## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, CAMPANELLA, 1 WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Specialist JUVENT INO TOVARCHAVEZ United States Army, Appellant

ARMY 20150250

Headquarters, 8th Theat er Sustainment Command Gregory Gross, Milita ry Judge (trial) Timothy P. Hayes, Jr. ( DuBay hearing) Colonel Anthony T. Febbo, Staff J udge Advocate (pr etrial & reco mmendation)
Lieutenant Colonel L ajohnne A.W. Morris, S taff Judge Advocate ( addendum)

For Appellant: Captain Ryan T. Yoder, JA; Major Brian J. Sulli van, JA (on brief); Captain Ryan T. Yoder, JA; Major Brian J. Sullivan, JA (on repl y); Lieutenant
Colonel Melissa R. C ovolesky, JA; Captain R yan T. Yoder, JA; Ma jor Brian J. Sullivan, JA (on brief on specified i ssues); Lieutenant Colonel Christopher D. Carrier, JA; Captain Cody D. Chee k, JA; Major Br ian J. Sullivan , JA (on reply brief on specified issues); Major Brendan R. Croni n, JA; Major Brian J. Sullivan, JA (on supplemental brief); Major Brenda n R. Cronin, JA; Major Todd W. Stewart, JA; Major Brian J. Sulliva n, JA (on supplement al reply brief).

For Appellee: Lieutenant Colon el A.G. Courie, III, JA; Major M elissa Dasgupta Smith, JA; Captain Chr istopher A. Clausen, J A (on brief); Major Michael E. Korte, JA; Captain Christopher A. Clau sen, JA (on brief o n specified i ssues); Colonel Tania M. Martin, JA; Lieutenant Colone l Eric K. Stafford, JA; Captain Austin L. Fenwick, JA; Captain Joshua Banister, J A (on supplemental brief).

19 July 2018

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

------------------ ---------------

This opinion is issued as an unpublished opin ion and, as such, does not serve as precedent.

1 Senior Judge Campanella took a ction on this case prior to leav ing the court.TOVARCHAVEZ—ARMY 20150250

2 WOLFE, Judge:

This case returns to us for co mpletion of our Article 66, Unifo rm Code of Military Justice, 10 U.S.C. § 8 66 [UCMJ], revi ew, after a DuBay 2 fact-finding hearing. In our origin al decision we addres sed appellant’s cla im of instructional error pursuant to United States v. Hills , 75 M.J. 350 (C.A.A.F . 2016), whether appellant was entitled to a mist ake of fact instruction, and wh ether appellant’s
defense counsel were in effective. We resol ved the first two is sues against appellant,
but directed a DuBay hearing to address t he claim of ineffect ive assistance of
counsel. United States v. Tovarchavez , ARMY 20150250, 2017 CCA LEXIS 602 (Army Ct. Crim. App. 7 Sep. 2017).

BACKGROUND

Appellant was charged with two s pecifications of sexual assaul t in violation of Article 120, UCMJ, for sexuall y assaulting his fellow soldie r, Specialist (SPC) JR, on two separate occasions. An enlisted panel of a general court-martial convicted appellant only of the latter instance. The convening authority approved the adjudged sentence to a dish onorable discharge, confinement for two years, total forfeiture of pay an d allowances, and reduction to the grade of E-1.

At the completion of the DuBay hearing, we directed a dditional briefing on

the Hills assignment of error b ased on developments i n the case law since we issued our initial opinion

. We also granted app ellant’s motion to file supplemental briefings regarding the claim of ineffective assistance of coun sel. 3 With the record

now returned to this cour t, we again resolve the Hills issue and the ineffective assistance of counsel claim against appellant and adopt our pre vious opinion with respect to the mistake of fact instruction.

2 See United States v. DuBay , 17 U.S.C.M.A. 147, 37 C .M.R. 411 (1967).

3 Appellant also reques ted to file a supple mental brief on the Hills assignment of error in light of our superior court’s decision in United States v. Guardado , 77 M.J. 90 (C.A.A.F. 2017). We received appellant’s m otion just as we issued our order for additional briefing. Thus, while we denied appellant’s motion, it was on ly because it was mooted by our ord er on the same issue.TOVARCHAVEZ—ARMY 20150250

3 LAW AND DISCUSSION

A. The Hills Issue

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

Appellant offered no objection to the instr uction at trial. Th us, we test for plain error. “[I]f the accused fails to preserve the instructi onal error by an adequate objection or requ est, we test for plain error.” United States v. Williams , __ M.J. __, 2018 CAAF LEXIS 365, *7 (C.A.A .F. 27 Jun. 2 018) (citing United States v. Davis

, 76 M.J. 224, 229 (C .A.A.F. 2017)); see also United States v. Guardado , 77 M.J. 90, 93 (C.A.A.F. 2017).

Of the three part plain error test, it is now well established that the Hills
instruction was error that is clear and obvious on appeal. Acc ordingly, this opinion addresses only the th ird prong: prej udice. The question then b ecomes, “what is the appropriate measure of assessing prejudice?”

