UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           MULLIGAN, FEBBO, and WOLFE
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                      v.
                     Master Sergeant ALAN S. GUARDADO
                        United States Army, Appellant

                                  ARMY 20140014

                      Headquarters, III Corps and Fort Hood
                       Rebecca K. Connally, Military Judge
              Colonel Stuart W. Risch, Staff Judge Advocate (pretrial)
              Colonel Ian G. Corey, Staff Judge Advocate (post-trial)


For Appellant: Mr. James S. Trieschmann, Esquire; Captain Payum Doroodian, JA
(on brief); Mr. James S. Trieschmann, Esquire; Captain Michael A. Gold, JA (on
supplemental brief and reply brief).

For Appellee: Lieutenant Colonel A.G. Courie III, JA; Major Christopher A.
Clausen, JA; Captain Samuel E. Landes, JA (on brief); Lieutenant Colonel A.G.
Courie III, JA; Captain Carling Dunham, JA; Captain Samuel E. Landes, JA (on
brief in response to supplemental assignment of error).

                                 15 November 2016
                             -----------------------------------
                               OPINION OF THE COURT
                             -----------------------------------

WOLFE, Judge:

       Appellant, Master Sergeant (MSG) Alan Guardado, faced numerous offenses
of sexual misconduct with children. The most serious conviction related to his
touching of his daughter’s genitals on her tenth birthday. Separately, appellant was
also convicted of cornering his niece in a hotel room and indecently grabbing her
pants and trying to pull them down. The remaining offenses all stem from
appellant’s time as the coach of a girls’ soccer team. For several years appellant
coached a team composed of girls roughly aged thirteen to sixteen years. Neither
appellant’s daughter nor niece were on the team. Several of the children accused
appellant of indecent and inappropriate conduct when he asked them about their
sexual acts, asked if they shaved their genitals, commented sexually on their
appearance, or suggested they work at a strip club where he could watch them.
GUARDADO—ARMY 20140014

      The government’s charging strategy was aggressive. So aggressive that, as
we must discuss in detail below, several of the offenses are multiplicious and
unreasonably multiplied.

       Ultimately, a panel with enlisted representation convicted appellant of one
specification of aggravated sexual contact with a child, three specifications of
indecent liberties with a child, three specifications of battery of a child under the
age of sixteen, four specifications of committing a general disorder, one
specification of indecent assault, one specification of indecent acts, and one
specification of using indecent language with a child, in violation of Articles 120,
128, and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§
920, 928, 934 (2000 & Supp. V 2006; 2006; 2006 & Supp. I 2008). 1

       The court-martial sentenced appellant to confinement for eight years,
forfeiture of all pay and allowances, and a reduction to the grade of E-1. The court-
martial did not adjudge a punitive discharge. 2 The convening authority approved the
sentence and ordered it executed.

       Appellant assigns twelve errors to this court. Additionally, we identify one
other issue worthy of discussion. First, we address the application of United States
v. Hills, 75 M.J. 350 (C.A.A.F. 2016), to the propensity instruction given by the


1
  The panel acquitted appellant of one specification of rape, one specification of
indecent liberties with a child, one specification of wrongful sexual contact, one
specification of abusive sexual contact, and one specification of assault
consummated by battery. The specification of rape alleged appellant had sexual
intercourse with an incapacitated soldier between November 1996 and 1 January
1998. The other allegations were from soccer players on his team. Unless
specifically noted, the remainder of the opinion does not discuss the specifications
that resulted in an acquittal.
2
  We note the sentencing worksheet submitted by the panel was only partially filled
out and was ambiguous as to whether the court-martial intended to sentence
appellant to a punitive discharge. The military judge did not resolve the ambiguity
in the sentencing worksheet prior to the announcement of the sentence or clarify any
discrepancy between the announced sentence and the worksheet. Nonetheless, the
sentence as announced—which did not include a punitive discharge—was clear, so
we have no issue on appeal. See Rule for Court-Martial [hereinafter R.C.M.] 1007
(“Announcement of sentence”) and R.C.M. 1008 (“Impeachment of sentence”).
Likewise, review by this court is limited to the sentence “as approved” by the
convening authority and the convening authority here approved the sentence as
announced on the record.



                                           2
GUARDADO—ARMY 20140014

military judge. We find the instruction was error, but harmless beyond a reasonable
doubt. Next, we address appellant’s contention that the court-martial lacked subject
matter jurisdiction over several specifications because of the preemption doctrine.
We determine the preemption doctrine is not jurisdictional and the offenses were not
preempted. Third, we address whether the military judge erred when she ruled that
defense witnesses would not be allowed to testify unless the witnesses agreed to be
interviewed by the government. We find the military judge erred, but that the error
was harmless. Finally, we consolidate appellant’s several assignments of error that
the specifications are both multiplicious and unreasonably multiplied, and we grant
appellant his requested relief for those issues. The remaining assignments of error,
as well as the issues personally raised by appellant under United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), are either mooted by our resolution of other issues or do
not merit detailed discussion. 3


3
    Appellant’s remaining issues were are follows:

In appellant’s second assignment of error he requests relief for excessive post-trial
delay. We find no due process violation, and are not compelled under the facts of
this case to exercise our discretionary Article 66(c), UCMJ, authority to grant relief.

In his fifth assignment of error appellant argues that one of the girls on appellant’s
soccer team was in fact an adult at the time of the alleged offense, and therefore his
comments to her were not criminal. We find the offense to be legally sufficient.

In his sixth assignment of error, appellant argues that even if the victim was a child,
then the offense was outside the statute of limitations. We find no merit in this
claim.

In his ninth assignment of error appellant alleges the military judge erred in failing
to dismiss the specifications for unlawful command influence because of comments
made by the Chief of Staff of the Army. Appellant does not allege the comments
affected the adjudicative portion of the trial, but rather influenced or appeared to
influence the convening authority’s referral decision. We find no error.

Appellant’s tenth assignment of error alleges his defense counsel was
ineffective during presentencing hearing for failing to object to the trial counsel’s
presentencing argument. We find appellant has not met his high burden of
establishing that his counsel was ineffective and that he was prejudiced by this
result.

In his eleventh assignment of error, appellant argues the military judge erred in
failing to, sua sponte, issue a curative instruction. During cross-examination,

                                                                        (continued . . .)
                                           3
GUARDADO—ARMY 20140014

                                   BACKGROUND

       Appellant’s convictions fall into three categories: the assault of his daughter;
the offenses against his niece; and the offenses against the children whom he
coached in soccer.

       Appellant was charged with rape of a child for penetrating his daughter’s
genitalia with his finger. Around the time of her tenth birthday, appellant’s daughter
was visiting him in Alabama. She testified during the visit, she accompanied her
father while they were driving to purchase birthday supplies for her tenth birthday.
During the drive, she testified “he started sticking his hand in my pants and felt
around and stuff.” While she testified that appellant had “slightly” penetrated her
vulva, her testimony was somewhat equivocal. The panel convicted appellant of the
lesser-included offense of aggravated sexual contact of a child.

       Appellant’s niece testified that during a family reunion appellant asked her to
accompany him to Walmart for an errand. Appellant, while sitting in the living
room with his niece, had previously texted her, and told her that she was “beautiful.”
She said she reluctantly accompanied him, but instead of going directly to Walmart
appellant drove them to his hotel and asked her to come into his room to help him
get something. After entering the room, she said appellant locked the door and
demanded she take off her pants. After her repeated refusals, she said appellant
came up to her and began to unbutton her pants. She said appellant ceased his
advances when she backed away and grabbed her cellphone out of her pocket.
Appellant then repeatedly told her she was not to tell anyone what had happened.
They then left the hotel room and drove to Walmart. As they drove, appellant asked
his niece whether she shaved her pubic area. Appellant’s niece was fourteen at the
time. She reluctantly disclosed this incident to her mother several years later upon
learning that appellant was going to have a daughter. For this conduct, the panel
convicted appellant of battery of a child, indecent assault, and indecent acts. All



(. . . continued)
appellant stated he was confident of his testimony because he had reviewed
his own bank records. The trial counsel asked why, if the records supported his
version of events, he had not brought them to the trial. The military judge sustained
a defense objection. We find the military judge did not abuse her discretion by not
issuing a curative instruction, especially given that the defense did not request one.

