      This opinion is subject to revision before publication


        UNITED STATES COURT OF APPEALS
                 FOR THE    ARMED FORCES
                        _______________

                      UNITED STATES
                          Appellee
                               v.
          Alan S. GUARDADO, Master Sergeant
               United States Army, Appellant
                         No. 17-0183
                   Crim. App. No. 20140014
     Argued October 10, 2017—Decided December 12, 2017
              Military Judge: Rebecca K. Connally
   For Appellant: Robert A. Feldmeier, Esq. (argued); Captain
   Michael A. Gold and James S. Trieschmann, Esq. (on
   brief).
   For Appellee: Captain Austin L. Fenwick (argued); Colonel
   Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
   and Major Michael E. Korte (on brief); Captain Samuel E.
   Landes.
   Chief Judge STUCKY delivered the opinion of the
   Court, in which Judges RYAN, OHLSON, and SPARKS,
   and Senior Judge COX, joined.
                       ______________

   Chief Judge STUCKY delivered the opinion of the Court.

    The United States Army Court of Criminal Appeals
(CCA) held that, in light of United States v. Hills, 75 M.J.
350, 357 (C.A.A.F. 2016), the military judge committed error
in instructing the court members in Appellant’s case that
they could consider evidence of charged offenses to establish
Appellant’s propensity to commit other charged offenses, but
that the error was harmless. United States v. Guardado, 75
M.J. 889, 891 (A. Ct. Crim. App. 2016). We granted review to
determine: (1) if the military judge’s erroneous panel in-
structions were indeed harmless; and (2) whether an offense
defined by the President can preempt an Article 134, Uni-
form Code of Military Justice (UCMJ), 10 U.S.C. § 934
(2012), general disorder offense. We hold: (1) that the erro-
neous propensity instruction was not harmless; and (2) that
the government may not charge a general disorder offense if
           United States v. Guardado, No. 17-0183/AR
                      Opinion of the Court

the offense is otherwise listed as an Article 134, UCMJ, of-
fense. Therefore, we reverse in part.
                    I. Procedural History

    Appellant faced a number of charges involving sexual
misconduct with children. Contrary to his pleas, a general
court-martial with enlisted representation convicted him 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, four specifications of
committing a general disorder, one specification of indecent
assault, one specification of indecent acts, and one specifica-
tion of using indecent language with a child, in violation of
Articles 120, 128, and 134, UCMJ, 10 U.S.C. §§ 920, 928,
934 (2000 & Supp. V 2006; 2006; 2006 & Supp. I 2008). The
panel acquitted Appellant of one specification of rape, one
specification of indecent liberties with a child, one specifica-
tion of wrongful sexual contact, and one specification of as-
sault consummated by a battery.
    The court-martial sentenced Appellant to confinement
for eight years, forfeiture of all pay and allowances, and a
reduction in grade to E-1. The convening authority approved
the sentence and ordered it executed. The CCA partially af-
firmed the findings, dismissing several specifications on
grounds of multiplicity or unreasonable multiplication of
charges. Specifically, the CCA dismissed one specification of
assault consummated by a battery upon a child under the
age of sixteen and two specifications alleging general disor-
ders under Article 134. Guardado, 75 M.J. at 907. The CCA
also dismissed one specification of assault consummated by
a battery upon a child under the age of sixteen and one spec-
ification of indecent assault conditioned on the Specification
of Additional Charge I (assault on a child) and Specification
1 of Additional Charge II (indecent act on a child) surviving
final judgment as to the legality of the proceedings. Id. The
CCA affirmed only so much of the sentence as provided for
confinement for seven years and eight months, forfeiture of
all pay and allowances, and reduction in grade to E-1. Id.