In this case of forfeited error, d oes this court determine whet her the error was harmless under Article 59(a), UCM J? Or, as the fo rfeited error is constitutional, do we determine whether the error was harmless beyond a reasonable doubt? Does appellant have the burden of est ablishing plain error? Or, to sustain the conviction, is the government requi red to prove constitu tional har mlessness ? 4

We cannot avoid these questions because, in this case, the resu lt turns on
which lens we use when assessing the evidenc e. There are cases where, in practice,
the standard for estab lishing prejudice is i rrelevant to an app ellate court’s determination of the issue. For example, when an error is gros sly prejudicial (or
harmless under an y standard), settling on the correct standard does not change the
result. This is not such a case.

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

4 Our discussion of the “burden” on a party should be understood in the context of this court’s duty to c onduct a de novo review of the record und er Article 66(c), UCMJ. Although we quote our superior court ’s and federal court ’s case law containing references to a party’ s “burden,” at l east for an is sue which does not require reference to f acts outside the authenticated record, th e application of that burden may be different in a Co urt of Criminal Appeals.TOVARCHAVEZ—ARMY 20150250

4 doubt.” On the o ther hand, recent decisi ons by the CAAF have s tated that the inquiry is whether appellant has shown material prejudice to a substantial right.

Determining the correct test cha nges both w ho has the burden of proof and what they must prove. Is it appellant’s burden to show materia l prejudice to a substantial right? Or, is it im material whether the error was preserved or unpreserved and it is the government’s bur den to prove beyond a reasonable doubt
that the error did not contribute to the ve rdict? There is a v ast difference between
the two standards. Because we s ee room for reasonable disagree ment–and our dissenting colleague does indee d disagree–we dis cuss our analys is at some length.

1. United States v. Wolford 5

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

Defense counsel did not obj ect to the military judge’s
instructions at the time of tri al. Even so, “[t]his [c]ourt
has determined that waiver must be established by

‘ affirmative action of the accused’s counsel,’ a nd not by ‘a mere failure to obj ect to erroneous inst ructions . . . .’”
United States v. Smith , 50 M.J. 451, 455- 56 (C.A.A.F. 1999) (quoting United States v. Mundy , 2 C.M.A. 500, 502, 9 C.M.R. 130, 132 (1953)) (emphasis in original). Accordingly, we review Wolford ’s instructional claims de

novo. Id. at 455. If instructiona l error is f ound, because
there are constitu tional dimensions a t play, Wolford’s claims “must be tested for pre judice under t he standard of harmless beyo nd a reasonable doubt.” United States v.
Kreutzer , 61 M.J. 293, 298 (C.A.A.F. 2005). “The inquiry for determining whether constitutional error is harmless beyond a reasona ble doubt is ‘whet her, beyond a
reasonable doubt , the error did not c ontribute to the
defendant's convicti on or sentence.’” Id. (quoting United
States v. Kaiser , 58 M.J. 146, 149 (C.A.A.F. 2003)).

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

5 62 M.J. 418 (C. A.A.F. 2006).TOVARCHAVEZ—ARMY 20150250

5 Under Wolford , there does not appear to any di fference between preserved and unpreserved constit utional error. Absent a precise affirmative waiver, we would review questions “de novo” and review any error for constitutio nal harmlessness regardless whether appellant affirmatively objected to the inst ruction or forfeited the objection.

We distinguish Wolford from this case for several reasons.

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

.

Second, the CAAF has recen tly distanced i tself from Wolford’s reasoning. In

Davis the CAAF included Wolford in a list of cases that went against the standard
articulated in R.C.M. 920(f), was against t he “precise” reading of earlier cases, and stood against “the great weight o f our precedent clearly call[i ng] for plain error
review.” Davis , 76 M.J. 229. According to Davis, a strict application of Wolford would be against the majority of the CAAF’s case law.

Third, consistent w ith the reasoning in Davis , in cases subsequent to Hills the CAAF has applied a plain error test to forfeited Hills error. We discus s those cases
below.

The dissent correctly notes that the CAAF has never explicitly overruled Wolford. 6 Indeed, the CAAF, in Hills , cited Wolford for the standard of review used
in that case. When “ instructional error is found [when] there are constitutional dimensions at play, [the appellan t’s] claims ‘mus t be tested fo r prejudice under the
standard of harmle ss beyond a reaso nable doubt.’” Hills , 75 M.J. at 357 (citing Wolford 62 M.J. at 420). 7

6 It is not for this Court to determine that the CAAF has implic itly overruled its precedent. Davis , 76 M.J. at 228 n. 2. A ccordingly, we do not view the CAAF as having overruled Wolford in Davis

.

