                       UNITED STATES, Appellee

                                    v.

                    Daniel G. JAMES, Airman Basic
                      U.S. Air Force, Appellant

                              No. 05-0374

                         Crim. App. No. 35275

       United States Court of Appeals for the Armed Forces

                       Argued December 7, 2005

                        Decided June 20, 2006

GIERKE, C.J., delivered the opinion of the Court, in which
CRAWFORD, EFFRON, BAKER, and ERDMANN, JJ., joined

                                 Counsel

For Appellant: Captain John S. Fredland (argued); Colonel
Carlos L. McDade, Lieutenant Colonel Mark R. Strickland, Major
L. Martin Powell, Major Sandra K. Whittington, and Captain
Christopher S. Morgan (on brief).

For Appellee: Major Matthew S. Ward (argued); Lieutenant
Colonel Robert V. Combs, Lieutenant Colonel Gary F. Spencer, and
Major Heather L. Mazzeno (on brief).

Military Judge:   Gregory E. Pavlik


       This opinion is subject to revision before final publication.
United States v. James, No. 05-0374/AF



       Chief Judge GIERKE delivered the opinion of the Court.

       Here we unanimously decide a question that was left

unresolved in United States v. Wright,1 namely whether there is a

temporal limitation on the admissibility of specific uncharged

sexual misconduct.2     More specifically, in the present case we

address whether Military Rule of Evidence (M.R.E.) 414

authorizes admission of Appellant’s child molestation offenses

committed after the charged offenses of child molestation.      We

conclude that the propensity evidence addressed in M.R.E. 414 is

admissible for offenses committed both before and after the

charged offenses, if it is otherwise relevant and admissible

under M.R.E. 401, M.R.E. 402, and M.R.E. 403.

       Appellant, at the time of the offenses charged, was a

twenty-year-old airman basic assigned to Offutt Air Force Base,

Nebraska.    He was serving as an advisor to a church youth group

and met MC, a fifteen-year-old female member of the youth group.


1
  53 M.J. 476 (2000) (addressing this issue in the context of
M.R.E. 413).
2
  This Court granted review of the following issue:

       I. WHETHER THE MILITARY JUDGE WHEN HE ADMITTED
          EVIDENCE THAT APPELLANT ENGAGED IN SEXUAL ACTS
          WITH ANOTHER FEMALE UNDER THE AGE OF 16 WHERE (A)
          THE ALLEGED ACTS OCCURRED SUBSEQUENT TO THE
          CHARGED ACTS, AND (B) THE EVIDENCE ADMITTED WAS
          OF SUCH AN UNFAIRLY PREJUDICIAL NATURE AS TO
          CONTRIBUTE TO THE MEMBERS ARRIVING AT A VERDICT
          ON AN IMPROPER BASIS.

    United States v. James, 61 M.J. 480 (C.A.A.F. 2005).

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United States v. James, No. 05-0374/AF


The original casual friendship between Appellant and MC

developed into a dating relationship where they hugged, held

hands, and kissed.     On June 17, 2001, the hugging and kissing

developed further.     They were in a bedroom at a friend’s house

and began to kiss.     At some point, MC removed her shirt and bra,

and Appellant kissed and touched her breasts.     At Appellant’s

suggestion, they then engaged in “clothes sex” whereby they

rubbed their genital areas against each other while their

clothes remained on.      The “clothes sex” lasted for about two

minutes.    On July 7, 2001, a virtually identical encounter

occurred at a different friend’s house.      These two incidents

resulted in the referral of two charges of engaging in indecent

acts with a female under the age of sixteen.

        At trial, over defense objection, the Government sought to

introduce evidence of a civilian conviction for attempted first

degree sexual assault of a child, a class III felony in the

state of Nebraska.     The defense objection was based on the fact

that the conduct that was the subject of the Nebraska conviction

occurred between July 15, 2001, and August 4, 2001, after the

conduct charged at Appellant’s court-martial.     The defense

contended that M.R.E. 414, which permitted the admission of

sexual misconduct with a child, in a prosecution for sexual

misconduct with a child, dealt only with the admission of prior

acts.



