UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 38958

________________________

UNITED STATES

Appellee

v.

Michael SILVA

Master Sergeant (E-7), U.S. Air Force, Appellant

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Appeal from the United States Air Force Trial Judiciary

Decided 19 July 2017

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Military Judge: Wendy L. Sherman (arraignment); Natalie D. Richardson

(trial).

Approved sentence: Dishonorable discharge, confinement for 20 years, forfeiture of all pay and allowances, and reduction to E-1. Sentence adjudged 30 

January 2015 by GCM convened at Joint Base San Antonio–Lackland, Texas. 

For Appellant: Captain Patricia Encarnación Miranda, USAF; Peter Kageleiry, 

Jr., Esquire.

For Appellee: Major Tyler B. Musselman, USAF; Major Mary Ellen Payne, 

USAF; Gerald R. Bruce, Esquire.

Before DREW, JOHNSON, and SPERANZA, Appellate Military Judges.

Senior Judge JOHNSON delivered the opinion of the court, in which Chief 

Judge DREW and Judge SPERANZA joined.

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This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 18.4.

________________________
United States v. Silva, No. ACM 38958

2

JOHNSON, Senior Judge:

A general court-martial composed of officer and enlisted members found 

Appellant guilty, contrary to his pleas, of three specifications of rape in violation of Article 120 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 

§ 920.1 The court-martial sentenced Appellant to a dishonorable discharge, 

confinement for 20 years, total forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority approved the sentence as 

adjudged.

On appeal, Appellant raises seven assignments of error: (1) in light of 

United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016), the military judge committed prejudicial error in her instructions to the court members; (2) the military 

judge abused her discretion by overruling Defense objections to evidence the 

Government offered pursuant to Military Rule of Evidence (Mil. R. Evid.) 

404(b); (3) the military judge’s failure to disclose mental health records of one 

of the victims denied Appellant his Sixth Amendment2 right to confrontation; 

(4) the evidence is factually insufficient to sustain the convictions; (5) the Government violated Appellant’s rights to discovery; (6) Appellant did not receive 

effective assistance from his trial defense counsel; and (7) the military judge 

abused her discretion by failing to dismiss the charge and specifications for 

unlawful command influence.3 In addition, although not raised by Appellant, 

we note the post-trial processing of his case was subjected to a facially unreasonable delay.4 However, because our superior court’s holding in Hills compels 

us to set aside the convictions and sentence, we do not address the remaining 

issues.

 

1 Appellant was acquitted of one specification of rape in violation of Article 120, UCMJ.

2 U.S. CONST. amend. VI.

3 Assignments of error (4), (5), (6), and (7) are raised pursuant to United States v. 

Grostefon, 12 M.J. 431 (C.M.A. 1982).

4 Appellant was sentenced on 30 January 2015; the convening authority took action on 

24 November 2015; and Appellant’s record of trial was docketed with this court on 19 

January 2016. Thus, both the 120-day sentencing-to-action threshold and the 30-day 

action-to-docketing threshold for facially unreasonable post-trial delay established in 

United States v. Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006), were exceeded. However, in 

light of our disposition of the case in accordance with United States v. Hills, 75 M.J. 

at 355–58, we need not address whether these delays amounted to a violation of Appellant’s due process right to timely post-trial review, nor whether relief for post-trial 

delay is otherwise appropriate. See Moreno, 63 M.J. at 143; United States v. Gay, 74 

M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F. 2016); United 

States v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).
United States v. Silva, No. ACM 38958