7 Hills , of course, was a case of preserved error. We do not find Hills to be controlling preced ent in cases of unp reserved error.TOVARCHAVEZ—ARMY 20150250

6 2. United States v. Paige 8

In our initial opini on before remanding this case for a DuBay hearing

, we relied on United States v. Paige for the standard of review in cases of forfeited constitutional error. There, a divided court applied a plain e rror standard of review. Paige , 67 M.J. at 449. This is the same standar d of review applied by the CAAF in an earlier decision, United States v. Carter, wherein the cou rt stated:

The certified issue requires us to determi ne whether trial
counsel’s statements am ounted to an impermissible reference to Appellee’s Fi fth Amendment right to not testify, or whether the statem ents were a fair response to the defense’s theory of the case. In the absence of objection, we review for plai n error. R.C.M. 919(c); [ United States v. Gilley , 56 M.J. 113, 1 23 (C.A.A.F. 2001)]. Appellee must show tha t there was er ror, that the error was plain, and that the error materially prejudiced his substantial rights. See United States v. Powell , 49 M.J. 460, 463-65 (C.A.A.F. 199 8). Once Appellee meets his burden of establishing plain error, the burden shifts to
the Government to convince us that th is constitutional error was harmless beyo nd a reasonable doubt. United States v. Carpenter , 51 M.J. 393, 396 (C.A.A.F. 1999).

61 M.J. 30, 33 ( C.A.A.F. 2005). Unlike the decision in Wolford  ̧ the CAAF in Paige clearly stated appellant’s burde n to establish plain error. In our original opinion, relying on th e last sentence quoted a bove, we unde rstood the te st as first requiring appellant to prove all three ele ments of plain e rror. That is, in order to establish plain error, appellant must first establish material prejudice to a substantial right. Only, “[o]nce [appellant] meets his burden of establishing plai n error, [will] the burden shift[] to the Government to convince us th at this const itutional error was harmless beyond a reasonable doubt. Paige , 67 M.J. at 449

.

In our initial opinion we struggled to unde rstand the burden sh ift articulated
in Paige. As a matter of logic, if appellant has estab lished material pre judice to a substantial right, how could the government ever be able to sho w that the error was harmless beyond a reasonable d oubt? On appeal, a n error in a c ase cannot simultaneously: 1) materially p rejudice appellant’s rights; an d 2) be harmless beyond a reaso nable doubt.

8 67 M.J. 442, 449 (C .A.A.F. 2009).TOVARCHAVEZ—ARMY 20150250

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

The majority asserts that on ce an appellant ha s established plain, constitutional error, “ the burden shifts to the
Government” to establish tha t the error was harmless beyond a reaso nable doubt. United States v. Paige , 67 M.J. at 449 (C.A.A. F. 2009) (citing United States v.
Carter , 61 M.J. 30, 33 (C.A.A. F. 2005)).” But that language from Carter was derived f rom dictum in Powell

, 49 M.J. at 464-65, t hat was based on United States v.
Adams , 44 M.J. 251, 252 (1996), a case i n which neither the issue granted for review nor this Court's opinion discussed plain error.

Paige, 67 M.J. at 453 (Stuc ky, J. dissenting).

When we first addressed the Hills error in this case we applied Paige as we understood it. Howev er, the CAAF has sin ce issued additional o pinions addressing
forfeited Hills error.

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

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

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

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

77 M.J. at 93 (citations omitted) (emphasis added). If one ask ed whether the plain error test applies to f orfeited instruction al error, even error of a constitutional magnitude, it would appear the C AAF answered the question in Guardado.

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

Under this Court’s plain error jurisprudence, to establish plain error an appellant must demonstrate (1) error, (2)TOVARCHAVEZ—ARMY 20150250

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

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

Notably, in both Guardado and Williams the court omitted the second burden
shift that had been articulated in Paige and Carter . That is, in neit her case did the
court ask whether the error was harmless beyond a reasonable do ubt. Indeed, in
Williams , the court explicitly stated a prejudice analysis that is base d on Article 59(a), UCMJ: “Having f ound error, we must d etermine whether su ch error prejudiced Appellant’s substantial rights.” Id. at *8.

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

In Molina-Martinez v. United States , the Supreme Cour t announced the general rule for asses sing the prejud ice prong in the case of p lain error. “[T]he error must have affected the defendant’s substantial rights, ibid. , which in the ordinary

case means he or she mu st ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” 136 S. C t. 1338, 1343 (2016) (citations omitted).

Because the military justice sys tem relies on a d ifferent statu tory source for our plain error analysis, 9 it is not always clear that civilian precedents regarding plain error are applicable to mi litary appellate practice. How ever, in United States v. Lopez , 76 M.J. 151, 154 (C.A.A.F. 2017), the CAAF adopted the Molina-Martinez
standard. The CAAF summarized the plain error s tandard as foll ows:

Appellant thus “has the burd en of establis hing (1) error that is (2) clear or obvious and (3) results in material prejudice to his sub stantial rights.” United States v. Knapp , 73 M.J. 33, 36 ( C.A.A.F. 2014); see also United States v. Dominquez Benitez , 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2w 157 (200 4) (“the b urden of establishing entitlem ent to relief for pl ain error is on the defendant claiming it”). “[F]a ilure to establish any one of the prongs is fatal to a plain error claim.” United States v. Bungert , 62 M.J. 346,348 (C. A.A.F. 2006). Here, Appellant cannot establish material prejudice.