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United States v. James, No. 05-0374/AF


      The Government argued that the plain language of the rule

places no time restrictions on the admission of similar acts of

misconduct and that the conviction in question was particularly

relevant because it involved another minor female who met

Appellant as a result of his work with the church youth group.

      A comprehensive discussion of the issue consumes sixty

pages of the record.      The military judge ruled that he would not

allow the Government to introduce evidence of the conviction

because of the balancing he did pursuant to M.R.E. 403.     But the

military judge did allow the testimony of SB, the victim in that

case, provided her testimony about Appellant’s sexual misconduct

did not mention any lack of consent on her part.     Again, the

military judge’s ruling was rooted in a M.R.E. 403 analysis.      He

concluded that lack of consent was not alleged in the present

case and that evidence regarding lack of consent with regard to

the other offenses would be more prejudicial than probative.

      The trial proceeded on the merits, and the Government did

call SB, the victim in the civilian case.     The trial counsel

limited direct examination to the traditional introductory

questions and the fact that she met Appellant through the youth

group.   The trial counsel, complying with the limitations placed

by the military judge on SB’s testimony, restricted his

questioning regarding Appellant’s behavior to the following:




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United States v. James, No. 05-0374/AF


            Q.    [SB], was there ever a time when the accused’s

      penis touched your vagina?

            A.    Yes.

            Q.    When was that?

            A.    That was last summer.

            Q.    How many times?

            A.    Three.

            TC:   No further questions . . . .

     The defense did not cross-examine her, but the military

judge asked her two questions presented by the members.         Her

first response explained the three dates of Appellant’s sexual

misconduct as being July 16, July 23, and August 2.         In her

second response, she explained that her clothes were on and his

shorts were “halfway.”

     During his instructions on findings, the military judge

informed the members regarding the testimony of SB:

      In this case there’s been evidence presented regarding
      improper sexual contact between the accused and [SB]. This
      does not mean that the accused is guilty of the charges of
      indecent acts with [MC] to which he had pled not guilty.
      You may give such evidence no weight or such weight as you
      think it is entitled to receive. This evidence is being
      received for a limited purpose only.

      The general court-martial panel of officers convicted

Appellant as charged and sentenced him to confinement for four

months and a bad-conduct discharge.          The convening authority and




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United States v. James, No. 05-0374/AF


the Air Force Court of Criminal Appeals approved the findings

and sentence.3

        We now examine the question of the admissibility of

Appellant’s sexual misconduct with SB in his trial alleging

similar behavior with MC.

               I.   Adoption of M.R.E. 413 and M.R.E. 414

        The admissibility of uncharged misconduct has been one of

the most litigated issues in the Federal Rules of Evidence.

Prior to 1996, the admissibility of evidence of uncharged

misconduct in the military justice system was severely

restricted by M.R.E. 404(b) and the judicial application of the

rule.    The general rule was that, “Evidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith.”4     The

rule allowed evidence of bad acts to be admitted for limited

purposes,5 but the basic evidentiary rule excluded bad acts

solely to show bad character and a propensity to act in

conformance with that bad character.

        In 1996, this rule against the admissibility of bad acts to

prove a propensity to commit similar acts was turned upside down

in cases involving violent sexual behavior or sexual offenses

3
  United States v. James, 60 M.J. 870, 873 (A.F. Ct. Crim App.
2005).
4
  M.R.E. 404(b).
5
  For example, the rule permits the admission of specific acts to
show motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. Id.

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United States v. James, No. 05-0374/AF


involving minors.     Congress, as a part of the Violent Crime

Control and Enforcement Act of 1994, enacted Fed. R. Evid. 413

and Fed. R. Evid. 414.6      These rules became applicable to

military practice in 1996, and were formally adopted as M.R.E.