3

I. BACKGROUND

A. Specification 1

Appellant married BS in September 1990 in Texas. Appellant joined the 

Air Force shortly thereafter in order to support BS and their son, MS, who was 

born in January 1991. While Appellant attended training, BS initially lived 

with her mother in Texas and then with Appellant’s mother and sister in Georgia. Later, BS and MS joined Appellant in North Carolina, where he was stationed at Pope Air Force Base (AFB). Eventually, Appellant obtained a divorce 

and he was awarded primary custody of MS. At some point thereafter, BS—in 

her own words—“kidnapped” MS and took him to Puerto Rico where her grandmother lived. However, BS soon returned to North Carolina and brought MS 

back to Appellant. She moved back in with Appellant, although they remained 

divorced. Ultimately, in late 1993 BS moved back to Texas, lost all contact with 

Appellant and their son, and remarried. She was interviewed by agents of the 

Air Force Office of Special Investigations (AFOSI) in February 2013 after she 

was identified during AFOSI’s investigation of Appellant.

At trial, BS testified she and Appellant engaged in both consensual and 

non-consensual sexual intercourse during and after their marriage. She testified that on the non-consensual occasions she would tell him “no,” but she did 

not physically resist. BS further testified that at one point she reported this 

sexual abuse to an unnamed doctor, but the doctor told her North Carolina law 

at the time did not recognize spousal rape.5 BS testified Appellant would tell 

her the same thing. In addition, BS testified that on multiple occasions Appellant put her in the closet of their apartment and would not let her leave for a 

period of time; that he slapped her head with his open hand; that he was controlling and verbally abused her; and that he inserted his fingers in her 

vagina—purportedly to detect whether she had been having sex with someone 

else while he was at work. BS further testified that he choked her, pinning her 

against the wall by holding his hand against her neck. There were no other

eyewitnesses to any of these events.

At trial, Appellant was charged with raping BS on divers occasions between 

23 October 1992 and on or about 31 December 1993.6

 

5 At trial, the military judge took judicial notice that under North Carolina law in 1992 

and until 5 July 1993, it was a complete defense to the crime of rape and other sexual 

offenses that the victim was the legal spouse of the defendant at the time of the offense, 

unless they were living separate and apart.

6 Appellant and BS were divorced throughout the charged period.
United States v. Silva, No. ACM 38958

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B. Specifications 2 and 3

In 20 September 1995, SCG began Air Force basic military training (BMT)

at Lackland AFB, Texas. Appellant, a Senior Airman at the time, was the primary training instructor assigned to SCG’s flight. SCG testified that one night, 

“a few days” after she arrived, Appellant woke her in her bed and told her to 

put on her physical training uniform. He then led her out of the dorm and some 

distance away from the building to his car. After they got inside, Appellant 

began talking about himself and playing with SCG’s hair. Appellant then told 

SCG to come around to his side of the car and instructed her to perform oral 

sex on him. When SCG resisted, Appellant pushed her head down. Appellant 

then placed her inside the car lying on her back, pulled her clothing down, and 

raped her. After Appellant ejaculated, he used a wipe to clean himself and to 

clean SCG both externally and internally. Appellant told SCG that if she reported the incident, no-one would believe her and it would ruin her career. SCG 

then followed Appellant back to the dorm and returned to her bed. She did not 

initially report the incident to anyone.

SCG testified that a few days after this incident, Appellant came to the 

dorm and told her she needed to put her battle dress uniform on because she 

would be performing duty at a desk that night. Accordingly, after lights out, 

SCG exited the dorm in her uniform and found Appellant waiting for her in his 

car. Appellant told her to get in the car and to put her head down, so that she 

could not see where they were going. Appellant then showed SCG her driver’s 

license and made a comment that she interpreted as a threat to kill her if she 

did not do as he said. Appellant then drove for what SCG estimated to be less 

than 20 minutes. When they stopped, Appellant took her out of the car and 

continued to keep her head down so she could not see where they were going. 

After a few steps they entered a building that was very dark inside. Appellant 

began removing SCG’s clothing and pushed her down onto a sheet on the floor. 