In his final assignment of error appellant argues the evidence supporting
Specification 1 of Charge I (the aggravated sexual contact on his niece) is factually
insufficient. After reviewing the evidence, we disagree.



                                           4
GUARDADO—ARMY 20140014

three specifications alleged the same facts: that appellant grabbed his niece’s pants
and tried to unbutton them.

       The third set of offenses all derive from appellant’s time as a volunteer coach
of a girls traveling soccer team. The government called several of the girls to testify
about the comments appellant had made during the course of being their coach.
Several testified that appellant had made inappropriate remarks about their looks,
such as one having “a nice ass.” Their testimony included that appellant would
drive by a local strip club when the girls were in his car. Appellant would talk to
one or more of the girls about dropping them off at the club and watching them
“dance and make money there.” Testimony included that appellant would comment
on pictures they posted on Facebook such as saying “You have a nice body” in
response to a picture of a girl in a swim suit. Appellant also asked about whether
they shaved their pubic area and what sexual acts they had done with boyfriends.
One player testified that at “most practices” appellant would come up behind her and
massage her waist or shoulders. She also testified that, in one instance, appellant
while driving, reached across the passenger compartment and placed his hand on her
thigh. For this conduct, the panel convicted appellant of three specifications of
indecent liberties with a child, two specifications of battery, one specification of
indecent language, and four specifications alleging general disorders.

                              LAW AND DISCUSSION

                               A. United States v. Hills

       We first consider our superior court’s recent decision in Hills, 75 M.J. at 350.
In Hills the Court of Appeals for the Armed Forces (CAAF) addressed the propriety
of using propensity evidence under Military Rule of Evidence [hereinafter Mil. R.
Evid.] 413 from charged offenses to help prove other charged offenses. In this case,
the military judge gave two sets of instructions that raise issues under Hills.

       First, the military judge instructed the panel members that they could use
evidence from certain charged offenses to show the accused’s modus operandi,
intent, and lack of mistake as to other charged offenses. This raises the question of
whether the reasoning of Hills applies to evidence considered under Mil. R. Evid.
404(b). We determine it does not.

       Second, the military judge instructed the members regarding propensity
evidence. The instructions were limited to four specifications, three of which
resulted in an acquittal. We determine that this instruction was error, but that
appellant suffered no prejudice from this instruction as any error was harmless
beyond a reasonable doubt.




                                           5
GUARDADO—ARMY 20140014

       Nearly half of all cases addressed by this court involve sexual assault offenses
and most of those involve cases with multiple charges or multiple victims. Given
the long appellate tail of these types of cases, it is likely that Hills will be relevant
to dozens of cases currently in the appellate ‘pipeline.’ Accordingly, and because it
aids in our understanding of the interconnectedness between Mil. R. Evid. 404(b)
and Mil. R. Evid 413, we will address this issue at some length.

                                  1. Hills Background

       In Hills the accused was charged with three different sex offenses. The
military judge instructed the members that they could consider propensity evidence
stemming from each specification as evidence against the remaining specifications.
Unique to Hills, however, all offenses were against the same victim, in the same
location, and all occurring within a matter of hours of each other. Id. at 352.

       In other words, as each offense could be used to prove the next, and as none
of the offenses were factually independent of each other, this created the potential
for circular findings of proof; a possible triple helix of evidence where the evidence
of guilt of each offense helps establish the next, spiraling upward until the threshold
of reasonable doubt is crossed.

       At this court, we expressed skepticism on the appropriateness on the
instruction, but affirmed because we failed to find substantial prejudice to the
accused. United States v. Hills, ARMY 20130833, 2015 LEXIS 268, *27 (Army Ct.
Crim. App. 25 Jun. 2015) rev’d 75 M.J. 350 (C.A.A.F. 2016). At the CAAF, the
court determined the error was of a constitutional magnitude and tested for
constitutional error, and for this reason reached a different conclusion. Hills, 75
M.J. at 358 (“Given that we apply a different standard for assessing the error than
the ACCA did, we also reach a different conclusion regarding the error’s import to
the outcome of the case.”). 4

                                  a. The Road to Hills

       Hills was not the first time either this court, or the CAAF, had confronted a
case in which Mil. R. Evid. 413 was applied to charged conduct. We address the
history of these cases, as Hills should be read in the context of developing case law,
especially as it pertains to determining prejudice.



4
 In United States v. Williams, we again expressed skepticism regarding the use of
Mil. R. Evid. 413 in Hills. 75 M.J. 621, 625 n.3 (Army Ct. Crim. App. 29 Feb.
2016).



                                           6
GUARDADO—ARMY 20140014

       In United States v. Schroder, 65 M.J. 49 (C.A.A.F. 2007), a case involving
Mil. R. Evid. 414, the military judge instructed the panel that they could consider
both charged and uncharged propensity evidence. The CAAF summarized the issues
thusly:

             The military judge ruled that the uncharged acts of
             molestation with SJS and JPR were admissible under
             M.R.E. 414 to prove that Appellant had raped JPR. He
             further determined that the uncharged acts with SJS and
             JPR, as well as the charged rape of JPR, were admissible
             under M.R.E. 414 in order to prove that Appellant had
             committed indecent acts with SRS.

Id. at 52 (emphasis added). While the CAAF found error in the judge’s instructions,
it was not because the military judge allowed propensity evidence from charged
conduct. The CAAF found the error harmless. Id. at 57.

       In United States v. Burton, the CAAF confronted a case where the trial
counsel, during his closing argument on findings, argued the accused’s propensity
with regards to the charged offenses. The court did not find that this was
impermissible per se. 67 M.J. 150, 152 (C.A.A.F. 2009). Rather, the court found
error because the trial counsel had not followed the rule that “[t]he 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 Mil. R. Evid. 404 or 413.”
Id (emphasis added). The reasoning in Burton would have been beside the point if,
for example, it was per se impermissible to argue, under Mil. R. Evid. 413,
propensity from charged offenses. In concluding the argument was improper, the
CAAF specifically noted the trial counsel could have received permission:

             As the Government did not offer the evidence under [Mil.
             R. Evid.] 413, it did not follow the steps required by [Mil.
             R. Evid.] 413. Therefore, it may not a posteriori justify its
             closing argument based on what it might have done.

Id. at 153 (emphasis added).

      The seminal case for our court was United States v. Barnes, 74 M.J. 692
(Army Ct. Crim. App. 2015). In that case, unlike Hills, the accused had been
charged with raping two separate victims, one in 2006 and one in 2009. Citing
Schroder, 65 M.J. at 62, this court specifically sanctioned the use of propensity




                                           7
GUARDADO—ARMY 20140014

evidence in such circumstances. 5 Barnes, 74 M.J. at 697-98. The CAAF denied a
petition for a grant of review of our decision in Barnes. United States v. Barnes, 75
M.J. 27 (C.A.A.F. 2015).

                                   b. Federal Cases

       In Hills our superior court stated “[n]either this Court nor any federal circuit
court has permitted the use of [Mil. R. Evid.] 413 or Federal Rule of Evidence
[hereinafter Fed. R. Evid.] 413 as a mechanism for admitting evidence of charged
conduct to which an accused has pleaded not guilty in order to show a propensity to
commit the very “same charged conduct.” Hills, 75 M.J. at 354. Given the specific
facts of Hills, this proposition is certainly correct. We also cannot find any case
where a court had ever sanctioned propensity evidence from a charged offense to
establish “the very same charged conduct.”

      However, several federal circuits have stated it is permissible for a jury to
consider propensity evidence from one charged offense to help prove a different
charged offense (i.e. when it is not the “same charged conduct”).

