is indicative of the small
degree that propensity evidence and the erroneous instruction played at this trial.

       But to the extent we are wrong, we have also considered whether the evidence
is strong enough to convince us that the error was harmless beyond a reasonable
doubt. We do this for purposes of transparency, and so that our superior court can
make quick work of this opinion if we have erred. We are not convinced. While the
evidence is strong, and the verdict has our full confidence, there is a wide gulf
between testing for plain error and testing for constitutional harmlessness.

       As just discussed, SPC JR’s testimony describing an assault was corroborated
by independent evidence. But, the DNA evidence, for example, did not directly
contradict the defense theory of the case. While the inculpatory text messages by
appellant can be interpreted as establishing consciousness of guilt for his crimes
(and this is how we see them), they could also be the statements from someone who
knows they have acted inappropriately, but not criminally. Accordingly, in our
weighing, the evidence in this case falls between the two standards, and necessitates
this lengthy analysis.

                         B. Ineffective Assistance of Counsel

       The initial claim of ineffectiveness centered on an email appellant’s civilian
defense counsel (CDC) sent his military defense counsel. In the email, the CDC
expressed a low opinion of his trial performance, writing, “I screwed up crossing
[the victim]. I alone was ineffective. . . .” 16

16
  In our original opinion we noted at length that the email was an unsigned,
unauthenticated attachment to appellant’s R.C.M. 1105 submissions that did not
include the CDC’s name or other reliable indicia that it was what it claimed to be.
We refused to consider the email. However, based on conflicting affidavits

                                                                       (continued . . .)


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       The standard for assessing a claim of ineffective assistance of counsel is well
established. To establish deficient performance, a person challenging a conviction
must show that “counsel’s representation fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). A court
considering a claim of ineffective assistance must apply a “strong presumption” that
counsel’s representation was within the “wide range” of reasonable professional
assistance. Id. at 689. The challenger’s burden is to show “that counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id, at 687.

      With respect to prejudice, a challenger must demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. at 694.

        We first address the weight we should give the civilian defense counsel’s
opinion contained in an email that he was “ineffective.” We give it slight weight for
two reasons. First, as the Supreme Court has stated, “After an adverse verdict at
trial even the most experienced counsel may find it difficult to resist asking whether
a different strategy might have been better, and, in the course of that reflection, to
magnify their own responsibility for an unfavorable outcome.” Harrington v.
Richter, 562 U.S. 86, 109 (2011). Second, a counsel’s subjective evaluation is of
only marginal relevance in resolving an objective inquiry. Strickland requires an
objective inquiry. 466 U.S. at 688.

       Accordingly, we turn to the substance of appellant’s claim. We note that the
scope of our remand included consideration of “all of appellant’s claims of
ineffective assistance of counsel.” That is, we provided a broad mandate to consider
appellant’s claims at a forum that provides for compulsory process. Accordingly, at
this point, appellant has had the opportunity to perfect the evidentiary basis for all
of his claims of counsel ineffectiveness.

(. . . continued)
unrelated to the email, we directed a DuBay hearing. For purposes of judicial
economy, our DuBay order required the military judge to expand the fact-finding
hearing to address all of appellant’s claims of ineffectiveness, whether raised as
assigned errors or raised pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982). In other words, since the authentication of the email could be easily
resolved at the DuBay hearing, we broadened the scope of the hearing to address the
full range of appellant’s claims. At the DuBay hearing, the civilian defense counsel
agreed that he had sent the message, but explained that he was disappointed in his
own performance and saw himself as ineffective, not necessarily that he was
constitutionally ineffective under Strickland v. Washington.




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                     1. Failure to Obtain Exculpatory Messages

       Before trial, appellant told his civilian defense counsel about messages he had
received from SPC JR over Facebook. Appellant claims that in the messages, SPC
JR describes the charged conduct as an act of infidelity and adultery, not as a sexual
assault. Appellant claims it was error not to introduce the messages.
At the DuBay hearing, appellant testified that before trial he had deleted the
messages from his Facebook account. He further testified that after trial, he went to
Facebook headquarters to try to obtain the deleted messages and that he offered a
$2,000 reward to anyone who could recover the messages. Neither effort was
successful.

       The DuBay defense counsel called the civilian defense counsel, who testified
that while he remembered a conversation about Facebook messages, he could not
recall the messages’ content. He testified that appellant told him that he had deleted
the messages, and he was concerned that this may be seen at the court-martial as
conduct consistent with a consciousness of guilt. He therefore sought to avoid
bringing the messages into the trial.

       On appeal, appellant argues that his civilian counsel still should have found
and introduced the deleted messages because copies likely remained on SPC JR’s
account. 17 It is appellant’s burden to establish that his counsel was ineffective. This
case has now had a fact-finding hearing. Appellant’s burden was not merely to
prove that his counsel didn’t obtain the messages. Rather, it was to prove that they
were obtainable by diligent counsel and to prove that the content of the messages
mattered (i.e. prejudice). Appellant falls short on both counts.