After spraying something on her neck and shoulders and playing with her hair, 

Appellant raped her. As he was doing so, he put his hand on her throat and 

pushed so that she could not breathe. He asked her if she enjoyed that; she 

said “no.” Appellant then withdrew and digitally penetrated SCG until she had 

an orgasm. He then reinserted himself and ejaculated. Afterwards, Appellant

sat beside her talking for a while before he turned her over and penetrated her 

anus with his penis. Appellant then wiped her clean internally and externally 

again, dressed her, and returned her to the dorm, again having her keep her 

head down so she could not see where they were going. The dorm guard let 

SCG into the building, and she returned to her bed. Again, she did not initially 

report the incident.

SCG testified that more than one day after the second incident, Appellant 

noticed something wrong in the way she was running. Appellant sent her to 
United States v. Silva, No. ACM 38958

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have a medical exam, which resulted in SCG being placed on medical hold and 

ultimately moved out of Appellant’s flight and into another flight. During her 

time with this new flight, SCG experienced two episodes where she passed out 

and fell down. SCG was transferred to a squadron for trainees on medical hold 

and was ultimately medically discharged in late 1995 without completing 

BMT. SCG testified that before she was discharged, she told a doctor that she 

was sexually assaulted by an instructor. According to SCG, the doctor responded by telling her they were not going to discuss it, that the doctor would 

not put his “career on the line” by reporting the matter, and that the doctor

gave her an unsupported diagnosis regarding migraine headaches which resulted in her medical discharge.

SCG testified that while she was awaiting her medical discharge she told 

another female Airman about the rape, but told the Airman not to tell anyone 

else. When SCG returned to her home of record, she told her mother about the 

rape, but also made her mother promise not to tell anyone else. In the years 

that followed, SCG married, divorced, remarried, and had several children. In 

2009 SCG’s second husband noticed she was having nightmares that seemed 

related to her time in the Air Force. He pressed her to tell him what it was 

about, and she gradually disclosed to him what Appellant had done to her. 

With his encouragement, SCG sought assistance through the Veterans Administration. Finally, in 2012 SCG contacted AFOSI and reported the first rape, 

which initiated the investigation that resulted in Appellant’s court-martial.

At trial, Appellant was charged with one specification of raping SCG “in a 

vehicle” between on or about 1 September 1995 and on or about 31 December 

1995, and one specification of raping her “in a dwelling” between on or about 1 

September 1995 and on or about 31 December 1995.

C. Specification 4

In the spring of 2006, Appellant, then a Technical Sergeant, and JB, then 

an active duty Senior Airman, were both assigned to Francis E. Warren AFB, 

Wyoming. They married after dating for just two weeks. As JB described it, 

the marriage was not a happy one. Appellant was secretive, dominating, and 

jealous. He did not want JB to be involved in raising his teenage son MS, and 

he discouraged her from maintaining contact with her family. Nevertheless, 

Appellant and JB engaged in consensual sex during the marriage. At trial, JB 

described how on one such occasion Appellant choked her with his hands until 

she tapped him, causing him to stop.

They separated in February 2007, when JB moved into the base dorm. Appellant initiated a divorce. However, JB would still meet Appellant for dinner 

and spend time at Appellant’s house watching television with Appellant and 
United States v. Silva, No. ACM 38958

6

his son. JB and Appellant also continued to engage in consensual sex, approximately 10 times between February and April 2007. JB testified she still loved 

Appellant and hoped their marriage could be saved. However, JB testified that 

on 28 April 2007 as she was preparing to leave Appellant’s house one evening 

after watching a movie, as MS slept on the living room sofa, Appellant unexpectedly guided her to the bedroom. Appellant pushed her down on the bed and 

raped her. JB told him to stop and tried to “squirm” away, but she did not 

“fight” him and did not call out to MS for help. Afterwards, JB dressed herself, 

returned to her dorm, and cried in the shower for two hours.