413 and M.R.E. 414 in a 1998 amendment to the Manual for Courts-

Martial (MCM).7

      These rules stated that in cases of sexual assault or

sexual misconduct with a child, evidence of the commission of

similar offenses, “is admissible and may be considered for its

bearing on any matter to which it is relevant.”8      No exceptions

are listed in the rules.       So, the law of evidence entered

uncharted territory.      We moved from a body of law that generally

prohibited the admissibility of uncharged misconduct to prove a

propensity to act in a similar fashion to a body of law which,

in the case of certain sex offenses, allowed the admissibility

of similar sexual misconduct to show propensity.      Consequently,

we went from a relatively strong preference against

admissibility of uncharged misconduct generally in M.R.E. 404(a)

to an exceptionally strong preference in favor of admitting



6
  Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, § 320935, 108 Stat. 1796, 2135-37.
7
  Fed. R. Evid. 413 and Fed. R. Evid. 414 became a part of the
M.R.E. eighteen months after they were enacted. See M.R.E.
1102(a). They were formally included in the MCM in a 1998
amendment to the M.R.E. See MCM, Historical Executive Orders
app. 25 at A25-40 to A25-42 (2005 ed.).
8
  M.R.E. 413(a); M.R.E. 414(a).

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United States v. James, No. 05-0374/AF


propensity evidence in the cases involving specific sexual

misconduct in M.R.E. 413 and M.R.E. 414.

      Although evidentiary scholars and experts were not

unanimously enthusiastic in their support of the changes,9 the

clear intent of Congress was to create rules that the courts

“must liberally construe” so that factfinders could accurately

assess a defendant’s criminal propensities and probabilities.10

In Wright, we addressed the constitutional concerns regarding

the rules and upheld the admissibility of this type of

propensity evidence.11      Our conclusion in Wright is consistent

with the decisions of other appellate courts addressing the

constitutionality of Fed. R. Evid. 413 and Fed. R. Evid. 414.12

      In light of the common history and similar purpose of

M.R.E. 413 and M.R.E. 414, there is no need to distinguish the

two rules for the purpose of our discussion of the granted

issue.

      II.   The Application of the Rules to Subsequent Acts

      Although the constitutionality of M.R.E. 413 and M.R.E. 414

is resolved, Appellant raises a less settled question:      Does the

new preference in favor of the admissibility of bad acts in

9
   See 1 Steven A. Saltzburg, Lee D. Schinasi & David A.
Schlueter, Military Rules of Evidence Manual § 414.02, at 4-212
n.240 (5th ed. 2003).
10
    Id. at 4-212-13 (quoting the floor statement of Rep. Susan
Molinari).
11
    53 M.J. at 481-82.
12
    See id. at 482 (providing a list of cases from the federal
circuits upholding Fed. R. Evid. 413 and/or Fed. R. Evid. 414).

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United States v. James, No. 05-0374/AF


cases alleging sexual assault or child molestation apply only to

behavior taking place prior to the misconduct alleged in the

case being tried?     The court-martial charges against Appellant

related to alleged misconduct on June 17, 2001, and July 7,

2001.    The prosecution evidence offered under M.R.E. 414 took

place between July 15, 2001, and August 4, 2001, after the

charged offenses.     Appellant asserts that his misconduct after

the charged offenses is not admissible under M.R.E. 414.

        Although the issue confronting this Court is not

specifically addressed in the legislative history, the

historical discussion regarding Fed. R. Evid. 413 and Fed. R.

Evid. 414 speaks in terms of “past similar transgressions” or

“past sexual offenses.”13      Indeed, a Senate cosponsor of the

legislation spoke on the floor of the Senate about the rules

“establishing a general presumption that evidence of past

similar offenses . . . is admissible at trial.”14       A similar

statement by the primary House of Representatives sponsor of the

legislation focuses on prior crimes.15       The Drafters’ Analysis to

the 1998 amendment to the MCM states that M.R.E. 413 and M.R.E.