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          United States v. Guardado, No. 17-0183/AR
                     Opinion of the Court

                       II. Background

    The charges against Appellant arose from several dis-
tinct incidents of sexual misconduct which spanned more
than a dozen years.
   The most serious charge of which Appellant was convict-
ed was a sexual assault he committed against his daughter,
KG, on her tenth birthday in 2008. As they drove to pick up
party supplies for her birthday party, Appellant shoved his
hand down his daughter’s pants and touched her genitals.
The members convicted Appellant of aggravated sexual con-
tact with a child.
    In another instance, Appellant accompanied his niece,
BR, on an errand to Walmart during a family reunion. In-
stead of driving directly to Walmart, Appellant drove BR to
his hotel and asked her to help him retrieve something from
his room. Upon entering the room, Appellant locked the
door, blocked the exit, and insisted that BR remove her
pants. After repeated refusals, Appellant grabbed her by the
pants and attempted to unbutton them himself. For this
conduct, members convicted Appellant of battery of a child,
indecent assault, and indecent acts.
    Appellant did not limit his attentions to his daughter and
niece. Appellant also targeted teenagers he met while
coaching a girls’ soccer team from 2007 to 2010. Several
team members came forward to accuse Appellant of indecent
and inappropriate conduct, namely telling them about his
swinger lifestyle, asking them about their sexual histories
and whether they shaved their genitals, making
inappropriate comments about their bodies, and suggesting
they work at a strip club called Teasers so he could watch
them perform. One player, SW, testified that Appellant once
touched her on her bare thigh while driving. Another player,
CH, testified that on more than one occasion, Appellant
rubbed his body against hers in an inappropriate way,
pressing his penis against her buttocks. For these acts, the
panel convicted Appellant of indecent liberties with a child,
battery, indecent language, and general disorders. The panel
acquitted Appellant of the specifications arising from his
alleged touching of CH.




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          United States v. Guardado, No. 17-0183/AR
                     Opinion of the Court

    In addition to crimes against children, Appellant was al-
so charged with the 1994 rape of VC, a fellow soldier at Fort
Rucker. The panel acquitted Appellant of this charge.
    On appeal, Appellant argues that he suffered prejudice
due to instructional errors. At trial, the military judge ad-
vised the panel members that they could use evidence of
each offense alleged in Specifications 1, 6, 7, and 8 of Charge
I to prove Appellant’s propensity to commit the other three.
These specifications all related to inappropriate touching
and concerned the molestation of Appellant’s daughter, KG;
the rape of a fellow soldier, VC; and sexual contact with one
of his soccer players, CH.
                  III. Law and Discussion

                A. Harmlessness of instructions
    “Instructional errors are reviewed de novo.” Hills, 75
M.J. at 357. As Appellant failed to object to the military
judge’s propensity instruction at trial, we review for plain
error. United States v. Davis, 76 M.J. 224, 229 (C.A.A.F.
2017) (“[T]he language of R.C.M. 920(f) … and the great
weight of our precedent clearly call for plain error review”
when an appellant fails to preserve an instructional error.);
see Rule for Court-Martial (R.C.M.) 920(f) (“Failure to object
to an instruction … constitutes waiver … in the absence of
plain error.”).
   This Court has repeatedly held that plain error occurs
when: (1) there was error, (2) such error was clear or obvi-
ous, and (3) the error materially prejudiced a substantial
right of the accused. United States v. Feliciano, 76 M.J. 237,
240 (C.A.A.F. 2017); United States v. Knapp, 73 M.J. 33, 36
(C.A.A.F. 2014). The burden lies with Appellant to establish
plain error. United States v. Maynard, 66 M.J. 242, 244
(C.A.A.F. 2008).
    At trial, the military judge instructed the panel that they
could consider evidence of four specifications of charged con-
duct “for its bearing on any matter to which it is relevant in
relation to those same offenses,” including Appellant’s “pro-
pensity or predisposition to engage in sexual assault.” Of the
four offenses for which propensity evidence was allowed,
Appellant was convicted of only one—Specification 1 of



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          United States v. Guardado, No. 17-0183/AR
                     Opinion of the Court