9 The Supreme Court’s decision in United States v. Olano , 507 U.S. 725 (1993) was based on an interpretation of Fed. R. Crim. Proc. 52(b). See United States v. Humpries , 71 M.J. 209, 220-2 1 (C.A.A.F. 2012); Powell , 49 M.J. 460, 46 5 (C.A.A.F. 1998).TOVARCHAVEZ—ARMY 20150250

9 In this context, material prejudice to the substantial rights of the accused occurs when an error creates “an unfair prejudicial impact on the [court members’]

deliberations.” Kna pp, 73 M.J. at 37 (alteration in original) (interna l quotation marks om itted) (citation omitted). In other words, t he appellant must show a reasonable prob ability that, bu t for the erro r, the outcome of the proceeding would h ave been different.” MolinaMartinez v. United States , 136 S. Ct. 133 8, 1343, 194 L. Ed. 2d 444 (2016 ) (internal quotation marks omitted) (citation omitted).

Id. (alterations in original); but see United States v. Haverty , 76 M.J. 199, 209 (C.A.A.F. 2017) (Stucky , J. dissenting: “In United States v. Lopez , we adopted the Supreme Court’s interpretation o f the prejudice prong of the pl ain error test: “the appellant ‘must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.’”).

In United States v. Robinson, the CAAF applied Lopez and Molina-Martinez to a case of instructional plain error that appears to be one o f constitutional magnitude. 77 M.J. 294, 299 (C.A.A.F. 2018) (citing Lopez , 76 M.J. at 154). In
Robinson , the question was whe ther appellant was p rejudiced when the mi litary judge instructed the panel on a n impermissibly low mens rea. 10 The defense had not objected. The court announced the test f or determining prejudi ce in the plain error context, citing to Guardado and Davis , as follows:

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

. . . .

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

10 The CAAF assumed error. Id.TOVARCHAVEZ—ARMY 20150250

10 77 M.J. at 299 (C.A.A.F. 2018) (quotations and citations omitt ed). Thus, to the
extent that the C AAF’s decision in Guardado may be susceptible to multiple interpretations, in Robinson the CAAF itself interpreted Guardado to require a plain error analysis.

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

Although not cases involving i nstructional error, both United States v. Riggins
and United States v. Oliver provide insight into our supe rior court’s treatment of preserved and un preserved constitutional errors. Both cases ad dressed the same
error: that the accused was convicted of a lesser-included offe nse that was not, in fact, a lesser incl uded offense. In Riggins the error was preserved and in Oliver the
error was forfeited. In Riggins the court stated for “preser ved constitutional errors, such as in the instant case, the Government bears the burden of establishing that the
error is harmless be yond a reasonab le doubt.” 75 M.J. at 85

. By contrast, in Oliver

, the error was never objected to a t trial, and the court tested to determine if appellant had met his burden of establishing “material prejudice to his s ubstantial rights.” 76
M.J. at 275.

6. Interpreting the Standard of Review

In light of Guardado, Robinson, and Williams , we understand that the appropriate prejudice analysis f or unpreserved e rror–even error of a constitutional magnitude–is whether the error materially prejudiced the substa ntial rights of appellant. Article 59(a), UCMJ. That is, if appellant meets h is burden of establishing plain e rror, the inquiry end s and we are not requi red to reach the question of whether the error was harmless beyond a reasonable doubt. We come to
that conclusion for several reasons.

First and foremost, we believe ou r superior court spoke clearly when, at the
threshold of thei r opinion in Guardado , they announced the y were reviewing the
case to determine whether the err or materially prejudiced the s ubstantial rights of appellant. 13 77 M.J. at 93. On balance, the CAAF’s decisions in Williams and

11 75 M.J. 78 (C.A.A.F. 2016).

12 76 M.J. 271 (C.A .A.F. 2017).

13 To the extent that this standard contradicts the standard annou nced in Wolford, Paige, Harcrow, or the other cases cited by the dissent, we think it best to fo llow the CAAFs more recent precedent. Wh ile we agree that these cases r emain “good law” until the CAAF says otherwise, we are stuck between what the CA AF stated over a decade ago and what they wrote last term. United States v. Hardy, __ M.J.__, 2018

(continued . . .)TOVARCHAVEZ—ARMY 20150250

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

While we acknowledge the dissent’s reasonable arguments to the contrary, in
Guardado , the CAAF addressed the Hills error within the con text of materially prejudicing a substanti al right of the accused and concluded it was unable to
determine “the militar y judge’s M.R.E. 413 /414 instruction was harmless .” Id. at 95 (emphasis added). The CAAF did not state it was unable to dete rmine the
instruction was harmle ss beyond a reasonabl e doubt. The omissi on of the phrase “harmless beyond a reasonable doubt” would not appear to be ove rsight; it would be
the whole enchilad a. We do not interpr et a citation to Hills (which is an unsurprising citation in a case discussing Hills error) as having i ntended to change the burden or degree of prejudice required that was so plainly stated at the beginning of the opinion. Nor d o we understand the C AAF to have created a Hills -specific plain error test.