      In 2006, U.S. District Judge Kravitz, D. Conn., ruled the defendant was not
prejudiced by the joinder of several charges, in part, because Fed. R. Evid. 414
permitted evidence of one charged offense of child molestation as proof of another: 6

             . . . the Court notes that evidence regarding certain
             charges in the Superseding Indictment may well be
             admissible on other charges. See Fed. R. Evid. 414(a) (“In
             a criminal case in which the defendant is accused of an
             offense of child molestation, evidence of the defendant’s


5
  The CAAF in Schroder expressed some reservation regarding the standard Mil. R.
Evid. 413/414 instructions. 65 M.J. at 56. In Barnes, we likewise found the
instructions troubling. 74 M.J. at 700-01. Those instructions were mandated by our
decision in United States v. DaCosta, 63 M.J. 575, 584-85 (Army Ct. Crim. App.
2006). However, it was not until United States v. Williams that we overturned the
DaCosta mandate. 75 M.J. at 630-31. The CAAF subsequently set aside this court’s
decision in Williams in light of Hills. United States v. Williams, No. 16-0416/AR,
2016 CAAF LEXIS 636 (C.A.A.F. 8 Aug. 2016). However, nothing in the Hills
decision calls into question Williams treatment of DaCosta. Rather, the Hills court
likewise found the DaCosta instructions troubling. 75 M.J. at 356-57.
6
 Judge Kravitz’s ruling was not published but is available at
https://ecf.ctd.uscourts.gov/doc1/04111326596.



                                           8
GUARDADO—ARMY 20140014

             commission of another offense or offenses of child
             molestation is admissible.”).

Ruling and Order at *4, United States v. Rivera, No. 3:05-cr-00261-MRK (D. Conn.
Jun. 16 2006) ECF No. 48. To the extent the district judge’s ruling was conditional,
the logic of this ruling was specifically affirmed by the Second Circuit. The
appellate court found there could be no prejudice because:

             Federal Rule of Evidence 414 provides that “[i]n a
             criminal case in which the defendant is accused of an
             offense of child molestation, evidence of the defendant's
             commission of another offense or offenses of child
             molestation is admissible, and may be considered for its
             bearing on any matter to which it is relevant.” Fed. R.
             Evid. 414(a). The same rule defines “child” as a person
             below the age of fourteen. [Fed. R. Evid.] 414(d). As a
             consequence, proof as to counts two and three (relating to
             Brian, age thirteen) would likely have been admissible as
             to the three other counts. The Federal Rules of Evidence
             thus specifically sanction the kind of showing that Rivera
             says is impermissible and conducive to spillover.

United States v. Rivera, 546 F.3d 245, 254 (2d Cir. 2008) (emphasis added), cert.
denied, 555 U.S. 1204 (2009); see also United States v. Rogers, 474 F. App’x 463
(7th Cir. 2012). 7 That is, the Second Circuit has specifically interpreted Fed. R.
Evid. 414 as allowing propensity evidence from one charged offense to be used to
prove another charged offense.

       In United States v. Seymour, 468 F.3d 378 (6th Cir. 2006), the court reviewed
the legal sufficiency of the evidence. The question before the court was whether
there was sufficient evidence of penetration. The court found that the testimony of
the victim, combined with the testimony of unrelated victims who said they had
been penetrated (i.e. propensity), was sufficient to establish guilt. Id. at 388. The
unrelated victims listed by the court included a charged victim, as well as two



7
  The CAAF in Hills addressed the 7th Circuit’s opinion in Rogers, stating that it is a
case about severance and joinder of offenses; which it is. Hills, 75 M.J. at 354 n.1
(citing Rogers, 474 F. App’x at 464-65). However, the logic of the ruling requires
that Fed. R. Evid. 413 and 414 be interpreted to allow the use of propensity evidence
from one charged offense to prove another. That is, the court found no harm from
the joinder of unrelated offenses because spillover was permissible.



                                          9
GUARDADO—ARMY 20140014

uncharged victims whose testimony had been introduced under Fed. R. Evid.
413/414.

                        c. The Mil. R. Evid. 404(b) Instruction

       During trial the trial counsel submitted a proposed instruction on the use of
evidence under Mil. R. Evid. 404(b). The military judge invited the defense to
propose an alternative instruction. The defense neither objected to the trial
counsel’s proposed instruction nor took up the military judge’s invitation to craft
one of their own. The military judge instructed the members that, with regards to
evidence admitted to prove four offenses, the members could also consider that
evidence for its tendency, “if any” to show appellant’s “modus operandi, intent to
flirt with teenage girls, intent to gratify his sexual desires, and to prove [appellant’s]
absence of mistake.”

       Read in a certain light, the CAAF’s opinion in Hills could be considered to
apply equally to evidence introduced under Mil. R. Evid. 404(b). Here, the military
judge instructed the panel that evidence from one charged offense could be
considered to prove appellant’s “intent to gratify his sexual desires” in other charged
offenses. The CAAF’s sometimes broad language in Hills can be read to sweep both
Mil. R. Evid. 404(b) and Mil. R. Evid. 413 into its reasoning. Concerns, for
example, about the presumption of innocence being eroded by Mil. R. Evid. 413’s
application to charged conduct could also be said to apply to Mil. R. Evid. 404(b).

       However, we do not believe our superior court intended the reach of Hills to
go beyond Mil. R. Evid. 413 and 414. Strictly speaking, Mil. R. Evid 404(b)
evidence “is not admissible to prove the character of a person in order to show
action in conformity therewith.” Mil. R. Evid. 404(b). However, even assuming
that Hills was intended to reach the use of Mil. R. Evid. 404(b) evidence, as there
was no objection at trial, we fail to find plain error.

                       d. The Mil. R. Evid. 413/414 Instruction

       The military judge instructed the panel that they could consider appellant’s
“propensity or predisposition to engage in sexual assault” with respect to four
specifications. Of the four offenses for which propensity evidence was allowed,
appellant was convicted of only one—the aggravated sexual contact offense against
his daughter. Of the other three specifications of which appellant was acquitted, one
alleged appellant had raped a fellow soldier in 1998. The remaining two
specifications, which were charged in the alternative, both alleged that appellant had
rubbed his penis on the buttocks of one of his soccer players.




                                           10
GUARDADO—ARMY 20140014

                     2. How Broad is CAAF’s Decision in Hills?

       The lengthy discussion above regarding Hills is not intended to dispute our
superior court’s decision in that case, but rather to understand it in context. At
times, the CAAF’s reasoning in Hills can be read narrowly to cover limited
circumstances presented in Hills where propensity evidence was allowed when all
specifications address a single course of conduct. Thus, for example, the court
appears to limit its reasoning to the facts of Hills when it says “this Court . . . has
[never] permitted the use of Mil. R. Evid. 413 or Fed. R. Evid. 413 as a mechanism
for admitting evidence of charged conduct to which an accused has pleaded not
guilty in order to show a propensity to commit the very same charged conduct.
Hills, 75 M.J. at 354 (emphasis added). 8 Such a reading is consistent with the
CAAF decisions in Schroder and Burton, which the CAAF did not specifically
reverse or determine were wrongly decided. A narrow reading is also consistent
with the case law from federal circuit courts. Our concurring colleague reads Hills
narrowly.

       However, and undoubtedly, Hills can also be read broadly. The court’s
language was, at times, sweeping in scope, unequivocal, and would appear to apply
to cases well beyond the facts of Hills. The CAAF could have easily resolved Hills
by stating that propensity has no probative value when the offenses are part of the
same course of conduct, thereby resolving the M.R.E. 403 balancing test in favor of
the appellant. They did not, and went much further. As noted above, given the
small avalanche of cases in the appellate pipeline, whether the narrow or broad
reading is correct will have significant effects on cases that appellate courts are
likely to address over the next several years.

       In weighing these two possible readings, we find the pull of the broad reading
to be inescapable. “It is antithetical to the presumption of innocence to suggest that
conduct of which an accused is presumed innocent may be used to show a propensity
to have committed other conduct of which he is presumed innocent.” Hills, 75 M.J.
at 356 (emphasis added). While we would find some dissonance no matter how we
interpret Hills, that dissonance would be loudest if we read Hills as being limited to
cases where a propensity instruction is given to cover multiple offenses in a single




8
 Also, for example, the court noted the Article 32 investigation had recommended
against a court-martial and specifically commented on the investigating officer’s
analysis of the weight of the evidence. Hills, 75 M.J. at 352. Normally, the
recommendation of an Article 32 investigation would not have legal relevance on
appeal, again perhaps indicating the unusual facts of Hills.