Charge I, the aggravated sexual contact offense against his
daughter. Appellant was acquitted of the other three specifi-
cations, all of which stemmed from alleged misconduct
against other victims.
    “In a court-martial proceeding for a sexual offense, the
military judge may admit evidence that the accused commit-
ted any other sexual offense. The evidence may be consid-
ered on any matter to which it is relevant.” Military Rule of
Evidence (M.R.E.) 413(a); see M.R.E. 414(a) (providing for
similar admission of evidence of child molestation). “This in-
cludes using evidence of either a prior sexual assault convic-
tion or uncharged sexual assaults to prove that an accused
has a propensity to commit sexual assault.” Hills, 75 M.J. at
354 (citing United States v. James, 63 M.J. 217, 220–22
(C.A.A.F. 2006)). The rules do not extend to instances of
charged conduct, however, for “[i]t is antithetical to the pre-
sumption of innocence to suggest that conduct of which an
accused is presumed innocent may be used to show a pro-
pensity to have committed other conduct of which he is pre-
sumed innocent.” Id. at 356. Accordingly, in Hills, we held
that using charged misconduct as M.R.E. 413 evidence was
an abuse of discretion and that the military judge’s at-
tendant instructions “constituted constitutional error that
was not harmless beyond a reasonable doubt.” Id. at 353.
Since Hills, we have clarified that the prohibition against
using charged conduct as “propensity evidence for other
charged conduct in the same case is error, regardless of the
forum, the number of victims, or whether the events are
connected.” United States v. Hukill, 76 M.J. 219, 222
(C.A.A.F. 2017).
    In this case, it is indisputable that the military judge
gave an instruction that violated our holding in Hills. While
we do not fault the military judge for issuing this instruc-
tion, for Hills was decided after Appellant’s court-martial,
we test those unobjected-to instructions for plain error based
on the law at the time of appeal. United States v. Girouard,
70 M.J. 5, 11 (C.A.A.F. 2011). Given our holdings in Hills
and Hukill, the military judge’s M.R.E. 413/414 instruction
constituted clear or obvious error under the law as it exists
today. The question we must answer is whether this instruc-




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          United States v. Guardado, No. 17-0183/AR
                     Opinion of the Court

tional error materially prejudiced Appellant’s substantial
rights.
    Here, the Government argues that no prejudice ensued
as Appellant was acquitted of three of the four specifications
for which the military judge allowed propensity evidence.
The CCA, reasoning that “[i]f the panel did not believe the
other offenses happened, there is little danger they would
rely on an impermissible propensity inference,” agreed and
concluded that Appellant suffered no prejudice as to
Specification 1 of Charge I. Guardado, 75 M.J. at 898–99.
We disagree.
    We are not convinced that any harm that resulted from
allowing propensity evidence from one specification was nec-
essarily extinguished by an acquittal of that same specifica-
tion. It simply does not follow that because an individual
was acquitted of a specification that evidence of that specifi-
cation was not used as improper propensity evidence and
therefore had no effect on the verdict. It is conceivable that
the panel found that Appellant committed the other three
charged offenses by a preponderance of the evidence but not
beyond a reasonable doubt. While not persuaded of Appel-
lant’s guilt to the point of convicting him, members could
still have believed that it was more likely than not that Ap-
pellant sexually assaulted SW and CH and used that evi-
dence for propensity purposes, thus violating Appellant’s
presumption of innocence. Such an outcome is exactly the
type of result we sought to guard against in Hills.
    Furthermore, we cannot escape the conclusion that Ap-
pellant suffered prejudice from the confusing nature of the
military judge’s instructions. As in Hills, the military judge
instructed the members as to two different standards of
proof that they were required to apply to the same evidence.
First, the military judge instructed the members that they
could consider evidence of charged offenses for propensity
purposes if they determined by a preponderance of the evi-
dence that the alleged offenses occurred. Next, she attempt-
ed to clarify the Government’s burden of proof and reminded
the panel that Appellant enjoyed a presumption of inno-
cence. However, although she reiterated several times that
proof of one sexual assault creates no inference of guilt as to
the other sexual assaults, her spillover instruction was qual-