Moreover the language in Williams confirms for us that t he test for prejudice is simple harmless ness. __ M.J. __, 201 8 CAAF LEXIS 365, * 13- 14. In Williams
the CAAF concluded “th e military judge’s M. R.E. 413 instruction was not harmless with respect to the Specificatio n of Charge I or Specifications 2, 3, and 4 of Charge
II.” Id. at *13. The CAAF never stated thi s error was not harmless bey ond a
reasonable doubt . Similarly, the CAAF a ffirmed Specification 1 of Charge II asserting that based on the co rroborating evidence it was “conf ident that [Williams] committed sodomy with SW by force and without h er consent.” Id. at *14. The CAAF never asserted it was–or required itself to be–confident b eyond a reasonable
doubt.

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

Second, the standa rd announced in Guardado, Williams, and Robinson appears to be similar to the standard us ed in federal civilian appellat e courts for assessing prejudice in the case of forfeited constit utional error. Recen tly, in United States v.
Cardena , the 7th Circuit summarized th e Supreme Court case law on forf eited constitutional error. While the analysis does not square on al l four corners with military plain error j urisprudence, the sum mary is informative:

But even a jury-instructi on error of constitutional dimension is subject to the familiar requ irement that the

(. . . continued) CAAF LEXIS 324, at * 9 n.5 (C.A.A.F. 5 Jun. 2018) ( “When confron ted with conflicting precedents , we generally follow the most recent dec ision.”).TOVARCHAVEZ—ARMY 20150250

12 error have harme d the defendant. See Skilling v. United
States , 561 U.S. 358, 414, 130 S. Ct. 289 6, 177 L. Ed. 2d 619 (2010) (noting th at a jury instruct ion error of the

Yates variety is subject to har mless-error review); Hedgpeth v. Pulido , 555 U.S. 57, 60, 12 9 S. Ct. 530, 172 L. Ed. 2d 388 (2008) ( same). In other word s, to constitute reversible error, the plain error must have affected the defendant’s substantial righ ts such that there is a reasonable prob ability that but for the error the outcome
of the trial would hav e been different. Molina-Martinez v.
United States , 136 S. Ct. 1338, 1 343, 194 L. Ed. 2d 444 (2016); United States v. McGuire , 835 F.3d 75 6, 2016 WL 4527557, at *2 (7 th Cir. 2016). The analysis “requires the same kind of inquir y” as harmless-error review, except that the burden is on the defendant to show prejudice.
United States v. Olano , 507 U.S. 725, 73 4, 113 S. Ct. 1770, 123 L. Ed. 2d 5 08 (1993). Defend ants have not
satisfied their he avy burden of showi ng that the error affected their substantial rights. United States v. Butler

, 777 F.3d 382, 388 (7th Cir . 2015) (calling t he plain error test “remarkably demanding”).

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

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

Accordingly, we must de termine whether the Hills error was harmless–that is, whether the “error materially pre judiced Appellan t’s substantia l rights.”

14 However, Article 5 9(a) only applies to errors of law. Compare Article 59(a), UCMJ, with Article 66(c), UCMJ.TOVARCHAVEZ—ARMY 20150250

13 7. The Error Here Was Harmless

The evidence against appellant in this case was significant and consisted of more than the compla ining witness’s testimony. The charged vic tim, SPC JR testified credibly about the offense. She reported the offense shortly after the assault. A report of a physical e xamination noted vaginal tend erness and spotting. Swabs taken during the exam revealed the presen ce of appellant’ s DNA in SPC JR’s vagina.

Text messages between appellant a nd SPC JR corrob orated her ini tial report and her in-court testimony. Appel lant had gone to SPC JR’s roo m under the pretext of returning a box to her that contained some of her military g ear. Appellant arrived
at SPC JR’s barracks and asked by text for her room number. He then texted her to open the door. However , he did not bring the box of gear. Spe cialist JR testified appellant then assaulted her agai nst her repeated protestations . Alcohol was not
involved.

After the assault, a ppellant initiated a text conversation:

Appellant: You good

Specialist JR: Nope

Appellant: N Why

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

Three days later, SPC JR reinitiat ed the conversa tion with appe llant. 15 After a brief discussion about why appe llant never br ought her box of m ilitary gear (which had been the pretext for coming to her room the night of the as sault), SPC JR specifically confronted appellant with an accusation of sexual assault. She texted appellant, “What’s weird is I told you no and y ou still forced me to have sex anyway.”

Confronted with an accusation of sexual assault, appellant apol ogized, told SPC JR he had now dropped her s tuff off at the company, and sai d “from now on im [sic] going to l eave you alone.”

15 This was a “pretext” text conve rsation in which SPC JR conduct ed the texts with an investigator from the Army C riminal Investig ation Command.TOVARCHAVEZ—ARMY 20150250

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

In sum, this was not a case th at turned only on the testimony o f SPC JR. Her testimony was corroborated by DNA evidence, a fo rensic exam, he r own contemporaneous statements, and text messages that corroborated her timeline and provided significant ev idence of appellant’s guilt and consciou sness of guilt. Appellant did not test ify or present eviden ce of a pla usible co unter-narrative that would detract from the weight of the government’s case.