In the days that followed, JB reported what happened to her mother, 

brother, sister, and a co-worker. Five days after the assault, she received papers related to the divorce, and she went to her acting first sergeant for assistance in dealing with the divorce. During the meeting she disclosed the rape, 

which led to JB meeting with AFOSI, which initiated an investigation. However, JB subsequently wrote a contradictory statement for AFOSI stating that 

she did not believe Appellant had raped her. This statement contributed to the 

investigation being dropped. At trial, JB explained this statement by testifying 

that she allowed herself to “get confused on what rape really was,” that she 

was “scared” and she “couldn’t handle it” at that time. Eventually, JB was medically retired from the Air Force. However, her prior report was identified during the AFOSI investigation initiated by SCG’s report. JB was reinterviewed 

by AFOSI in January 2013, and her allegations became part of Appellant’s 

court-martial.

At trial, Appellant was charged with one specification of raping JB between 

on or about 1 February 2007 and on or about 30 April 2007.

D. Chief Master Sergeant KM

Chief Master Sergeant (CMSgt) KM first met Appellant when she attended 

BMT in 1995. She encountered him again when she returned to Lackland AFB 

as an instructor in 1999. CMSgt KM was a Senior Airman at the time and 

Appellant was still an instructor. CMSgt KM and Appellant were acquaintances, but had no dating or sexual relationship.

Sometime in the late summer of 2002, CMSgt KM invited Appellant to her 

apartment. Appellant brought his guitar. The two of them sat on her couch 

talking for a period of time, and then Appellant played several songs on his 

guitar. CMSgt KM initiated a kiss with Appellant, but something about it 

made her feel uncomfortable. CMSgt KM asked Appellant to leave. He agreed, 

and they moved toward the door. CMSgt KM testified that the next thing she 

could remember was lying on her back in the entrance to her apartment and 

Appellant choking her with his hand around her neck. Appellant was simultaneously using his other hand and mouth to perform oral sex on her. She had
United States v. Silva, No. ACM 38958

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difficulty breathing and was pushing with her feet to get away. She could recall 

few details other than that he stopped at some point, said something to her, 

and departed. CMSgt KM did not initially report the incident; however, she did 

disclose the incident when she was contacted in 2013 in the course of the 

AFOSI investigation.

At trial, Appellant was not charged with any offenses in relation to 

CMSgt KM; however, the Government called her to testify pursuant to Mil. R. 

Evid. 413.

E. Trial

After arraignment but before trial, the Government notified the Defense of 

evidence of “similar crimes” by Appellant it might introduce pursuant to Mil. 

R. Evid. 413, including the charged offenses themselves, as well as uncharged 

sexual misconduct with BS, SCG, JB, and CMSgt KM. In response, the Defense 

moved to “exclude the proffered [Mil. R. Evid.] 413 evidence from this courtmartial.” The Government opposed the motion. The military judge held a hearing on the motion. After making the required threshold findings for Mil. R. 

Evid. 413 and applying the Mil. R. Evid. 403 balancing test informed by the 

factors articulated in United States v. Wright, 53 M.J. 476, 482 (C.A.A.F. 2000), 

the military judge denied the Defense’s motion and allowed the evidence.

At trial, BS, SCG, JB, and CMSgt KM testified as indicated above. In addition, the Government offered the testimony of BS’s husband, SCG’s husband 

and mother, and JB’s acting first sergeant and commander at the time of her 

initial report to support various aspects of the victims’ testimony, in particular 

their earlier reports of the charged offenses. The Government also called a retired Master Sergeant and current civilian Air Force employee at BMT, who 

was also a training instructor with Appellant in 1995, to testify regarding the 

procedures and facilities at BMT in 1995 in an effort to lend plausibility to 

SCG’s testimony. Furthermore, the Government called two other women, both 

Air Force noncommissioned officers, who testified that in the course of their 

consensual sexual relationships with Appellant he engaged in abrupt digital 

penetration (with respect to one) and choking (with respect to both). The Government called the AFOSI special agent in charge of the investigation to explain aspects of the investigation, and in particular to combat the suggestion

that AFOSI interviewing techniques would have colored witness testimony or

informed the victims of details provided by other witnesses. Finally, the Government called Appellant’s sister to testify to the type of vehicle he drove in 

1995 to further support SCG’s account.