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           United States v. Guardado, No. 17-0183/AR
                      Opinion of the Court

ified and still allowed members to consider Appellant’s “pro-
pensity to commit that type of offense.” As in Hills:
       [t]he instructions in this case provided the mem-
       bers with directly contradictory statements about
       the bearing that one charged offense could have on
       another, one of which required the members to dis-
       card the accused’s presumption of innocence, and
       with two different burdens of proof—preponderance
       of the evidence and beyond a reasonable doubt.”
75 M.J. at 357. These “muddled … instructions implicate
‘fundamental conceptions of justice’ under the Due Process
Clause” and raise “the risk that the members would apply
an impermissibly low standard of proof.” Id. As “[t]he juxta-
position of the preponderance of the evidence standard with
the proof beyond a reasonable doubt standard with respect
to the elements of the same offenses would tax the brain of
even a trained lawyer,” Id. at 358, we cannot deny that the
potential for confusion among members was high. We simply
cannot say “that Appellant’s right to a presumption of inno-
cence and to be convicted only by proof beyond a reasonable
doubt was not seriously muddled and compromised by the
instructions as a whole.” Id. at 357.
   This is especially true given the nature of the Govern-
ment’s case. In reviewing the factual sufficiency of the case,
the CCA found itself “entirely convinced” of Appellant’s guilt
and concluded that the result of the trial would have been
the same even in the absence of the erroneous propensity
instruction. We do not share the CCA’s confidence.
    There are circumstances where the evidence is over-
whelming, so we can rest assured that an erroneous propen-
sity instruction did not contribute to the verdict by “tipp[ing]
the balance in the members’ ultimate determination.” Hills,
75 M.J. at 358.
    This is not such a case. While we will not disturb the
CCA’s finding that KG’s testimony was credible, the lack of
supporting evidence makes it difficult to be certain that Ap-
pellant was convicted of Specification 1 of Charge I on the
strength of the evidence alone. Although it is certainly pos-
sible 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 Appel-


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           United States v. Guardado, No. 17-0183/AR
                      Opinion of the Court

lant’s conviction. Accordingly, under the circumstances of
this case, we are unable to conclude that the military judge’s
M.R.E. 413/414 instruction was harmless.1
            B. Novel Charge under Article 134, UCMJ
    Next, we address Appellant’s contention that the general
disorder offenses of which he was convicted were, in fact,
preempted. Specifically, Appellant claims that the Presi-
dent’s articulation of an Article 134, UCMJ, offense of inde-
cent language precludes the Government from charging him
with a novel Article 134, UCMJ, general disorder offense
arising from sexually charged comments he made to teenage
girls while coaching soccer.
    The President has unequivocally stated that “[t]he
preemption doctrine prohibits application of Article 134 to
conduct covered by Articles 80 through 132.” Manual for
Courts-Martial, United States (MCM) pt. IV, ¶ 60.c.(5)(a)
(2012 ed.). In other words, the preemption doctrine only
“prohibits the government from using Article 134, UCMJ, to
charge offenses that are listed in the UCMJ outside of Arti-
cle 134.” United States v. Reese, 76 M.J. 297, 302 (C.A.A.F.
2017). The Government took no such action in this case.
    While the doctrine of preemption is inapplicable to this
situation, the President has constrained the Government’s
charging strategy: “[i]f conduct by an accused does not fall
under any of the listed offenses for violations of Article 134
in this Manual (paragraphs 61 through 113 of this Part), a
specification not listed in this Manual may be used to allege
the offense.” MCM pt. IV, ¶ 60.c.(6)(c). Relying on the plain
language of the President’s guidance, this Court has held
that the government may not charge a “novel” offense if the
offense is otherwise listed as an Article 134, UCMJ, offense.
Reese, 76 M.J. at 302. In other words, if an offense is “al-
ready listed inside [Article 134’s] framework,” it may not be
charged as a “novel” general disorder offense. Id.