414 are “intended to provide for more liberal admissibility of

character evidence in criminal cases” involving child

13
   Wright, 53 M.J. at 486 (Gierke, J., concurring in part and
dissenting in part).
14
   140 Cong. Rec. S12990 (daily ed. Sept. 20, 1994) (statement of
Sen. Robert Dole).
15
   140 Cong. Rec. H8968, at 8991-92 (daily ed. Aug. 21, 1994)
(statement of Rep. Molinari).

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United States v. James, No. 05-0374/AF


molestation and sexual assault “where the accused has committed

a prior act” of sexual assault or child molestation.16      Although

the historical discussion speaks in terms of past acts it does

not expressly exclude any acts occurring prior to trial.      There

is therefore no express conflict between the legislation and the

legislative history.      The actual language of the rules does not

use the “prior” or “past” language, but talks instead of

“evidence of the accused’s commission of one or more offenses.”17

      In Wright, the majority of the Court did not expressly

address the question of the admissibility of prior versus

subsequent misconduct.      Appellant’s case has provided this Court

with the opportunity to look at the developments in the law in

the intervening five years, and today we unanimously conclude

that, as long as appropriate safeguards are applied, M.R.E. 413

and M.R.E. 414 are not limited to evidence of behavior taking

place prior to that charged.       We reach that conclusion for

several reasons:     (a) the plain language of the rules, (b) a

logical application of long-standing principles of relevance,

(c) a persuasive opinion by the only federal circuit court to

have addressed the issue, and (d) the existence of the

protections of M.R.E. 403 that were meticulously applied by the

military judge in this case.


16
   MCM, Analysis of the Military Rules of Evidence app. 22 at
A22-36 to A22-37 (2005 ed.).
17
   M.R.E. 413; M.R.E. 414.

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United States v. James, No. 05-0374/AF


                     A.   The Language of the Rules

      A fundamental rule of statutory interpretation is that

“courts must presume that a legislature says in a statute what

it means and means in a statute what it says there.”18

Accordingly, the plain language of M.R.E. 413 and M.R.E. 414

regarding any temporal limitation on the admissibility of

evidence is the most probative method of interpreting those

rules.   The rules simply discuss “one or more offenses” with

absolutely no mention of when the offense(s) might have

occurred.

                          B.   Logical Relevance

      Relevant evidence is that which has a tendency to make a

fact more or less probable.19       Relevancy has two components:   (1)

probative value, the relationship between the evidence and the

proposition it is offered to prove; and (2) materiality, the

relationship between the proposition the evidence is offered to

prove and the facts at issue in the case.20

      Congress, in enacting Fed. R. Evid. 413 and Fed. R. Evid.

414, and the President in adopting similar military rules, have

decided that evidence of other acts of sexual misconduct is

admissible to show a propensity to engage in that type of sexual


18
   Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992).
19
   M.R.E. 401.
20
   See id. See also Military Rules of Evidence Manual §
401.02[2].

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United States v. James, No. 05-0374/AF


misconduct.    So-called “propensity” evidence is therefore

relevant in cases of sexual assault or child sexual molestation.

We can find no reason to conclude that prior misconduct is

probative and subsequent misconduct is not.       It is the fact of

the other act that makes it probative, not whether it happened

before or after the act now charged.       The rules of relevance

therefore do not require a temporal limitation on the

application of M.R.E. 413 and M.R.E. 414.       In the application of

the M.R.E. 403 balancing discussed in subsection D, infra,

temporal factors may be important.        People certainly do change

over time and the fact that someone acts in a particular manner

does not mean that they have always acted in that manner, or for

that matter that they always will.        The acts in this case took

place within a matter of days, were similar in their sexual

nature, were similar in the fact that the girls were the same

age, and were similar in the fact that they met Appellant in the

same church group where he was a counselor.       Accordingly, we

hold that the relevance questions are easily answered in favor

of the Government.