Given the strength of the evidence, and th e lack of significant argument or discussion regard ing propensity, we fail to find a material pre judice to any of appellant’s substan tial rights. Indeed, t he absence of any pro pensity argument (by the trial counsel) and the lack of objection by appellant, is i ndicative of the small degree that propensity evidence and the erroneous instruction p layed at this trial.

But to the extent we are wrong, we have also considered whether the evidence is strong enough to c onvince us that the error was harmless bey ond a reasonable doubt. We do this for pu rposes of transparen cy, and s o that ou r superior court can make quick work of this opinion if we have erred . We are not c onvinced. While the evidence is strong, an d the verdict has our full confidence, th ere is a wide gulf between testing for plain error and testing for constitutional harmlessness.

As just discussed, SPC JR’s tes timony describing an assault was corroborated by independent eviden ce. But, the DNA eviden ce, for example, d id not directly contradict the defense theory of the case. While the inculpato ry text messages by appellant can be inter preted as establishing consciousness of g uilt for his crimes (and this is how w e see them), they could also be the statement s from someone who knows they have acted inappropria tely, but not cr iminally. Acc ordingly, in our weighing, the evidence in this ca se falls between the two stand ards, and necessitates this length y analysis.

B. Ineffective Assi stance of Counsel

The initial claim of ineffectiven ess centered on an email appel lant’s civilian defense counsel (CDC) sent his military defense counsel. In th e email, the CDC expressed a low opinion of his trial performance, writing, “I s crewed up crossing [the victim]. I alone w as ineffective. . . .” 16

16 In our original opi nion we noted at length that the email was an unsigned,

unauthenticated attach ment to appellant’s R.C.M. 1105 submissio ns that did not

include the CDC’s name or other r eliable indicia that it was wh at it claimed to be.

We refused to consider the email. However , based on conflictin g affidavits

(continued . . .)TOVARCHAVEZ—ARMY 20150250

15 The standard for assessing a c laim of ineffectiv e assistance of counsel is well
established. To establi sh deficient perform ance, a person chal lenging a conviction
must show that “counse l’s representation fel l below an objectiv e standard of
reasonableness.” Strickland v. Washington , 466 U.S. 668, 688 (19 84). A court considering a claim of ineffectiv e assistance must apply a “str ong presumption” that counsel’s representation was with in the “wide range” of reasona ble professional
assistance. Id. at 689. The challenge r’s burden is to show “that counsel made errors so serious that counsel was not functioning as th e ‘counsel’ gu aranteed the defendant by the Sixth Amendment.” Id , at 687.

With respect to preju dice, a challenger mu st demonstrate “a rea sonable probability that, but fo r counsel’s unprofes sional errors, the result of the proceeding
would have been different. A r easonable probab ility is a proba bility sufficient to
undermine confidence in the outcome.” Id. at 694.

We first address the weight we should giv e the civilian defense counsel’s opinion contained in an email that he was “ineffective.” We gi ve it slight weight for two reasons. First, as the Supreme Court has stated, “After an adverse verdict at
trial even the most ex perienced counsel ma y find it difficult t o resist asking whether a different strategy mi ght have been better, and, in the course of that reflection, to magnify their own res ponsibility for an unfav orable outcome.” Harrington v.
Richter , 562 U.S. 86, 109 (2011). Second, a counsel’s subjective eval uation is of only marginal relevance in resol ving an object ive inquiry. Strickland requires an objective inquiry. 466 U.S. at 688.

Accordingly, we turn t o the substance of a ppellant’s claim. We note that the scope of our remand included consideratio n of “all of appellant ’s claims of
ineffective assistance of counse l.” That is, we provided a broad mandate to consider appellant’s claims at a forum that provides for compulsory process . Accordingly, at this point, appellant has had the opportunit y to perfect the ev identiary basis for all
of his claims of couns el ineffectiveness.

(. . . continued)
unrelated to the ema il, we directed a DuBay hearing. For purpo ses of judicial

economy, our DuBay order required the m ilitary judge to exp and the fact-finding hearing to address all of appellant’s claim s of ineffectiveness , whether raised as assigned errors or raised pursuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982). In other words, since the authentication of the email could be easily

resolved at the DuBay hearing, we broadened the scope of the hearing to address the full range of appellant’s claims. At the DuBay hearing, the civilian d efense counsel agreed that he had sent the message, but explained that he was disappointed in his own performance and saw himself as ineffective, not necessarily that he was constitutionally ineffective under Strickland v. Washington.TOVARCHAVEZ—ARMY 20150250

16 1. Failure to Obtain Exculpatory Messages

Before trial, appellant told his civilian defens e counsel about messages he had
received from SPC JR over Facebo ok. Appellant claims that in t he messages, SPC JR describes the charged conduct as an act of inf idelity and ad ultery, not as a sexual assault. Appellant claims it was error not to int roduce the me ssages. At the DuBay hearing, appellant testified that before trial he had deleted the messages from his Facebook accoun t. He further testified that after trial, he went to Facebook headquarters to try to obtain the deleted messages and that he offered a $2,000 reward to anyone who could recover th e messages. Neithe r effort was
successful.