                                           11
GUARDADO—ARMY 20140014

course of conduct. Accordingly, we read Hills to prohibit, under all circumstances,
giving a propensity instruction based on a charged offense. 9

       For purposes of this case, we will therefore apply the broad reading: that
propensity evidence may never be used between charged offenses, regardless of how
separate and distinct the offenses in time and place. Therefore the instruction given
in this case constituted error. 10 Accordingly, the remaining question is one of
prejudice.

                                     3. Prejudice

       Our superior court’s prejudice analysis in Hills was focused entirely on the
confusing Mil. R. Evid. 413 instructions. That court was “not convinced beyond a
reasonable doubt that the conflicting standards of proof and directly contradictory
statements about the bearing that one charged offense could have on another did not
contribute to the verdict.” Id. at 358.

       We first note the confusing nature of the Mil. R. Evid. 413 instruction used in
this case is not limited to cases that involve only charged conduct. As noted earlier,




9
  There are two possible exceptions, which as they are not raised by this case, we
need not directly address. The first is when Mil. R. Evid. 413 is used for a purpose
other than propensity. By its own terms, evidence admitted under the rule may be
considered “for all purposes for which it is relevant.” Mil. R. Evid. 413(a). While
most practitioners think of Mil. R. Evid. 413 in terms of propensity, and the CAAF’s
entire reasoning in Hills was focused on propensity, there may be a circumstance
where evidence is admitted for some other purpose. Second, the CAAF’s reasoning
for prohibiting a propensity instruction in Hills was based on an erosion of the
burden of proof and the presumption of innocence. Hills, 75 M.J. at 357. If, in a
different case, the military judge instructed the panel that they may only use
propensity evidence if they first find an offense proven beyond a reasonable doubt
(i.e. not merely a preponderance), it is unclear whether this would be permissible,
impermissible, or impermissible but harmless error under Hills. Id. (distinguishing
People v. Villatoro, 281 P.3d 390 (Cal. 2012) because the propensity evidence
stemmed from a charged offense which had been proven beyond a reasonable doubt).
10
  We note appellant did not object to the military judge’s instructions. Accordingly,
we would review for plain error. We assume without deciding that the instructional
error amounted to plain error.



                                          12
GUARDADO—ARMY 20140014

in Williams we overturned DaCosta due to several problems caused by this
instruction. 11 Williams, 75 M.J. at 630-31.

       However, while the instructions required by DaCosta are confusing and
require panel members to simultaneously consider different burdens of proof, we do
not read Hills as determining that they are per se prejudicial error. The DaCosta
instructions have been used in dozens, if not hundreds, of cases involving both
charged and uncharged conduct. See Schroder, 65 M.J. at 56 n.4 (noting the
requirement set forth in DaCosta, 63 M.J. at 583, that the proper use of Mil. R. Evid.
413 evidence requires the military judge to give a Benchbook or similar instruction
to the members that they may not convict an accused because the accused committed
or has a propensity to commit other sexual assault offenses, or use evidence
admitted under Mil. R. Evid. 413 as substitute evidence to overcome the
government’s failure of proof).

       In assessing prejudice, we find this case distinguishable from Hills for several
reasons. First, we note the CAAF has previously found instructions that included
propensity stemming from charged offenses to be harmless error. Schroder, 65 M.J.
at 56-57. As discussed above, while the CAAF found the instruction to be error, the
court found it harmless.

       Second, we believe the intertwined nature of the conduct in Hills was central
to the court’s assessment of prejudice. In Hills, where the three specifications of
sexual assault were all against the same victim as she passed in and out of
consciousness, the court found that giving multiple standards of review for what was
essentially one criminal escapade expected too much from the panel. Here, by
contrast, the victims were all unrelated and the alleged acts took place over a
decade. The danger of confusion was substantially less.

       Third, when we look at a specification-by-specification analysis, we are
unable to find prejudice to appellant when he was convicted of only one offense.
Assessing prejudice stemming from instructions is—by its nature—a specification
specific inquiry. In Hills, because the offenses all stemmed from a single course of
conduct, the court did not conduct a specification-by specification-analysis. Given
the intertwined nature of the offenses in Hills, such an inquiry would likely have
been fruitless. However, in cases such as this one, where the offenses are factually
distinct, such an inquiry is appropriate.


11
  While the CAAF set aside our decision in Williams in light of Hills, it was not
because they disagreed with our ruling regarding the DaCosta instruction. Hills, if
anything, reaffirms our reasoning in Williams that the DaCosta instructions are
problematic.



                                          13
GUARDADO—ARMY 20140014

       Central to our superior court’s decision in Hills was the concept of the
presumption of innocence. In short, the court found it “antithetical” to use
propensity evidence from one charged offense to help prove another charged offense.
75 M.J. at 356. Certainly, if under Hills, there was a violation of the presumption of
innocence as to a specification, that error results in no prejudice if the accused is
acquitted of that specification. In other words, any harm that came from violating
the presumption of innocence in a given specification is extinguished by an acquittal
of that same specification. So, when the panel acquitted appellant of the three other
specifications of sexual assault, any violation of the presumption of innocence as to
those specifications resulted in no prejudice.

       This limits our analysis to the sole remaining questionable specification, the
aggravated sexual contact with appellant’s daughter. The evidence that the panel
was told to consider included the direct evidence of the offense, as well as
propensity evidence from three other alleged sexual assaults. If the three other
sexual assaults were uncharged, there would be no Hills issue, and the panel could
have considered all the evidence to include the propensity evidence. Instead, the
other three offenses resulted in an acquittal. Thus, the question is, when weighing
the evidence as to Specification 1 of Charge I, is it legally relevant whether the
other offenses were uncharged or resulted in an acquittal? Put differently, what is
the prejudice as to Specification 1 of Charge I from the fact that the other Mil. R.
Evid. 413 evidence was charged, but resulted in an acquittal? If an acquittal of the
three other specifications extinguished any prejudice as to those specifications, does
it nonetheless effect the remaining specification?

      We are unable to articulate any prejudice. 12 Or stated differently, if
propensity evidence is permissible (i.e. non-prejudicial) had the other offenses been
uncharged, we find no legal difference as to this specification when the propensity
evidence stems from unrelated offenses that resulted in an acquittal.

      Fourth, we are convinced beyond a reasonable doubt that even if no
propensity instruction had been given, the results in this trial would have been the
same. We note that in performing our factual sufficiency review we are entirely



12
  We are aware that in Hills the accused was similarly only convicted of a single
specification. 75 M.J. at 352. However, and again, Hills had the unusual
circumstance that a propensity instruction was given for a single course of conduct
that occurred over a short time period. Id. In such a case, when the offenses run
together, the danger the panel misapplies the burden of proof is significantly greater.
Here, by contrast, the Specification 1 of Charge I was factually unrelated to the
other offenses.



                                          14
GUARDADO—ARMY 20140014

convinced of appellant’s guilt without resorting to any propensity evidence. 13 More
on point, we do not believe the propensity instruction in this case had any palpable
effect on the panel’s deliberations. We make this latter determination not so much
because the evidence that supported appellant’s conviction was strong (though we
find appellant’s daughter’s testimony to be credible), 14 but more because the
evidence in support of the offenses that the panel acquitted appellant of was quite
weak. The likelihood of prejudice from propensity evidence is greatest when the
evidence is solid and credible. In other words, weak evidence offered to show
propensity poses less danger of contributing to the verdict. If the panel did not
believe the other offenses happened, there is little danger they would rely on an
impermissible propensity inference.

       Finally, but least importantly, we find, to the extent that the military judge’s
instructions were confusing, any confusion in this case was harmless. The Mil. R.
Evid. 413 instruction included a specific instruction that the panel was not to
consider proof of one sexual assault as proof of other sexual assaults:

             The accused may be convicted of an alleged offense only if
             the prosecution has proven each and every 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 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.

(emphasis added). As the italicized language indicates, the panel here was
specifically instructed that proof of one sexual assault carried no inference that
appellant committed any other sexual assaults.



13
  We do not mean to imply as a matter of logic that, because we find the
specification factually sufficient, any error was harmless beyond a reasonable doubt.
14
  With regard to the weight of the evidence, we note that the defense’s attempt at
trying to discredit the daughter’s testimony had the opposite of the intended effect.