The military judge provided, inter alia, the following instructions to the 

court members before counsels’ arguments on findings:
United States v. Silva, No. ACM 38958

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An accused may be convicted based only on evidence before the 

court, not on evidence of a general criminal predisposition. Each 

offense must stand on its own, and you must keep the evidence 

of each offense separate. Stated differently: if you find or believe 

that the accused is guilty of one offense, that—you may not use 

that finding, or that belief as a basis for inferring, assuming, or 

proving that he committed any other offense. . . . Proof of one 

offense carries with it no inference that the accused is guilty of 

any other offense.

. . . .

Evidence that the accused committed one sexual offense alleged 

in a Specification—so 1, 2, 3, or 4 of the Charge—may have no 

bearing on your deliberations in relation to any other of those 

Specifications unless you first determine by preponderance of the 

evidence, that is more likely than not, that one offense alleged occurred. So if you determine by preponderance of the evidence that 

the offense alleged in the specification of the Charge occurred, 

even if you are not convinced beyond a reasonable doubt that the 

accused is guilty of that offense, you may nonetheless then consider the evidence of that offense for its bearing on any matter to 

which it is relevant in relation to the other alleged specifications. 

You may also consider the evidence of such other sexual offenses 

for its tendency, if any, to show the accused [sic] propensity or 

predisposition to engage in sexual offenses. You may not, however, convict the accused solely because you believe he committed this other offense or solely because you believe the accused 

has a propensity or predisposition to engage in sexual offenses. 

In other words you cannot use this evidence to overcome a failure of proof in the government’s case if you perceive any to exist. 

The accused may be convicted of an alleged offense only if the 

prosecution has proven each element beyond a reasonable doubt. 

Each offense must stand on its own, and the proof of one offense 

carries no inference that the accused is guilty of any other offense. In other words, proof of one sexual offense creates no inference that the accused is guilty of any other sexual offense. 

However, it may demonstrate that the accused has a propensity 

to commit that type of offense. The prosecution’s burden of proof 

to establish the accused [sic] guilt beyond a reasonable doubt remains as to each and every element of each offense charged. 

Proof of one, proof of one charged offense carries with it no inference that the accused is guilty of any other charged offense.
United States v. Silva, No. ACM 38958

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(Emphasis added.)

The court-martial acquitted Appellant of Specification 1, alleging the rape 

of BS in 1992 and 1993, and convicted him of Specifications 2, 3, and 4, alleging 

the two rapes of SCG in 1995 and the rape of JB in 2007.

II. DISCUSSION

A. Law

A military judge’s decision to admit evidence is reviewed for an abuse of 

discretion. United States v. Solomon, 72 M.J. 176, 179 (C.A.A.F. 2013). The 

meaning and scope of Mil. R. Evid. 413 is a question of law that is reviewed de 

novo. Hills, 75 M.J. at 354 (citation omitted). Instructional errors are also reviewed de novo. Id. at 357 (citation omitted).

Mil. R. Evid. 413(a) provides that in a court-martial where the accused is 

charged with a sexual offense, evidence that the accused committed other sexual assaults may be admitted and considered on “any matter to which it is 

relevant.” This includes using evidence of sexual assaults to prove the accused 

has a propensity to commit sexual assault. United States v. James, 63 M.J. 

217, 220 (C.A.A.F. 2006). In United States v. Wright, the Court of Appeals for 

the Armed Forces (CAAF) required military judges to make the following three 

threshold findings before admitting evidence under Mil. R. Evid. 413: (1) the 

accused is charged with an offense of sexual assault; (2) the evidence proffered 

is evidence of his commission of another offense of sexual assault; and (3) the 

evidence is relevant under Mil. R. Evid. 401 and Mil. R. Evid. 402. Wright, 53 

M.J. at 482. If the proffered evidence meets the threshold findings required by 

Wright, the military judge must still apply the balancing test of Mil. R. Evid. 