                       C.   Other Federal Case Law

       In United States v. Sioux,21 the United States Court of

Appeals for the Ninth Circuit became the first and, so far, only

federal circuit to examine this issue.       The logic and reasoning


21
     362 F.3d 1241 (9th Cir. 2004).

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United States v. James, No. 05-0374/AF


of that opinion is sound and is consistent with our conclusions

in this case.    In addition to concluding that the plain meaning

of the rule places no temporal restrictions on the admissibility

of other offenses, the Ninth Circuit opinion looks to a rather

large body of law interpreting very similar language contained

in Fed. R. Evid. 404(b) that discusses “evidence of other

crimes.”22   The opinion provides a list of federal circuits that

have held that Fed. R. Evid. 404(b) applies to prior and

subsequent bad acts and also points out that reference to these

other crimes as “priors” is more a matter of customary usage

than a term of art.23     In United States v. Young, a case

involving Fed. R. Evid. 404(b), we joined the “prevailing

federal practice,” which did not limit “other” acts to “prior”

acts.24   We now continue down that road and conclude that the

“one or more offenses” language of M.R.E. 413 and M.R.E. 414 is

no more temporally restrictive than the “other crimes” language

of M.R.E. 404(b).

                   D.   The Safeguards of M.R.E. 403

      We remain mindful of the dangers inherent in admitting

propensity evidence:      “‘When jurors hear that a defendant has on

[another] occasion[] committed essentially the same crime as



22
   Id. at 1246-47.
23
   Id. at 1246 (quoting Edward J. Imwinkelried, Uncharged
Misconduct Evidence 2:12, at 2-75 (2003)).
24
   United States v. Young, 55 M.J. 193, 196 (C.A.A.F. 2001).

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United States v. James, No. 05-0374/AF


that for which he is on trial, the information unquestionably

has a powerful and prejudicial impact . . . .’”25

      M.R.E. 403 is designed specifically to address the unduly

prejudicial impact of otherwise admissible evidence and gives

military judges broad discretionary powers to ensure that the

probative value of evidence is not outweighed by the danger of

unfair prejudice.26     The lead opinion and one of the separate

opinions in Wright specifically noted that a careful M.R.E. 403

balancing was an essential ingredient of a constitutional

application of the rule.27      The importance of a careful balancing

arises from the potential for undue prejudice that is inevitably

present when dealing with propensity evidence.

      In this case, the military judge was concerned about undue

prejudice, was meticulous in his application of the balancing

required by M.R.E. 403, and limited the scope of the admissible

propensity evidence.      Accordingly, SB’s testimony about

Appellant’s behavior with her was very brief, and Appellant’s

conviction for that misconduct was not admitted.      Because of the

military judge’s sensitivity to the potential for unfair

prejudice, the attention of the members was properly focused on


25
   Id. at 196 n.2 (quoting United States v. Johnson, 27 F.3d
1186, 1193 (6th Cir. 1994)) (brackets in Young).
26
   United States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000).
27
   53 M.J. at 482; see also 53 M.J. at 486 (Effron, J.,
concurring in part and in the result) (agreeing that the
constitutionality of M.R.E. 413 may be sustained by applying the
safeguards embodied in M.R.E. 403).

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United States v. James, No. 05-0374/AF


what Appellant allegedly did with MC.         The trial did not become

sidetracked by a consideration of what Appellant might or might

not have done, with SB.      We strongly suggest that military

judges dealing with objections to propensity evidence proffered

under M.R.E. 413 or M.R.E. 414 make a record of their

application of M.R.E. 403.28

                                 Conclusion

      We conclude that M.R.E. 414 is not limited to prior

instances of child molestation.          We hold that the military judge

did not abuse his discretion in ruling that the propensity

evidence relating to Appellant’s subsequent misconduct was

admissible and not unfairly prejudicial.         We therefore affirm

the decision of the United States Air Force Court of Criminal

Appeals.




28
  See United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.
1998).

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