                                           15
GUARDADO—ARMY 20140014

       One may reasonably wonder the point of the instruction. The military judge
prohibited any “inference” that the accused committed one sexual assault because he
committed other sexual assaults. In other words, the panel was instructed they were
not allowed to give propensity any legal weight. The net effect of the instruction
was to follow Mil. R. Evid. 413 (as understood by the judge at the time), but then
instruct the panel in a manner that gave it no weight.

      Accordingly, we find any confusion in the military judge’s instruction was
harmless beyond a reasonable doubt.

                             B. The Preemption Doctrine

       The five specifications of Charge III all alleged appellant engaged in sexually
explicit communications with the girls on his soccer team. Specification 3, however,
was the only offense that alleged appellant’s conduct constituted the offense of
“indecent language.” See Manual for Courts-Martial, United States (2008 ed.)
[hereinafter MCM, 2008] pt. IV, ¶ 89. The other four offenses alleged appellant’s
speech constituted a general disorder. Appellant alleges the court-martial lacked
subject matter jurisdiction over Specifications 1, 4, and 5 of Charge III because of
the preemption doctrine. 15 Specifications 1, 4, and 5 of Charge III all alleged
appellant communicated with children using sexually explicit language, but did not
allege that appellant’s speech was “indecent.” 16 As the government appeared to
concede at trial, this charging decision was intentional.


15
  In his brief, appellant only argues that Specifications 1, 4, and 5 of Charge III
should be dismissed under this theory. However, Specification 2 would equally fall
under appellant’s reasoning.
16
  While discussing panel instructions with the military judge, civilian defense
counsel raised the issue of whether the general disorder offenses were
constitutionally problematic in that they criminalized appellant’s speech in violation
of the First Amendment. The civilian defense counsel requested an instruction to
the panel on the First Amendment. The military judge correctly saw this request not
as an instructional issue, but rather as a motion to dismiss. After noting that
appellant had not filed any motion, the military judge invited the civilian defense
counsel to provide her with “whatever you can find that supports your position on
First Amendment grounds in relation to these Article 134 offenses.” She then stated
that she would consider whatever he submitted. It appears appellant did not follow
up on the military judge’s invitation.

If raised, the relevant question would be to what extent a statement that satisfied the
terminal elements of Article 134, UCMJ, nonetheless is protected by the First

                                                                       (continued . . .)
                                          16
GUARDADO—ARMY 20140014

       Appellant argues the general disorders were preempted by the enumerated
Article 134 offense of “Indecent Language.” Appellant further argues as the error is
“jurisdictional,” then appellant’s failure to object at trial is of no consequence, as
matters of jurisdiction may be raised at any stage. R.C.M. 905(e). We disagree that
the preemption doctrine (as appellant uses the term) is jurisdictional. We further
disagree that the offenses were preempted.

                     1. Jurisdiction and the Preemption Doctrine

       Both sides agree the preemption doctrine is “jurisdictional” and, therefore,
any failure to raise it at trial did not forfeit the issue. As we disagree, we will
discuss the matter in some depth.

       Both appellant and the government rely on United States v. Robbins, 52 M.J.
159 (C.A.A.F. 1999), for the proposition that the preemption doctrine is
jurisdictional. In Robbins, the accused had been convicted of violating an Ohio law
that had been assimilated into federal law by the Assimilative Crimes Act, 18 U.S.C.
§ 33 (ACA), and charged as a Clause 3 violation of Article 134, UCMJ. MCM, 2012
ed., pt. IV, ¶ 60.c.(4).

       “The federal Assimilative Crimes Act (ACA) assimilates into federal law, and
thereby makes applicable on federal enclaves such as Army bases, certain criminal
laws of the State in which the enclave is located.” Lewis v. United States, 523 U.S.
155, 158 (1998). “The ACA’s basic purpose is one of borrowing state law to fill
gaps in the federal criminal law that applies on federal enclaves.” Id. at 160. One
element of the ACA is that the conduct in question has not been “made punishable
by any enactment of Congress. . . .” 18 U.S.C. § 13(a) (2012). In other words, as a
gap-filling statute, it does not apply if there is already a federal law that covers the
offense. Thus, the ACA has as an element of the offense that the conduct is not
otherwise proscribed by federal law. That is, the ACA has as an element a
“preemption” issue. If there is already a federal law on point (to include enumerated
offenses in the UCMJ), the ACA is not applicable. However, as an element of the
offense, the preemption issue is unique to the ACA. Reading Robbins in this light


(. . . continued)
Amendment. However, as appellant did not preserve this issue at trial (and did not
raise it on appeal), we are presented with an entirely undeveloped record in which
neither party attempted to address the issue. The burden is on appellant to establish
plain error. United States v. Parker, 71 M.J. 594, 621 (C.A.A.F. 2012); see also
United States v. Priest, 45 C.M.R. 338, 343-44 (C.M.A. 1972) (discussing
application of the First Amendment to Article 134, UCMJ); United States v. Rapert,
75 M.J. 164, 171 (C.A.A.F. 2016) (applying Priest).



                                          17
GUARDADO—ARMY 20140014

reveals the CAAF’s opinion regarding jurisdiction was limited to a statutory
interpretation of the ACA.

             We hold that the preemption issue was not waived by
             appellant’s guilty plea. . . . R.C.M. 905(e) provides that
             lack of jurisdiction . . . [is] not waived by failure to raise
             the issue at trial. In this case, the issue relates to subject-
             matter jurisdiction. If the offense was improperly
             assimilated, it was not cognizable by a court-martial.
             Thus, we hold that the preemption issue was not waived
             by the guilty plea or appellant's failure to raise it at trial.

Robbins, 52 M.J. at 160 (emphasis added). 17 As the italicized text indicates, the
“jurisdictional” issue in Robbins was limited to the improper assimilation of an
offense under the ACA. In other words, the holding in Robbins is based on the
statutory interpretation of the ACA not an interpretation of Article 134. As an issue
of statutory interpretation, the CAAF’s holding is limited to the statute it
interpreted.

       Admittedly, the court in Robbins, in other parts of the opinion, appears to
have discussed the “preemption doctrine” interchangeably with the preemption
“element” of the ACA. And, certainly some of the same issues are at play. The
similarity of the terms, the similar phrasing of the statutes, and the similar policy
concerns may breed some confusion. However, we do not believe the CAAF
intended to find that the preemption doctrine was jurisdictional outside of the ACA
for a couple of reasons.

       First, since its inception, the preemption doctrine has been based on
prudential concerns, not as a matter of statutory interpretation. See United States v.
Norris, 2 U.S.C.M.A. 236, 8 C.M.R 36 (1953); United States v. Herndon, 15
U.S.C.M.A. 510, 36 C.M.R. 8 (1965) (referring to the opening phrase of Article 134
as a “disclaiming phrase”); but see United States v. McCormick, 12 U.S.C.M.A. 26,
30 C.M.R. 26 (1960). For example, in United States v. Gomez, 46 M.J. 241, 246
(C.A.A.F. 1997) the CAAF found that the offense of assault with intent to commit
rape was not preempted, but only because of the doctrine of stare decisis.



17
  We note that the CAAF’s opinion in Robbins equated the term “jurisdiction” in
R.C.M. 905(e) with “subject matter jurisdiction.” The drafter’s analysis indicates
that the rule was intended to refer to the jurisdiction of the court. See MCM, App.
22, Analysis of R.C.M. 905(e), A21-54 (referring to paragraph 67b of the 1969
manual and Fed. R. Crim. Proc. 12).



                                           18
GUARDADO—ARMY 20140014

       Second, the CAAF has on occasion applied the preemption doctrine such that
one Article 134 offense preempts another Article 134 offense. In United States v.
Taylor, the CAAF held the Article 134 offense of solicitation preempted a general
disorder offense. 23 M.J. 314 (C.M.A. 1987); see also United States v. Manos, 8
U.S.C.M.A. 734, 25 C.M.R. 238 (1958); United States v. Downard, 6 U.S.C.M.A.
538, 20 C.M.R. 254 (1955). While it is unlikely that an intra-Article 134 application
of the preemption doctrine is valid given subsequent precedents, (discussed below),
it weighs against the preemption doctrine being historically viewed as a matter of
subject matter jurisdiction. Article 134 cannot lack subject matter jurisdiction over
conduct because it is preempted by an Article 134 offense that has subject matter
jurisdiction over the conduct. In other words, if certain conduct is prohibited by
clause 1 or 2 of Article 134, then Article 134 conveys subject matter jurisdiction
over that conduct, which is what subject matter jurisdiction is. Which is not to say
the preemption doctrine is not good policy. For prudential, prophylactic, and
perhaps other purposes, the doctrine–a child of both case law and Presidential rule 18–
limits the scope of Article 134 for good reason.