403. Id. The evidence “may be excluded if its ‘probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members.’” United States v. Berry, 61 M.J. 91, 95 (C.A.A.F. 2005) 

(quoting Mil. R. Evid. 403).

However, in Hills, the CAAF held that evidence of the accused’s commission of a sexual assault may not be used in this way if the alleged sexual assault

is charged in the same court-martial and the accused has pleaded not guilty to 

it. 75 M.J. at 356. The CAAF further held that the instructions accompanying 

the admission of evidence of charged offenses for Mil. R. Evid. 413 purposes 

implicate fundamental constitutional due process concerns by undermining an 

accused’s presumption of innocence and the Government’s requirement to 

prove guilt beyond a reasonable doubt. Id. at 357. Because “constitutional dimensions are in play,” prejudice for such an error must be tested for harmlessness beyond a reasonable doubt. Id. In other words, the Government must 
United States v. Silva, No. ACM 38958

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demonstrate there is no reasonable possibility that the error contributed to the 

conviction. Id.

In United States v. Hukill, 76 M.J. 219 (C.A.A.F. 2017), the CAAF clarified 

that Hills is not to be interpreted narrowly:

[T]he use of evidence of charged conduct as M.R.E. 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. Whether considered by members or a military judge, evidence of a charged and contested offense, of which 

an accused is presumed innocent, cannot be used as propensity 

evidence in support of a companion charged offense.

Id. at 222. The court reiterated that, where such error exists, the Government 

must “prove there was no reasonable possibility that the error contributed to 

[the] verdict.” Id.

B. Analysis

The Government concedes that, in light of Hills and Hukill, the military 

judge erred in permitting evidence of the charged sexual offenses to be used 

pursuant to Mil. R. Evid. 413 and instructing the court members accordingly. 

We agree. Although the military judge’s ruling is understandable, coming as it 

did before the decision in Hills, we must “apply the clear law at the time of 

appeal, not the time of trial.” United States v. Mullins, 69 M.J. 113, 116 

(C.A.A.F. 2010) (citing United States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 

2008)). 

Nevertheless, the Government contends the error in Appellant’s case is 

harmless beyond a reasonable doubt. We cannot agree. The Government argues a combination of four “factors” support its position; we consider each in 

turn.

First, the Government argues the fact that the court members acquitted 

Appellant of raping BS indicates that the panel did not improperly use the 

charged offenses to conclude Appellant had a propensity to commit sexual assault. According to the Government, the findings indicate a discerning panel 

that was minimally impacted by the military judge’s Mil. R. Evid. 413 instruction and held the Government to its burden. If the members had found a propensity to commit sexual assault, the Government posits, they would have convicted Appellant of all specifications.

We perceive several flaws in this argument. Most fundamentally, this is 

sheer speculation regarding the panel’s thought process. It is also possible the 

members found BS’s testimony to be so questionable that they acquitted Appellant with regard to her allegations despite a conclusion that Appellant has 
United States v. Silva, No. ACM 38958

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a general propensity to commit sexual assault. Moreover, one could argue that 

the acquittal demonstrates the weakness of the Prosecution’s case and that,

but for the propensity instruction, Appellant might have been acquitted of all 

specifications. We do not suggest that this is the case; rather, the point is that 

it is impossible to safely deduce the members’ exact reasoning from the result.

Second, the Government notes the military judge properly admitted CMSgt 

KM’s testimony regarding an uncharged sexual assault as Mil. R. Evid. 413 

propensity evidence. In effect, the Government appears to be contending—in 

stark juxtaposition with its first argument that the members did not find a 

propensity—that the proper, uncharged Mil. R. Evid. 413 evidence was so compelling that the members would have found a propensity to commit sexual assault that corroborated SCG’s and JB’s testimony regardless of the military 

judge’s error. Again, we are unconvinced. The members were instructed they 

could use the testimony of BS, SCG, and JB, as well as CMSgt KM, to potentially find Appellant had a propensity to commit sexual assault. We cannot 

reliably subtract the impact of the three charged offenses from CMSgt KM’s 

testimony in that analysis. The Government’s reliance on contradictory arguments underscores just how little we can discern of the impact the erroneous 

instructions had on the members.