17
  The DuBay judge found that the deleted messages were not recoverable. Appellant
asks us to reject this finding based on a common-sense understanding of how modern
communication functions. Based on the record actually established at the hearing,
the military judge’s ruling is not erroneous. More generally, when the claim on
appeal is that the trial attorney was deficient in not providing the trial court with
‘X,’ the appellant should be providing the reviewing court with ‘X.’ Except in cases
where the appellant can demonstrate that the evidence has since become
unobtainable, providing the reviewing court with information helps establish that
that it was obtainable by diligent counsel in the first instance. And certainly, the
reviewing court will likely need to have the information to determine whether
appellant has met his burden of showing the missing evidence was prejudicial under
Strickland. Lastly, however, counsel risk being hoisted on their own petard if they
argue that the trial defense counsel was ineffective for not obtaining evidence that
they themselves have not obtained.




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                           2. Cross-Examination of SPC JR

       On appeal, appellant lays out several areas in which he claims his counsel was
ineffective in cross-examining SPC JR.

       First, he argues that his counsel should have transcribed SPC JR’s Article 32
testimony in time for trial. To the extent that a verbatim transcript was necessary
(vice the audio tape or summarized transcript), even post-DuBay we do not have a
transcription of the Article 32 testimony. 18 Moreover, although perhaps more
technically challenging, nothing requires a witness to be impeached (or refreshed)
with a written transcript instead of an audio recording.

        Second, appellant argues that his counsel should have confronted SPC JR with
her Article 32 testimony. At the Article 32, SPC JR testified that she did not
initially believe she had been “raped” until the nature of the offense had been
explained to her. She also indicated she was conflicted in her feelings about what
had happened with regard to her then boyfriend. Having listened to the audiotape, to
include her explanations for these feelings, we see no prejudice under Strickland in
not repeating the same line of inquiry at trial.

       Third, appellant claims that his defense team failed to cross-examine SPC JR
about two post-assault conversations she had with appellant. Appellant in his
affidavit to this court claimed that in both conversations SPC JR referred to the
sexual assault as adultery and again repeated that she did not believe she had been
raped. Again, having been provided a DuBay hearing to investigate this claim,
neither side called SPC JR to determine what her testimony would have been if
cross-examined, nor was appellant called to testify about these conversations.
On balance, we find appellant has failed to meet his high burden of showing that his
counsel was ineffective. We must evaluate counsel’s conduct “from the counsel’s
perspective at the time.” Strickland, 466 U.S at 689. In Harrington, the Supreme
Court wrote reliance “‘on the harsh light of hindsight’ to cast doubt on a trial . . . is
precisely what Strickland . . . seek[s] to prevent.” Harrington, 562 U.S. at 89. To
be sure, as the civilian defense counsel admitted at the DuBay, different choices




18
   On appeal, appellant has not provided this court with a transcript. Instead,
appellant refers us to a disk containing the audio recording, presumably the same
disk that was available to the trial participants. The disk contains three separate
audio files. In every case, but especially a case where one claim of error involves a
counsel’s failure to provide the tribunal with a transcript of the hearing, the court
would appreciate being provided, if not a transcript, then at least references to
specific time stamps on an audio recording so that we may easily find the testimony
at issue.




                                           17
TOVARCHAVEZ—ARMY 20150250


could have been made and different strategies pursued. 19 However, our job is not to
determine whether counsel could have performed better; our job is to determine
whether counsel were acting as counsel.

       The DuBay judge determined that appellant’s defense team were not deficient
in their representation of appellant. 20 Accordingly, the DuBay judge did not
specifically rule on whether appellant had established the prejudice prong of the
Strickland inquiry. We take the opposite approach. Although we do not specifically
disturb the DuBay judge’s ruling, we find appellant failed to establish a reasonable
probability that, but for counsel’s errors, the result of the proceeding would have
been different.

                                   CONCLUSION

      The findings of guilty and the sentence are AFFIRMED.

      Senior Judge MULLIGAN concurs.