       Similarly, at least as applied here, appellant’s argument regarding subject
matter jurisdiction is circular. Appellant’s argument is that the Article 134 offense
of indecent language preempts the Article 134 general disorders of which he was
convicted. That is, appellant’s argument is that one Article 134 offense preempts
another Article 134 offense. It simply cannot follow that an Article 134 offense
lacks subject matter jurisdiction over a general disorder offense because the Article
134 offense has subject matter jurisdiction over the offense of indecent language.

     Thus, we find the preemption doctrine, at least when applied outside of the
ACA, is not a question of subject matter jurisdiction. Accordingly, we disagree with



18
   The President’s explanation of the preemption doctrine is somewhat unique in the
MCM. It states “The preemption doctrine prohibits application of Article 134 to
conduct covered by Articles 80 through 132.” MCM, 2012, pt. IV, ¶ 60.c.(5)(a).
Notably, the rule is descriptive, not proscriptive. That is, by its own terms, it does
not prohibit anything, but rather states that “the preemption doctrine prohibits. . . .”
It refers to an authority (presumably case law) outside of itself. For example,
written as a proscriptive rule, it could have said “Article 134 shall not be applied to
conduct covered by Articles 80 through 132.” The CAAF has described the
President’s explanation of the preemption doctrine as “merely codif[ying] existing
military law.” United States v. McGuinness, 35 M.J. 149, 151 (C.A.A.F. 1992). In
McGuinness, the CAAF rejected the appellant’s claim that the President’s rule
created “a new preemption doctrine, more stringent than the previous common-law
doctrine.” Id. at 152.



                                           19
GUARDADO—ARMY 20140014

appellant’s contention that issues regarding the preemption doctrine were preserved
because of a lack of subject matter jurisdiction.

       In this regard, we note that we are not in agreement with some of our sister
courts. In United States v. Jones, the Air Force court stated that the preemption
doctrine was jurisdictional, citing Robbins. 66 M.J. 704, 706 (A.F. Ct. Crim. App.
2008); see also United States v. Costianes, No. ACM 38868, 2016 CCA LEXIS 391,
at *3 (A.F. Ct. Crim. App. 30 Jun. 2016); United States v. Taylor, 2007 CCA LEXIS
176 (N.M. Ct. Crim. App. 23 May 2007) (unpub.). However, each of these cases
involved applying the CAAF’s interpretation of the ACA in Robbins to cases not
involving the ACA. Accordingly, we find them unpersuasive.

                     2. Were the General Disorders Preempted?

        Although we disagree with appellant’s contention that the preemption doctrine
is jurisdictional, we will nonetheless address the issue of whether the general
disorder offenses of which he was convicted were, in fact, preempted.

             Preemption applies only if two questions are answered in
             the affirmative:

             The primary question is whether Congress intended to
             limit prosecution for wrongful conduct within a particular
             area or field to offenses defined in specific articles of the
             Code; the secondary question is whether the offense
             charged is composed of a residuum of elements of a
             specific offense and asserted to be a violation of either
             Articles 133 or 134, which, because of their sweep, are
             commonly described as the general articles.

McGuiness, 35 M.J. at 151-52 (citing United States v. Wright, 5 M.J. 106, 110-11
(C.M.A. 1978)). We answer the first question in the negative, and therefore reject
appellant’s preemption claim.

                 a. United States v. Jones & United States v. Fosler

       In United States v. Rodriguez, we addressed “‘the viability of the preemption
doctrine after the decision in United States v. Fosler [70 M.J. 225 (C.A.A.F. 2011)]’
and United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).” ARMY 20130577, 2016
CCA LEXIS 145, at *3 (Army Ct. Crim. App. 7 Mar. 2016). We found the
preemption doctrine to have emerged altered, but viable, by application of these two
cases. We continue to so hold.




                                          20
GUARDADO—ARMY 20140014

       As noted above, under McGuiness, to trigger the preemption doctrine the
Article 134 offense must be composed of “a residuum” of the enumerated offense.
35 M.J. at 152. In Rodriguez we found that as the Article 134 “terminal element is
not present in the enumerated offenses . . . an Article 134 offense will rarely be, if
ever, a lesser included or residuum offense.” Id. at *4. It is worth briefly unpacking
our reasoning in Rodriguez.

       Historically, and when the preemption doctrine was developed, every
enumerated offense (Articles 80-132) was presumed to include as an inherent
element that the accused’s conduct was prejudicial to good order and discipline or
service discrediting. See e.g. United States v. Foster, 40 M.J. 140 (C.A.A.F. 1994).
Thus, Article 134 offenses were often lesser-included offenses of Articles 80-132:

             [W]e hold simply that, in military jurisprudence, the term
             “necessarily included” in Article 79 encompasses
             derivative offenses under Article 134. See United States
             v. Doss, 15 M.J. 409, 415 (C.M.A. 1983) (Cook, J.,
             concurring in the result) (prejudice to good order and
             discipline is a characteristic of all offenses under the
             Uniform Code; “it is merely a matter of historical accident
             that some offenses came to be assigned separate articles
             without that element, while others continue to be charged
             with the element under the general article.”).

             Thus we hold that an offense arising under the general
             article may, depending upon the facts of the case, stand
             either as a greater or lesser offense of an offense arising
             under an enumerated article.

Id. at 143. However, the CAAF explicitly overturned this reasoning in Jones. 68
M.J. at 470. After Jones and the equally important decision in Fosler, it was clear
the elements of Article 134 must be both alleged and proved.

      Accordingly, post-Jones, no Article 134 offense has been found to be a lesser
included offense of an enumerated offense. See e.g. United States v. McMurrin, 70
M.J. 15 (C.A.A.F. 2010) (negligent homicide not a lesser-included offense of
manslaughter). The flipside of that same coin is that it is difficult for an Article 134
offense to be composed of a “residuum” of an enumerated offense. Every Article
134 offense has an element that the enumerated offense lacks. Hence our skepticism




                                          21
GUARDADO—ARMY 20140014

in Rodriguez that “an Article 134 offense will rarely be, if ever, a lesser-included or
residuum offense.” Rodriguez, 2016 CCA LEXIS 145, at *3. 19

       Thus, while the preemption doctrine continues to be good law, its
applicability has been significantly changed by intervening case law. In his dissent
in Jones, Judge Baker predicted this issue by stating the Jones decision “eliminated”
the issues of multiplicity (as the elements would no longer align) and preemption.
Jones, 68 M.J. at 474 n.2 (Baker, J., dissenting). While we do not find the
preemption doctrine has been “eliminated” as Judge Baker suggested, the scope of
the doctrine must be read in the light of the CAAF’s decisions in Jones and Fosler.

                        3. Preemption as Applied to this Case

       Applying the McGuiness test to this case, it is clear appellant’s argument falls
short. Congress did not intend to occupy the field with the offense of indecent
language. Congress has not spoken on the matter one way or the other. Rather it is
the President who has defined the offense of indecent language. We cannot equate
the President’s enumeration of indecent language as being the same as an enactment
by Congress for several reasons.

       First, when the President lists elements of an offense under Article 134 the
President does not create a substantive criminal offense, but simply provides
“guidance to judge advocates under his command regarding potential violations of
the article” by “merely indicating various circumstances in which the elements of
Article 134, UCMJ could be met.” Jones, 68 M.J. at 471-72; Fosler, 70 M.J. at 231
(“[T]he President does not have the authority to decide questions of substantive
criminal law.”). Accordingly, as the President cannot create a new offense, the
enumeration of an offense under Article 134 cannot preempt another Article 134
offense under McGuiness.

       Second, the President’s explanation of the preemption doctrine states in its
clear terms that its applicability is limited to Articles 80-132. MCM, 2012, pt. IV, ¶
60.c.(5).