Third, the Government minimizes the extent to which senior trial counsel’s 

argument relied on propensity evidence with respect to the charged offenses. 

The Government also notes trial defense counsel’s argument highlighted the 

military judge’s instruction that each specification must stand on its own and 

be proven beyond a reasonable doubt. These points do little to allay our concerns. Doubtless, the Government’s case on appeal would be even more difficult

if senior trial counsel had in argument hammered on the importance of the 

evidence of the charged offenses in establishing Appellant’s propensity to commit sexual assault. It is not surprising that he focused on CMSgt KM’s testimony with respect to propensity; unlike the evidence of the charged offenses, 

her testimony had no other purpose. Yet, counsels’ arguments are merely arguments; they do not carry the weight of either the evidence or the military 

judge’s instructions. Senior trial counsel did not advise the court members to 

disregard evidence of the charged offenses for propensity purposes; even if he 

had, such argument from counsel would be unlikely to counterbalance the military judge’s erroneous instruction.

One of the essential strengths of the Government’s case, and one which 

senior trial counsel did return to repeatedly in his argument, was the fact that 

multiple women with no connection to each other—other than being victimized 

by Appellant—had independently accused him of sexual assault. The military 

judge’s erroneous instruction played directly into this strength by permitting 

the members, essentially, to find by a preponderance of evidence from the 
United States v. Silva, No. ACM 38958

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charged and uncharged offenses that Appellant had a predisposition to commit 

sexual assault, and to use that finding to support a conclusion that Appellant 

was guilty. 

Finally, the Government argues the evidence of Appellant’s guilt with regard to SCG and JB was “overwhelming.” Again, we disagree. There were 

weaknesses in the Government’s case. The alleged crimes occurred far in the 

past. There were no eyewitnesses other than the victims themselves. The only 

one of the charged or uncharged victims to report the alleged crimes to law 

enforcement prior to 2012 was JB, and she recanted her initial allegation. The 

Prosecution presented no physical, scientific, or photographic evidence of any 

of the offenses.7 The Government offered no confessions or admissions to any 

of the offenses by Appellant, who did not testify. Specifically with regard to 

SCG, the Defense introduced medical records, called witnesses, and elicited

direct and cross-examination testimony that suggested the window of opportunity for Appellant to have committed the two rapes was a narrow one, and 

tended to cast doubt on her account in other ways. With regard to JB, in addition to her recantation of her initial allegation in 2007, the Defense contended 

her status as an ex-spouse through a divorce initiated by Appellant was a clear

bias. Further, the Defense highlighted that both SCG and JB received substantial monthly disability payments from the Government based, at least in part,

on mental health disorders related to the alleged sexual assaults by Appellant, 

although both victims averred their understanding that such payments were 

not tied to their cooperation in Appellant’s prosecution.

For the reasons stated above, we cannot be confident there is “no reasonable possibility” that the erroneous instructions “contributed to [the] verdict” in 

this fiercely contested trial. Hukill, 76 M.J. at 222. Thus, we cannot sustain 

Appellant’s convictions.

 

7 The Government did introduce photographs of the victims as they appeared close in 

time to the alleged offenses, as well as a number of photographs of the BMT dorm SCG 

was assigned to and its environs.
United States v. Silva, No. ACM 38958

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III. CONCLUSION

The findings of guilt and the sentence are SET ASIDE. A rehearing is authorized. Article 66(c), UCMJ, 10 U.S.C. § 866.

FOR THE COURT

KURT J. BRUBAKER

Clerk of the Court