   1   Appellant also argues that the military judge issued a
M.R.E. 404(b) instruction that violated our holding in Hills. This
argument falls outside the scope of the granted issues, and we de-
cline to address it. See United States v. Phillips, 64 M.J. 410, 414
n.* (C.A.A.F. 2007).



                                 8
          United States v. Guardado, No. 17-0183/AR
                     Opinion of the Court

   In the instant case, the Government referred several
“novel” Article 134, UCMJ, specifications against Appellant,
two of which remain. Specification 1 of Charge III alleged in
pertinent part that:
      [Appellant] wrongfully ask[ed] Ms. SW … about her
      sexual experiences, what sexual acts she had done,
      told her she had a nice body, and ma[d]e other sex-
      ual comments to her, making her uncomfortable,
      which conduct, under the circumstances, was to the
      prejudice of good order and discipline in the armed
      forces and was of a nature to bring discredit upon
      the armed forces.
Similarly, Specification 5 of Charge III alleged that
Appellant:
      [told] MM[,] while she was assisting him with his
      soccer team, while she was under 18 years of age,
      that he and his wife were swingers, meaning [Ap-
      pellant] and his wife were conducting sexual acts
      with others at the same time, which conduct, under
      the circumstances, was to the prejudice of good or-
      der and discipline in the armed forces and was of a
      nature to bring discredit upon the armed forces.
    Part IV, para. 89 of the MCM already contains an offense
of “Indecent language” which lists three elements. The ele-
ments of an indecent language offense are:
      (1) That the accused orally or in writing communi-
      cated to another person certain language;
      (2) That such language was indecent; and
      (3) That, under the circumstances, the conduct of
      the accused was to the prejudice of good order and
      discipline in the armed forces or was of a nature to
      bring discredit upon the armed forces.
MCM pt. IV, ¶ 89.b. Notably, this offense encompasses lan-
guage or communications that are sexual in nature. See
United States v. French, 31 M.J. 57, 60 (C.M.A. 1990) (hold-
ing that language is indecent where “the particular language
is calculated to corrupt morals or excite libidinous thoughts,”
so that the appellant’s indecent language specification ade-
quately stated an offense where the appellant asked his
stepdaughter, who was under the age of sixteen, “if he could
climb into bed with her.” (internal quotation marks omitted)
(citation omitted)). Here, the gravamen of Appellant’s Article


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           United States v. Guardado, No. 17-0183/AR
                      Opinion of the Court

134 general disorder specifications was the “sexual” nature
of his comments. Despite the clear applicability of the Presi-
dent’s listed Article 134 offense, the Government elected not
to charge his conduct as such, instead choosing to charge
him with two “novel” Article 134 offenses.
   Not only is such action barred under pt. IV, ¶ 60.c.(6)(c),
but it raises important due process concerns. By using
“novel” specifications, the Government relieved itself of the
responsibility of proving the second, and arguably most
important, element of indecent language—that Appellant’s
language rose to the level of indecency. In deleting a vital
element, the Government, in effect, improperly reduced its
burden of proof. Such an outcome illustrates the reason for
the limits of pt. IV, ¶ 60.c.(6)(c), and cannot be
countenanced.
   As Appellant was charged with “novel” Article 134 of-
fenses that could have been charged as Article 134 indecent
language offenses, we hold that the “novel” offenses arising
from Appellant’s indecent language were barred by
¶ 60.c.(6)(c) and, therefore, fail to state an offense under the
UCMJ. See Reese, 76 M.J. at 302–03.
                        IV. Judgment

    The judgment of the United States Army Court of Crimi-
nal Appeals is affirmed in part and reversed in part. We af-
firm the findings as to Specifications 2, 3, and 5 of Charge I,
Specification 1 of Charge II, Specification 3 of Charge III,
and Specification 2 of Additional Charge II. The finding as to
Specification 1 of Charge I is set aside. The findings as to
Specifications 1 and 5 of Charge III are likewise set aside
and those specifications are dismissed. The sentence is set
aside. The record is returned to the Judge Advocate General
of the Army with a rehearing on Specification 1 of Charge I
and on the sentence authorized.




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