     Third, the overwhelming majority of case law has limited the scope of the
preemption doctrine to Articles 80-132. See McCormick, 12 U.S.C.M.A. at 28, 30
C.M.R. at 28 (a simple assault and battery under Article 128, UCMJ may not be


19
  A holistic view may be that the interests the preemption doctrine once sought to
address are now first addressed by reinforced notions of multiplicity, unreasonable
multiplication of charges, and increased emphasis on notice and proof when it comes
to Article 134 offenses. See Quiroz, 55 M.J. at 338.



                                          22
GUARDADO—ARMY 20140014

converted to an Article 134 offense of battery of a child by adding an age element);
United States v. Marcelle, 2015 CCA LEXIS 22, *5 (Army Ct. Crim. App. 26 Jan.
2015 (sum. disp.) (false official statement, covered by Article 107, UCMJ,
improperly charged under Article 134); United States v. Byard, 29 M.J. 803
(A.C.M.R. 1989) (perjury, in violation of Article 131, UCMJ, improperly charged as
false swearing under Article 134, UCMJ); but see Taylor, 23 M.J. 314; Manos, 8
U.S.C.M.A. 734, 25 C.M.R. 238; Downard, 6 U.S.C.M.A. 538, 20 C.M.R. 254.

       Fourth, applying the preemption doctrine internally to Article 134 would have
serious ramifications regarding the future application of Article 134. Consider, for
example, our sister court’s recent decision in United States v. Hackler, 75 M.J. 648
(N-M. Ct. Crim. App. 2016). In that case, the court faced an equal protection
challenge to a Article 134 offense of sexual misconduct. There, the appellant
complained that by its own terms, the offense was discriminatory as it only applied
to heterosexual sexual intercourse. Id. at 655. However, the court found no equal
protection problem as a homosexual sexual act, although not listed by the President,
would be similarly punishable under Article 134. Id. at 656. The Hackler court’s
reasoning would have failed if the enumeration of one offense (applying only to
heterosexual sex) would have preempted the offense as applied to homosexual sex.

     Accordingly, appellant’s general disorder offenses under Article 134 were not
preempted by the Article 134 offense of indecent language.

                               C. Interview of Witnesses

       Near the middle of the trial, in an Article 39(a), UCMJ, session, the
government complained to the military judge that several of the defense witnesses
refused to be interviewed by the trial counsel. The military judge ruled that the
defense witnesses would not be allowed to testify unless they first agreed to be
interviewed by the trial counsel. The trial counsel first addressed the accused’s
wife:

             TC: . . . I’d ask that she not be able to testify until she’s
             willing to talk to me.

             MJ: Okay.

             TC: The second witness has not returned my phone calls
             for months from the defense. I just ask that [the defense]
             not be able to call those until I have a change to talk to
             them.

             MJ: Well, of course. Thanks for bringing that to my
             attention . . . [Addressing defense] If you want them to be

                                           23
GUARDADO—ARMY 20140014

             witnesses, they will submit to interviews with the
             government, or they just won’t testify. So that’s up to the
             witnesses and you.

             [. . .]

             TC: . . . And, Your Honor, I’m not blaming the defense in
             any way.

             MJ: I’m sure.

             TC: And I don’t think it has anything to do with them. I
             just want to make sure the court knows . . .

       Although not raised by appellant, we find the military judge erred when she
conditioned the testimony of fact witnesses on subjecting themselves to an interview
by opposing counsel. 20 We find no authority for a military judge to order an
“interview” of a civilian lay witness; and absent findings of misconduct, no
authority to bar the testimony of such a witness for failing to submit to an interview.

        Article 46, UCMJ governs compulsory process in courts-martial and states
that “[p]rocess issued in court-martial cases to compel witnesses to appear and
testify and to compel the production of other evidence shall be similar to that which
courts of the United States having criminal jurisdiction may lawfully issue . . . .” 10
U.S.C. § 846 (2012) (emphasis added). In other words, by its own terms compulsory
process is limited to producing witnesses to “appear and testify” and does not
include a requirement that the witness first agree to be interviewed. Additionally, a
military court cannot exercise greater authority in this area than the “courts of the
United States.”

       While Article 46, UCMJ, also states the “trial counsel, the defense counsel,
and the court-martial shall have equal opportunity to obtain witnesses and other
evidence” we do not believe this can serve as a basis to compel interviews. First,
the language specifically limits itself to the ability to “obtain witnesses.” Second,
the provisions in Article 46, UCMJ, apply equally to the trial counsel, the defense


20
   We note, for example, that the Rules of Professional Conduct would not prohibit
the defense counsel from advising a client’s family member “to refrain from
voluntarily giving relevant information” to the trial counsel. See Army Reg. 27-26,
Legal Services: Rules of Professional Conduct for Lawyers, R. 3.4 (“Fairness to
Opposing Party and Counsel”) (providing an exception when “the person is a relative
. . . of a client”) (1 May 1992).



                                          24
GUARDADO—ARMY 20140014

counsel, and the court-martial. That is, whatever the parties’ rights under the first
phrase of Article 46, it is shared by the panel members. See UCMJ, art. 16, 10
U.S.C. § 816 (2012) (definition of a court-martial). While the court-martial may
obtain witnesses to testify, the panel members cannot conduct pretrial interviews of
witnesses.

       More broadly, outside the specific authority conveyed by the UCMJ, a
military judge’s authority over civilian participants in a court-martial is limited. We
can find no inherent authority for a military judge to compel a civilian witness to
submit to an interview. Nor do we find any authority to condition either party’s
evidence on a witness’s willingness to voluntarily submit to a voluntary pretrial
interview.

       The counsel, like the military judge, lack the authority to compel a civilian’s
cooperation in pretrial interviews. A witness may refuse to be interviewed
notwithstanding a counsel’s desperate pleas. Absent compulsory process, a witness
maintains the free will to determine the degree to which he or she voluntarily
participates in the court-martial. 21 Here, the military judge’s order could have led to
key defense witnesses not being allowed to testify because of circumstances that
were beyond the control of the defense or government.

       Notably, this case does not involve an allegation of misconduct. There was
no allegation that appellant or his attorneys had improperly impeded the trial
counsel’s access to a witness. In fact, the trial counsel specifically disavowed such
concerns.

        When it would facilitate a smooth and efficient trial, a military judge may
certainly encourage a witnesses to be interviewed voluntarily. Such encouragement
coming from a robed judicial officer may often be effective. A military judge, as a
matter of discretion, may also recess the court to facilitate such cooperation. See
UCMJ, art. 40, 10 U.S.C. § 840 (2012). However, the military judge may not
exclude admissible relevant evidence because a witness has chosen not to return the
trial counsel’s phone calls.

      While we find the military judge’s actions to be error, we nonetheless
determine appellant is not entitled to any relief. First, appellant’s failure to object


21
  We note that R.C.M. 701(e) provides that each party have the “equal opportunity”
to interview witnesses. The trial counsel was provided equal opportunity to
interview the defense witnesses when he called them and asked to speak to them.
That they may not have accepted or returned his calls does not mean he was not
provided the opportunity for an interview.



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GUARDADO—ARMY 20140014

to the military judge’s ruling forfeited the issue absent plain error. Second,
assuming without deciding that the military judge committed plain error, the defense
was not prevented from calling any witnesses, and in fact, the defense did call the
witnesses in question: Adrian Carreon and the accused’s wife. Accordingly, we can
detect no prejudice to appellant’s ability to present his case. See UCMJ, art. 59(a),
10 U.S.C. § 859(a) (2012).

             D. Unreasonable Multiplication of Charges & Multiplicity

       The government’s charging in this case was unique; although in a way that
would not warrant emulation. The charges were written broadly, with overlapping
conduct, and with some specifications being entirely subsumed by other
specifications. Appellant objected at trial preserving the error. On appeal, the
government correctly concedes several errors. In short, the charge sheet is in need
of some significant appellate attention. We review issues of multiplicity in
conformance to the decision in Blockburger v. United States, 284 U.S. 299 (1932).
Our decisions regarding unreasonable multiplication of charges are similarly guided
by the considerations set forth by our superior court in United States v. Quiroz, 55
M.J. 334, 338-39 (C.A.A.F. 2001).