CAMPANELLA, Senior Judge, dissenting;

       The majority creates a dispute where there is none between the parties. In
doing so they ignore our superior court’s controlling precedent regarding application
of the harmless beyond a reasonable doubt standard of prejudice for forfeited
constitutional error. See United States v. Wolford, 62 M.J. 418, 420 (C.A.A.F.
2006); United States v. Harcrow, 66 M.J. 154, 160 (2008); United States v. Sweeney,
70 M.J. 296, 304 (2011). The majority concludes “our superior court spoke clearly”
regarding the standard of mere harmless prejudice used to conduct its analysis in


19
  At the DuBay hearing, the civilian defense counsel, consistent with the content of
post-trial emails he had sent, complained about the speed of the court-martial and
the pace in which the panel members were instructed. He specifically faulted
himself for not objecting to these issues.
20
  The DuBay judge did note several concerns about the civilian defense counsel.
First, he faulted the civilian defense counsel for not having better pretrial
coordination with the military defense counsel. We agree, but find no prejudice.
Second, he described as “difficult to justify” the civilian defense counsel’s decision
not to object to a panel member who had been a victim of sexual assault based on his
in-court read of her demeanor. We disagree, as this is exactly the type of decision
we will not second-guess under Strickland. Third, he described the civilian defense
counsel’s decision to wait until after findings to raise a Rule for Courts-Martial
[R.C.M.] 917 motion as “baffling.” An R.C.M. 917 motion may be raised at any
time before adjournment, and since the evidence is certainly legally sufficient, any
failure to raise the motion before findings was harmless.




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TOVARCHAVEZ—ARMY 20150250


both United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), and United States v.
Williams, __ M.J. __, 2018 CAAF LEXIS 365 (C.A.A.F. 27 June 2018). I disagree
and would therefore set aside the findings of guilty. I agree with the majority’s
assessment that the instructional error here was not harmless beyond a reasonable
doubt.
       In Guardado, the CAAF relied on Hills for the proposition that instructional
error is reviewed de novo. 77 M.J. at 93 (citing United States v. Hills, 75 M.J. 350,
357 (C.A.A.F. 2016). In turn, Hills relied on United States v. Wolford to assert: “If
instructional error is found [when] there are constitutional dimensions at play, [the
appellant’s] claims must be tested for prejudice under the standard of harmless
beyond a reasonable doubt.” 75 M.J. at 357 (quoting Wolford, 62 M.J. at 420
(internal quotations omitted)).
        Just as in this case, Wolford involved forfeited constitutional error where the
“[d]efense counsel did not object to the military judge’s instructions at the time of
trial.” 62 M.J. at 420. However, contrary to the majority’s decision here, our
superior court in Wolford applied the constitutional standard of prejudice and
required the government prove the error was harmless beyond a reasonable doubt.
Id.

      Ironically, in the case at bar the government sets its own constitutional burden
by pointing us to both Harcrow and Sweeney. Where the majority here reads into
what “was not” asserted or “was never asserted” by the CAAF in both Guardado and
Williams, in Harcrow the CAAF plainly states the standard:

             Having found plain and obvious error, we turn to prejudice
             and consider whether the admission of the laboratory
             reports materially prejudiced a substantial right. Because
             this case involves constitutional error, the question is
             whether the Government has shown that the error was
             harmless beyond a reasonable doubt.

Harcrow, 66 M.J. at 160 (citing United States v. Brewster, 61 M.J. 425 (C.A.A.F.
2005)) (applying a prejudice analysis of whether the government proved the obvious
constitutional error was harmless beyond a reasonable doubt to an instructional error
the defense failed to object to at trial). If there were any doubt as to how this
standard of plain error prejudice applies to a constitutional error, Sweeney asserts:

             Under plain error review, this Court will grant relief only
             where (1) there was error, (2) the error was plain and
             obvious, and (3) the error materially prejudiced a
             substantial right of the accused. Where, as here, the
             alleged error is constitutional, the prejudice prong is
             fulfilled where the Government cannot show that the error
             was harmless beyond a reasonable doubt.
70 M.J. at 304.


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TOVARCHAVEZ—ARMY 20150250


       The CAAF has not overturned Wolford, Harcrow, or Sweeney with respect to
the requirement that the government prove a forfeited error of constitutional
dimension was harmless beyond a reasonable doubt. We therefore are bound by
them.

       Indeed, despite the clarity the majority professes to read into CAAF’s
purported assertion of mere harmlessness, in both Guardado and Williams the CAAF
concludes they are not convinced the error “played no role” in each appellant’s
convictions to particular charges. Guardado, 77 M.J. at 94-95 (“Although it is
certainly possible that the members convicted Appellant based solely on the
testimony of his accusers, we are not convinced that the erroneous propensity
instruction played no role in Appellant's conviction.”); Williams, __ M.J. __, 2018
CAAF LEXIS 365, at *9 (“First, with respect to the offense alleged in Charge I, we
are not convinced that the erroneous propensity instruction played no role in
Appellant's conviction.). To require an error play no role in a conviction is to
require the error be harmless beyond a reasonable doubt.

      As I would apply the burden that the government prove the instructional error
was harmless beyond a reasonable doubt, I respectfully dissent and would set aside
appellant’s convictions and authorize a rehearing.


                                      FOR THE
                                          THECOURT:
                                              COURT:




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




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