UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                     SALUSSOLIA, SALADINO, and ALDYKIEWICZ
                             Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                       Staff Sergeant ANGEL M. SANCHEZ
                          United States Army, Appellant

                                     ARMY 20140735

         Headquarters, U.S. Army Maneuver Support Center of Excellence
                        Jeffery R. Nance, Military Judge
                Colonel Robert F. Resnick, Staff Judge Advocate

For Appellant: Michael J. Millios, Esquire (argued); Lieutenant Colonel Christopher
D. Carrier, JA; Michael J. Millios, Esquire (on brief); Captain Oluwaseye Awoniyi,
JA.

For Appellee: Captain Brian Jones, JA (argued); Colonel Steven P. Haight, JA;
Lieutenant Colonel Eric K. Stafford, JA; Captain Jeremy Watford, JA; Captain Brian
Jones, JA (on brief).

                                        10 April 2019

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                         SUMMARY DISPOSITION ON REMAND
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SALADINO, Judge:

       Our court previously conducted an appellate review of this case pursuant to
Article 66, Uniform Code of Military Justice [UCMJ], affirming appellant’s
conviction and sentence. United States v. Sanchez, ARMY 20140735, 2017 CCA
LEXIS 203 (Army Ct. Crim. App. 28 Mar. 2017) (mem. op.); United States v.
Sanchez, ARMY 20140735, 2017 CCA LEXIS 470 (Army Ct. Crim. App. 17 Jul.
2017) (mem. op. on reconsideration). 1 The Court of Appeals for the Armed Forces


1
 A military judge sitting as a general court-martial convicted appellant, pursuant to
his pleas, of three specifications of violating a general order by engaging in conduct
of a sexual nature with basic trainees in violation of Article 92, UCMJ, 10 U.S.C. §
892. Contrary to his pleas, the military judge convicted appellant of an additional
specification of violating a general order, four specifications of cruelty and

                                                                              (continued . . .)
SANCHEZ—ARMY 20140735

(CAAF) subsequently granted review on the issues of whether this court misapplied
the CAAF’s controlling precedents in concluding: (1) the military judge did not
consider charged misconduct as propensity evidence, and (2) the defense counsel
“waived” this issue by failing to object at trial. The CAAF reversed this court’s
decision and returned the record to the Judge Advocate General of the Army for
remand to this court for a new review under Article 66, UCMJ.

       We have reviewed the record anew and find the military judge did consider
charged misconduct as propensity evidence. Under the circumstances of this case,
we are not convinced beyond a reasonable doubt that the use of charged misconduct
as propensity evidence did not erroneously contribute to appellant’s convictions of
ten specifications of sexual assault. Accordingly, we provide relief in our decretal
paragraph. 2

                                  BACKGROUND

       Appellant served as a drill sergeant at Fort Leonard Wood, Missouri. While
assigned to a basic training unit, appellant engaged in a range of sexual misconduct
with several female trainees including oral sex, digital vaginal penetration, groping
and touching trainees, and sexually harassing and maltreating trainees by making
sexually explicit and provocative comments to them. Appellant also sexually
assaulted and sexually harassed a fellow drill sergeant.

      Prior to trial, the government provided two notices of its intent to admit
evidence under Mil. R. Evid. 413. The first notice stated the government intended to
use charged sexual assault offenses as evidence appellant committed other charged
sexual misconduct. The government’s second notice indicated it intended to offer
uncharged misconduct. 3


(. . . continued)
maltreatment, and ten specifications of sexual assault and rape, in violation of
Articles 92, 93, and 120, UCMJ, 10 U.S.C. §§ 892, 893, and 920. The military judge
sentenced appellant to a dishonorable discharge, confinement for twenty years,
forfeiture of all pay and allowances, and reduction to the grade of E-1. The
convening authority deferred adjudged and waived forfeitures and approved the
remainder of the adjudged sentence.
2
 After due consideration, appellant’s other assigned errors, in his original and
supplemental briefs, do not merit discussion nor relief.

3
 At trial, the government made no attempt to offer evidence of uncharged
misconduct and, consequently, the admissibility of uncharged misconduct is not
before us on appeal .



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      During a closed Mil. R. Evid. 412 hearing pre-trial, the military judge asked
counsel if they were prepared to discuss the government’s Mil. R. Evid. 413 notice. 4
The defense counsel stated he did not recall receiving the motion. The military
judge responded with the following:

             Well it’s not a motion. [The government is] required to
             provide you notice so that if you object, you can file a
             motion. . . . [A]nd the 413 evidence is just – they’re
             looking for the instruction that, “If you believe he
             committed one of these, you can use that to infer that he
             might have committed the others,” like propensity . . . .
             (emphasis added).

      The defense counsel replied, “Yes, sir. We have no objection to that, sir.”

      During the trial counsel’s opening statement and rebuttal argument on
findings, he asked the military judge to consider charged misconduct as propensity
evidence.

                             LAW AND DISCUSSION

      We begin our review with a summary of the CAAF’s decision in United States
v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), and conclude appellant’s case is analogous,
warranting relief.