The DuBay defense counsel calle d the civilian defen se counsel, who testif ied
that while he remembered a conv ersation about Fa cebook messages , he could not recall the messages’ content. He testified that appellant told him that he had deleted the messages, and he was concern ed that this ma y be seen at the court-martial as
conduct consistent wit h a consciousne ss of guilt. He therefore sought to avoid bringing the me ssages into the trial.

On appeal, appellant argues that his civilian coun sel still sho uld have found and introduced the deleted messages because copies likely remai ned on SPC JR’s

account. 17 It is appellant ’s burden to esta blish that his c ounsel was in effective. This case has now had a fact-finding h earing. Appellant’s burden wa s not merely to prove that his counsel didn’t obtain the me ssages. Rather, it was to prove that they were obtainable by diligent counsel and to prove that the conte nt of the messages mattered (i.e. prejudice). App ellant falls shor t on both count s.

17 The DuBay judge found that the d eleted message s were not recoverable. Ap pellant asks us to reject this finding based on a common-sense understa nding of how modern
communication functions. Based on the record actually establis hed at the hearing, the military judge’s ruling is no t erroneou s. More generally, when the claim on appeal is that the trial attorney was deficient in not providin g the trial court with ‘X,’ the appellant should be providing the reviewing court with ‘X.’ Except in cases where the appellant can demonstrate that the evidence has since become unobtainable, providing the reviewing court with information he lps estab lish that
that it was obtainabl e by diligent counsel i n the first instanc e. And certainly, the reviewing court will likely nee d to have the information to det ermine whether appellant has met his burden of s howing the missi ng evidence wa s prejudicial under
Strickland. Lastly, however, counsel risk b eing hoisted on th eir own petard if they argue that the trial defense counsel was ineffective for not ob taining evidence that they themselves have not obtained.TOVARCHAVEZ—ARMY 20150250

17 2. Cross-Examination of SPC JR

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

First, he argues that his coun sel should have transcribed SPC J R’s Article 32 testimony in time for trial. To t he extent that a verbatim tra nscript was necessary (vice the a udio tape or summ arized transcript), even post- DuBay we do not have a transcription of the A rticle 32 testimony. 18 Moreover, althou gh perhaps more technically challengin g, nothing requires a witness to be impea ched (or r efreshed) with a written transcript instead of an audio recording.

Second, appellan t argues that his counsel should have confronte d SPC JR with her Article 32 testimony. At the Article 32, SPC JR testified that she did not initially believe sh e had been “raped” un til the nature of the offense had been explained to her. She also indicated she was conflicted in her feelings about what had happened with regard to he r then boyfriend. Having listene d to the audiotape, to include her explanations for the se feelings, we s ee no prejudic e under Strickland in not repeating the same line of inquiry at trial.

Third, appellant claims that his defense team failed to cross-e xamine SPC JR about two post-assault conversations she had with appellant. A ppellant in his
affidavit to this court claimed that in both conversations SPC JR referred to the sexual assault as adultery and again repeated that she did not believe she had been raped. Again, havi ng been provided a DuBay hearing to investig ate this claim,
neither side called SPC JR to determine what her testimony woul d have been if cross-examined, nor was appellan t called to testif y about these conversations. On balance, we find appellant ha s failed to meet his high burde n of showing that his
counsel was ineffective. We must evaluate counsel’s conduct “f rom the counsel’s perspective at the time.” Strickland

, 466 U.S at 689. In Harrington , the Supreme
Court wrote reliance “ ‘on the harsh light of hindsight’ to cast doubt on a tri al . . . is precisely what Strickland . . . seek[s] to prevent.” Harrington

, 562 U.S. at 89. To be sure, as the civilian defense counsel admitted at the DuBay , different choices

18 On appeal, appellant has not prov ided this court with a transc ript. Instead, appellant refers us to a disk containing the audio recording, p resumably the same
disk that was availabl e to the trial parti cipants. The disk co ntains three separate audio files. In every case, but especially a case where one cl aim of error involves a counsel’s failure to provide the tribunal with a transcript of the hearing, the court would appreciate bein g provided, if not a tr anscript, then at l east references to specific time stamps on an audio r ecording so that we may easil y find the testimony
at issue.TOVARCHAVEZ—ARMY 20150250

18 could have been made and di fferent strategies pursued. 19 However, our job is not to
determine whether couns el could have perform ed better; our job is to determine
whether counsel were acting as counsel.