                    1. The Specification of Additional Charge I;
                   Specifications 1 and 2 of Additional Charge II.

       The specifications of the additional charges all addressed the incident where
appellant cornered his niece in the hotel room, told her to undress, and tried to
unbutton her pants. The Specification of Additional Charge I alleges an assault
consummated by a battery on a child. Specification 1 of Additional Charge II
alleges an indecent assault. Specification 2 of Additional Charge II alleges an
indecent act with a child.

      Appellant alleges the offenses are unreasonably multiplied. The government
concedes that the offenses were charged in the alternative and asks that we
conditionally dismiss all but Specification 2 of Additional Charge II. We agree with
both parties that the offenses are unreasonably multiplied and will conditionally
dismiss the Specification of Additional Charge I and Specification 1 of Additional
Charge II.

                        2. Specifications 1 and 2 of Charge II

       Specifications 1 and 2 of Charge II both alleged an assault consummated by a
battery of a child. Both specifications alleged the same victim, same location, and
that the offenses happened between 1 October 2007 and 23 July 2009. The only
difference between the two specifications is that Specification 1 alleged that



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GUARDADO—ARMY 20140014

appellant touched the child “on her thigh with his hand,” whereas Specification 2
alleged a touching “on the body with his hands.”

       In his third assignment of error, appellant argues the offenses are
multiplicious because Specification 2 subsumes Specification 1. That is, every
touching “on the thigh” is also a touching “on the body.” The government responds
that the offenses are not multiplicious because they are aimed at different instances
of conduct.

        In support of their position, appellee does not cite to evidence introduced at
trial, but rather cites to the appellate exhibit that contains the government’s response
to the motion for unreasonable multiplication of charges. The motion response
simply repeats the claim that the specifications are directed at different conduct
without explanation.

       Hunting through the record, we are able to find separate instances of offensive
touching between this victim and appellant that could form the basis of a separate
battery specification. However, given the lack of clarity in the charging, the motion
response at trial, the fact that appellant properly preserved the issue for appeal, and
the lack of specificity in appellee’s brief, we agree with appellant that one of the
specifications needs to be dismissed. While there are several paths that lead to the
same result, we will agree with appellant’s assigned error that the offenses are
multiplicious as one offense subsumes the other. Accordingly, we will dismiss
Specification 2 of Charge II.

                          3. Specifications 1-5 of Charge III

       Specification 1, 3, 4, and 5 of Charge III alleged violations of Article 134 for
the sexual comments that appellant made to the girls on his soccer team. Each
alleged a specific victim and also alleged that appellant had made sexually
inappropriate or indecent statements, including commenting on their “nice body” or
“nice ass,” asking about their sexual experiences, or discussing appellant’s
experience as a “swinger.”

       Specification 2 of Charge III also alleged that appellant made inappropriate
comments to children, but was substantially less specific. The specification did not
allege any specific victim, but instead alleged that appellant was directed at
“females under the age of 18.” The alleged misconduct was asking these girls “to
be his friend of Facebook, send messages on Facebook . . . and make inappropriate
comments . . . without their parents [sic] knowledge or permission . . . .”




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GUARDADO—ARMY 20140014

       In his eighth assignment of error, appellant alleges that Specification 2 is
multiplicious with the other four specifications because it is a “catch-all” offense
that encompasses the conduct contained in Specifications 1, 3, 4, and 5. 22 The
government responds, without citation to the record, that Specification 2 addresses
distinct conduct.

      For the same reasons as discussed in regards to Specifications 1 and 2 of
Charge II, we agree with appellant and will dismiss Specification 2 of Charge III.

                       4. Specifications 3 and 4 of Charge III

       Specification 3 of Charge III alleged a violation of Article 134 when the
accused used indecent language when he told one of his teenage soccer players that
she had “a nice ass.” Specification 4 of Charge III charged the same misconduct,
but alleged a general disorder. That is, Specification 4 omitted the element that the
accused’s language was “indecent.”

       In his first assignment of error, appellant argues that the offenses are
unreasonably multiplied. The government concedes that they were charged in the
alternative and asks us to conditionally dismiss specification 4 of Charge III. United
States v. Elespuru, 73 M.J. 326, 329 (C.A.A.F. 2014) (“[W]hen a ‘panel return[s]
guilty findings for both specifications and it was agreed that these specifications
were charged for exigencies of proof, it [is] incumbent’ either to consolidate or
dismiss a specification.” (quoting United States v. Mayberry, 72 M.J. 467, 467-68
(C.A.A.F. 2013)). We find the charges to be multiplicious, and will accordingly
dismiss (without condition) Specification 4 of Charge III.

                                   CONCLUSION

      Specification 2 of Charge II, and Specifications 2 and 4 of Charge III are
dismissed. The Specification of the Additional Charge and Specification 1 of
Additional Charge II are conditionally dismissed. See United States v. Briton, 47
M.J. 195, 203 (C.A.A.F. 1997) (J. Effron concurring); United States v. Hines, 75
M.J. __, 2016 CCA LEXIS 439, *7-8 n.4 (Army. Ct. Crim. App. 27 Jul. 2016);
United States v. Woods, 21 M.J. 856, 876 (A.C.M.R. 1986). Our dismissal is
conditional on the Specification of the Additional Charge and Specification 1 of


22
   In appellant’s seventh assignment of error he asserts Specification 2 of Charge III
fails to state an offense because asking someone under the age of eighteen to be
friends on Facebook is not criminal, and that making “inappropriate comments” is
too vague to constitute an offense. Our dismissal of this specification moots this
issue.



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GUARDADO—ARMY 20140014

Additional Charge II surviving the “final judgment” as to the legality of the
proceedings. See Article 71(c)(1), UCMJ (defining final judgment as to the legality
of the proceedings). The remaining findings of guilty are AFFIRMED.

       We are able to reassess the sentence on the basis of the errors noted and do so
after conducting a thorough analysis of the totality of the circumstances presented
by appellant’s case and in accordance with the principles articulated by our superior
court in United States v. Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and
United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

       In evaluating the Winckelmann factors, we first note that our action in this
case does not significantly alter the penalty landscape. 23 The gravamen of the
criminal conduct within the original offenses remains substantially the same, and the
specifications dismissed by our decision today either involve an offense charged in
the alternative, involve multiple charges for essentially the same act, or involve
conduct encompassed in another charge. In other words, the panel sentenced
appellant for essentially the same conduct encompassed in the findings of guilty we
have affirmed. The remaining offenses capture the gravamen, and the seriousness,
of appellant’s actions. Finally, we have the familiarity and experience with the
remaining offenses and can reliably determine what sentence would have been
imposed at trial. We are confident the panel would have returned a sentence to
confinement of at least seven years and eight months without the specifications we
today dismiss.

       Reassessing the sentence based on the noted errors and the entire record, we
AFFIRM the only so much of the sentence as applies to confinement for seven years
and eight months, forfeiture of all pay and allowances, and a reduction to the grade
of E-1. All rights, privileges, and property, of which appellant has been deprived by
virtue of that portion of the findings and sentence set aside by this decision are
ordered restored. See UCMJ arts. 58a(b), 58b(c), and 75(a).

      Judge FEBBO concurs.




23
  At trial, the military judge merged Specifications 3 and 4 of Charge III and
merged the Specification of Additional Charge I and Specifications 1 and 2 of
Additional Charge II for sentencing. Consequently, our action on the additional
charges, as well as Specification 4 of Charge III do not change the penalty
landscape. Our action on Specification 2 of Charge III, however, slightly reduces
the maximum sentence.



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GUARDADO—ARMY 20140014

      Senior Judge MULLIGAN, concurring:

       I concur in the result but write separately as to my colleagues’ treatment of
our superior court’s decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
I read Hills narrowly to preclude “the use of [Mil. R. Evid.] 413 or Fed. R. Evid. 413
as a mechanism for admitting evidence of charged conduct to which an accused has
pleaded not guilty in order to show propensity to commit the very same charged
conduct.” Id. at 354 (emphasis added). The criminal conduct which led to charges
in Hills involved the same victim; on the same night; in the same room. Hills should
not be read sweepingly to preclude evidence of other offenses, charged or
uncharged, on different victims, at different times and locations.


                                      FOR
                                       FORTHE
                                           THECOURT:
                                               COURT:




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




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