                   A. Mil. R. Evid. 413 and Charged Misconduct

       In Hukill, the government filed a pre-trial motion seeking to introduce
evidence of each sexual misconduct charge under Mil. R. Evid. 413 to demonstrate
Hukill’s propensity to commit the other sexual misconduct. Hukill, 76 M.J. at 220.
The defense counsel opposed the motion and the matter was litigated pre-trial. Id. at
220. The military judge issued a ruling on the record with a Mil. R. Evid. 403
analysis, and granted the government’s motion. Id. In reversing this court’s
decision, the CAAF made clear in Hukill, “that under Hills the use of evidence of
charged conduct as Mil. R. Evid. 413 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.” Id. 222; see also United States v. Hills, 75 M.J. 350

4
  Pursuant to Mil. R. Evid. 412(c)(2), a Mil. R. Evid. 412 motion, related papers, and
the record of the Mil. R. Evid. 412 hearing must be sealed in accordance with Rule
for Courts-Martial [R.C.M.] 1103A. Only matters requiring a closed hearing should
be discussed in a closed hearing. We note in this case, the Mil. R. Evid. 413
discussion should have occurred in an open hearing, and not commingled with the
sealed Mil. R. Evid. 412 matters.



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SANCHEZ—ARMY 20140735

(C.A.A.F. 2016). Our Superior Court also recognized Hukill was tried before it issued
its decision in Hills, and at that time, the common understanding of the law, as
evidenced by the Army Military Judges’ Benchbook discussion of Mil. R. Evid 413,
“was that the charged misconduct could be used as propensity evidence under [Mil.
R. Evid. 413].” Id. at 222. The CAAF further stated:

              The military judge cannot be faulted for applying the
              accepted law at the time, however, after Hills, that
              interpretation of the law was no longer correct. The
              presumption is that the military judge knows and follows
              the law is only as valid as the law itself.

Id. at 223.

       We find this case very similar to Hukill. 5 First, this case was decided prior to
the CAAF’s decision in Hills, when the common understanding of the law was that
charged misconduct could be used as propensity evidence under Mil. R. Evid. 413.
See United States v. Burton, 67 M.J. 150 (C.A.A.F. 2009); see also Dep’t Army Pam.
27-9, Legal Services, Military Judge’s Benchbook, ch. 7, n. 4 (1 Jan. 2010).
Second, like Hukill, the military judge in this case indicated on the record that he
believed Mil. R. Evid. 413 allowed the factfinder to consider charged misconduct as
propensity evidence to commit sexual assault. Although the military judge did not
rule on a motion permitting a proposed instruction like the military judge did in
Hukill, he nonetheless stated the crux of the instruction, “‘If you believe he
committed one of these, you can use that to infer that he might have committed the
others,’ like propensity . . . .” (emphasis added). This statement clearly evinces the
military judge’s understanding of the law at the time—that charged misconduct
could be used as propensity evidence. As the CAAF noted in Hukill, we also
recognize the military judge in appellant’s case cannot be faulted for applying the
accepted law at the time. Nonetheless, we find error and must test for prejudice.


5
  We note one distinction between the present case and Hukill is that in this case the
defense counsel did not object to the use of charged misconduct as propensity
evidence. However, we find that given the understanding of the law at the time of
appellant’s trial, he had no colorable objection and therefore did not waive the issue.
See, e.g., Sweeney, 70 M.J. 296, 304 (C.A.A.F. 2011). We also need not determine
if appellant forfeited his right to object on appeal through his lack of objection at
trial because we take notice of the issue pursuant to our Article 66, UCMJ, authority
given the unique nature of this case, including its tortured history. See, e.g., United
States v. Chin, 75 M.J. 220, 222-23 (C.A.A.F. 2016) (discussing the scope of the
courts of criminal appeals’ authority under Article 66 to notice error in a record not
raised by counsel); see also United States v. Conley, ARMY 20170560, 2019 CCA
LEXIS 88 (Army Ct. Crim. App. 28 Feb. 2019).



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SANCHEZ—ARMY 20140735

                                    B. Prejudice

       We next review whether the military judge’s consideration of charged conduct
as propensity evidence under Mil. R. Evid. 413 was harmless beyond a reasonable
doubt. See Hukill, 76 M.J. at 222 (citing United States v. Kreutzer, 61 M.J. 293, 298
(C.A.A.F. 2005). In assessing the prejudice of this error, we are not convinced that
there was no possibility the Mil R. Evid. 413 evidence contributed to appellant’s
convictions.

      The strength of the evidence in appellant’s case is similar to the evidence in
United States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017). In Guardado, the CAAF
considered the nature of the government’s case in that it consisted mainly of the
victims’ testimony without additional corroborating evidence. Id. at 94-95. In
appellant’s case, he was convicted of sexually assaulting seven different victims.
Similar to Guardado, with the exception of corroboration of some tangential
circumstances surrounding the sexual assaults, the bulk of the evidence supporting
appellant’s convictions rested on the victims’ testimony.

       Although we find the victims’ testimony credible, we are not convinced
beyond a reasonable doubt appellant was convicted of ten specifications of sexual
assault based solely on their testimony. Appellant’s case is not a case where the
evidence is overwhelming, thus allowing us to “rest assured that an erroneous
propensity instruction did not contribute to the verdict by ‘tipp[ing] the balance in
the [factfinder’s] ultimate determination.’” Guardado, 77 M.J. at 94 (quoting Hills,
75 M.J. at 358). Accordingly, we cannot be confident that improper propensity
evidence did not play a role in appellant’s conviction.

                                   CONCLUSION

      Upon reconsideration of the entire record, the findings of guilty as to
Specifications 1, 2, 3, 4, 7, 8, 11, 13, 14, and 15 of Charge I are SET ASIDE. The
remaining findings of guilty are AFFIRMED anew. The sentence is SET ASIDE. A
rehearing may be ordered by the same or different convening authority on
Specifications 1, 2, 3, 4, 7, 8, 11, 13, 14, and 15 of Charge I and on the sentence.

      Senior Judge SALUSSOLIA and Judge ALDYKIEWICZ concur.

                                          FOR
                                          FOR THE
                                              THE COURT:
                                                  COURT:




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




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