The DuBay judge determined that appellant’s defense team were not deficie nt in their representat ion of appellant. 20 Accordingly, the DuBay judge did not specifically rule on whether appe llant had establ ished the prej udice prong of the
Strickland inquiry. We take the opposite a pproach. Althou gh we do not sp ecifically
disturb the DuBay judge’s ruling, we find appellant failed to e stablish a reasona ble probability that, but for counsel’s errors , the result of the p roceeding would have
been different.

CONCLUSION

The findings of guilty and th e sentence are AFFIRMED.

Senior Judge MU LLIGAN concurs.

CAMPANELLA, Senior Judge, dissenting;

The majority creates a dispute where there is none between the parties. In doing so they igno re our superior court’s controlling precedent regarding application of the harmless beyond a reasonable doubt st andard of prejudice for forfeited
constitutional error. See United Stat es v. Wolford, 62 M.J. 418, 42 0 (C.A.A.F. 2006); United States v. Harcrow , 66 M.J. 154, 16 0 (2008); United States v. Sweeney

, 70 M.J. 296, 304 (2011) . The majority conclu des “our superior court spoke clearly” regarding the st andard of mere ha rmless prejudice used to condu ct its analysis in

19 At the DuBay hearing, the civilian d efense counsel, consistent with the cont ent of post-trial emails he had sent, complained about the speed of th e court-martial and the pace in which the panel memb ers were instruc ted. He specif ically faulted himself for not objecti ng to these issues.

20 The DuBay judge did note s everal concerns about th e civilian defense cou nsel. First, he faulted the civilian defense counsel f or not having b etter pretrial coordination with the military def ense counsel. We agree, but find no prejudice. Second, he described as “difficult to justify” the civilian def ense counsel’s decision not to object to a panel member who had been a v ictim of sexual assault based on his
in-court read of her d emeanor. We disagree, as this is exactly the type of decision we will not second-guess under Strickland. Third, he desc ribed the civ ilian defense
counsel’s decision to wait until after findings t o raise a Rule for Courts-Martial [R.C.M.] 917 motion as “bafflin g.” An R.C.M. 917 motion may be raised at any time before adjournment , and since the evide nce is certainly le gally sufficient, any failure to raise the motion before findings was harmless.TOVARCHAVEZ—ARMY 20150250

19 both United States v. Guardado , 77 M.J. 90 (C.A.A.F. 2017), and United States v.
Williams , __ M.J. __, 2018 CAAF LEXIS 365 (C.A.A.F. 2 7 June 2018). I d isagree and would therefore set aside the findings of guilty. I agree with the majority’s
assessment that the instructional error here was not harmless b eyond a reasonable
doubt.

In Guardado , the CAAF relied on Hills for the proposition that instructional
error is reviewe d de novo. 77 M.J. at 93 (citing United States v. Hills , 75 M.J. 350, 357 (C.A.A.F. 2016 ). In turn, Hills relied on United States v. Wolford to assert: “If
instructional error is found [when] there ar e constitutional di mensions at play, [the appellant’s] claims mu st be tested for prej udice under the stan dard of harmless beyond a reasonabl e doubt.” 75 M.J. at 357 (quoting Wolford , 62 M.J. at 420 (internal quotatio ns omitted)).

Just as in this case, Wolford involved forfeited constitu tional error where the “[d]efense counsel di d not object to the mi litary judge’s instr uctions at the time of
trial.” 62 M.J. at 420. However, contrar y to the majority’s d ecision here, our superior court in Wolford applied the constitut ional standard of prejudice and required the government prove the error was harmless beyond a r easonable doubt.
Id.

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

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

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

Under plain error rev iew, this Court will grant relief only where (1) there was error, ( 2) the error was plain and obvious, and (3) the error materially p rejudiced a substantial right of the acc used. Where, as here, the alleged error is constitutional, the prejudice prong is
fulfilled where the Government cannot show that the error was harmless beyond a reasonable doubt.

70 M.J. at 304.TOVARCHAVEZ—ARMY 20150250

20 The CAAF has not overturned Wolford

, Harcrow , or Sweeney with respect to the requirement that t he government prove a forfeited error of constitutional
dimension was harmless beyond a reasonable doubt. We therefore are bound by
them.

Indeed, despite the clarity the majority professes to read int o CAAF’s purported assertion of mer e harmlessness, in both Guardado and Williams the CAAF concludes they are not convinced t he error “played no role” in each appellant’s convictions to particular charges. Guardado , 77 M.J. at 94-95 ( “Although it is certainly possible that the memb ers convicted Appellant based s olely on the testimony of his accusers, we are not convinced th at the errone ous propensity instruction played no role i n Appellant's conviction.”); Williams , __ M.J. __, 2018 CAAF LEXIS 365, at *9 (“First, w ith respect to the offense alle ged in Charge I, we are not convinced that the erroneous propensity instruction pla yed no role in Appellant's convictio n.). To require an error play no role in a conviction is to require the error be harmles s beyond a reasonable doubt.

As I would apply the burden that the gover nment prove the inst ructional error was harmless beyond a r easonable doubt, I respectfully dissent and would set aside appellant’s convictions a nd authorize a rehearing.

FOR THE COURT:

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

Clerk of Court FOR THE COURT: