United States v. Tovarchavez ( 2019 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Juventino TOVARCHAVEZ, Specialist
United States Army, Appellant
No. 18-0371
Crim. App. No. 20150250
Argued February 21, 2019—Decided May 31, 2019
Military Judges: Gregory Gross (trial) and
Timothy P. Hayes Jr. (DuBay hearing)
For Appellant: Captain Augustus Turner (argued); Lieu-
tenant Colonel Christopher P. Carrier, Lieutenant Colonel
Tiffany D. Pond, and Major Todd W. Simpson (on brief).
For Appellee: Captain KJ Harris (argued); Colonel Steven
P. Haight, Lieutenant Colonel Eric K. Stafford, and Major
Wayne H. Williams (on brief); Captain Joshua B. Banister.
Judge RYAN delivered the opinion of the Court, in
which Judges OHLSON and SPARKS joined. Judge
MAGGS filed a separate dissenting opinion, in which
Chief Judge STUCKY joined.
_______________
Judge RYAN delivered the opinion of the Court.
Appellant was charged with two specifications of sexual
assault in violation of Article 120, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 920 (2012), for sexually assault-
ing a fellow soldier, Specialist (SPC) JR, on two separate oc-
casions. A panel of officer and enlisted members sitting as a
general court-martial convicted Appellant, contrary to his
plea, of one specification, and acquitted him of the other
specification. He was sentenced to confinement for two
years, reduction to E-1, forfeiture of all pay and allowances,
and a dishonorable discharge. The convening authority ap-
proved the sentence.
The United States Army Court of Criminal Appeals
(ACCA) affirmed the findings and the sentence as approved
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
by the convening authority. United States v. Tovarchavez,
No. ARMY 20150250, 2018 CCA LEXIS 371, at *28, 2018
WL 3570591, at *11 (A. Ct. Crim. App. July 19, 2018). We
granted Appellant’s petition to review the following issue:
Whether the Army court erred, first, in finding that
this Court overruled sub silencio the Supreme
Court holding in Chapman v. California, 386 U.S.
18, 24 (1967), and this Court’s own holdings in
United States v. Wolford, 62 M.J. 418, 420
(C.A.A.F. 2006), and in United States v. Hills, 75
M.J. 350, 357 (C.A.A.F. 2016), and, consequently, in
testing this case using the standard for
nonconstitutional error.
As an initial matter, we note that the ACCA made no
such findings. Rather, it distinguished United States v.
Wolford, 62 M.J. 418 (C.A.A.F. 2006), from this case, found
that this Court’s precedent established that forfeited United
States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016), errors are
tested for “plain error,” and conducted an Article 59(a),
UCMJ, 10 U.S.C. § 859(a) (2012), 1 analysis to determine
whether the forfeited constitutional error “materially
prejudiced Appellant’s substantial rights.” Tovarchavez,
2018 CCA LEXIS 371, at *4–8, *15–19, 2018 WL 3570591,
at *2–3, *6–8. However, the ACCA did not determine
whether the constitutional error in this case 2 was harmless
beyond a reasonable doubt. Id. at *19, 2018 WL 3570591, at
*8. Instead, it evaluated prejudice for nonconstitutional
error using the effect-on-the-trial test announced in Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016). See
id. at *16–19, 2018 WL 3570591, at *7–8.
This was an incorrect application of the law and flatly
inconsistent with established precedent of this Court.
1 Article 59(a), UCMJ, provides that “[a] finding or sentence of
a court-martial may not be held incorrect on the ground of an er-
ror of law unless the error materially prejudices the substantial
rights of the accused.”
2 The error at issue in this case was a Hills error.
Tovarchavez, 2018 CCA LEXIS 371, at *3, 2018 WL 3570591, at
*1. In Hills, this Court concluded “that the instructions that ac-
companied the so-called propensity evidence in this case constitut-
ed constitutional error.” 75 M.J. at 353, 356–57.
2
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Opinion of the Court
Contrary to the ACCA’s holding, 3 the options available to a
court in the military justice system under Article 59, UCMJ,
are not a choice between “plain error” or “the Chapman
standard.” Rather, just as a “substantial right” can be either
constitutional or nonconstitutional, “material prejudice” for
purposes of Article 59, UCMJ, must be understood by
reference to the nature of the violated right. Consistent with
our precedent, we hold that where a forfeited constitutional
error was clear or obvious, “material prejudice” is assessed
using the “harmless beyond a reasonable doubt” standard
set out in Chapman v. California, 386 U.S. 18 (1967). United
States v. Jones, 78 M.J. 37, 45 (C.A.A.F. 2018).
That standard is met where a court is confident that
there was no reasonable possibility that the error might
have contributed to the conviction. Chapman, 386 U.S. at
24. We are unable to say with certainty that the erroneous
propensity instruction at issue in this case “did not taint the
proceedings or otherwise ‘contribute to [Appellant’s]
conviction or sentence.’ ” United States v. Williams, 77 M.J.
459, 464 (C.A.A.F. 2018) (quoting Hills, 75 M.J. at 357). The
decision of the ACCA is reversed.
Facts and Procedural History
SPC JR testified at trial about two sexual assaults as fol-
lows. On September 5, 2014, SPC JR was sitting with Appel-
lant in his truck. Appellant twice tried to kiss SPC JR, but
she refused. Appellant then attempted to pull down SPC
JR’s pants, and, after a period of resistance, she gave up and
Appellant penetrated her vagina with his penis. She did not
report the incident, which was the basis for Specification 1 of
the Charge.
On September 10, 2014, Appellant texted SPC JR about
returning some military gear that he had borrowed from
her. SPC JR agreed, and Appellant met her at her barracks
room. After a brief interaction with Appellant, SPC JR went
3 The lone dissenter at the ACCA, in contrast, persuasively
and succinctly explained that the ACCA majority incorrectly ap-
plied this Court’s controlling precedent. Tovarchavez, 2018 CCA
LEXIS 371, at *28, 2018 WL 3570591, at *12 (Campanella, S.J.,
dissenting).
3
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
to her bedroom to grab her keys to leave. Appellant followed
her, closed the bedroom door, and tried to kiss her. Appel-
lant then pushed her onto her bed and tried to pull down her
sweatpants. Once again, SPC JR attempted to resist, but
Appellant was able to pull her sweatpants down far enough
to penetrate her vagina with his penis. This incident was the
basis for Specification 2 of the Charge.
The next day, SPC JR informed two friends as well as
her parents about the sexual assault. Her father called the
Criminal Investigation Division and reported the incident.
SPC JR received a medical exam that revealed DNA profiles
linked to both Appellant and an unknown individual.
As part of the investigation, SPC JR sent Appellant the
following pretext messages:
[SPC JR:] I’m not going to allow you to make me
your sex toy anymore
....
[Appellant:] What are talking about, this is just
weird ill [sic] leave it at the company.
[SPC JR:] What’s weird is I told you no and you
still forced me to have sex anyway
[Appellant:] Im [sic] sorry for what ever happened
between us . . . . [F]rom now on Im [sic] going to
leave you alone. Im [sic] sorry.
[SPC JR:] If your [sic] sorry why did you do it
[Appellant:] I made a mistake by crossing the line,
and I’m sorry for that, you deserve much more than
that.
Appellant did not testify at trial. The defense theory of
the case was that SPC JR did not credibly recount the
events forming the basis of Specifications 1 and 2 of the
Charge. Defense counsel also sought an instruction for a
mistake of fact as to consent defense for both specifications.
The military judge concluded that there was insufficient
evidence to give the requested instructions.
At the close of evidence, the military judge informed
counsel that he planned to give the panel the standard
Military Rule of Evidence (M.R.E.) 413 instruction. Defense
4
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
counsel did not object. The military judge instructed the
panel:
If you determine by a preponderance of the
evidence the offense alleged in Specification 1
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
Specification 2 of the Charge. You may also
consider the evidence of such other sexual offense
for its tendency, if any, to show the accused’s
propensity or predisposition to engage in sexual
offenses.
Appellant was convicted of Specification 2 of the Charge,
and the case came to the ACCA for review under Article 66,
UCMJ, 10 U.S.C. § 866, where it was initially remanded for
a DuBay hearing 4 on an unrelated matter. In between
Appellant’s court-martial and the final resolution of his
appeal, this Court decided Hills, which held that the M.R.E.
413 propensity instruction violated the constitutional right
of an accused to be presumed innocent until proven guilty.
75 M.J. at 357. Consequently, Appellant’s failure to object
constituted forfeiture rather than waiver and the ACCA was
required to determine whether giving a constitutionally
infirm instruction constituted “material prejudice.”
Tovarchavez, 2018 CCA LEXIS 371, at *3–4, 2018 WL
3570591, at *1–2.
The ACCA recognized that the instruction given in the
instant case “was for all substantive purposes identical to
the instruction . . . found to be in error in United States v.
Hills.” Id. at *3, 2018 WL 3570591, at *1. Yet it also
determined that the Hills error was forfeited here, and
despite clear precedent to the contrary, chose to assert that
this Court’s precedent required Appellant to “ ‘show a
reasonable probability that, but for the error,’ the outcome of
4 United States v. DuBay, 37 C.M.R. 411 (1967). DuBay hear-
ings are an oft-utilized and “well-accepted procedural tool [used by
appellate courts in the military] for addressing a wide range of
post-trial collateral issues.” United States v. Fagan, 59 M.J. 238,
241 (C.A.A.F. 2004).
5
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
the proceeding would have been different”—the prejudice
analysis articulated in Molina-Martinez, 136 S. Ct. at 1343
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004)). 5 Tovarchavez, 2018 CCA LEXIS 371, at *11–19,
2018 WL 3570591, at *5–7.
Of course, the error in Molina-Martinez was not a
constitutional error, and its test is the “material prejudice”
showing this Court requires for both preserved and
unpreserved nonconstitutional errors. United States v.
Lopez, 76 M.J. 151, 154, 156 (C.A.A.F. 2017) (internal
quotation marks omitted) (citation omitted). But the test for
constitutional error set forth in Chapman and long followed
by this Court was not disturbed by Molina-Martinez, and
“[w]hen [this Court reviews] a constitutional issue . . . for
plain error, the prejudice analysis considers whether the
error was harmless beyond a reasonable doubt.” Jones, 78
M.J. at 45.
Discussion
An appellant gets the benefit of changes to the law
between the time of trial and the time of his appeal. See
Griffith v. Kentucky, 479 U.S. 314, 328 (1987); United States
v. Mullins, 69 M.J. 113, 116–17 (C.A.A.F. 2010) (“[O]n direct
review, we apply the clear law at the time of the appeal, not
the time of trial.” (citing United States v. Harcrow, 66 M.J.
154, 159 (C.A.A.F. 2008))). Consequently, despite a failure to
object at trial, the Hills error in this case is forfeited rather
than waived. Harcrow, 66 M.J. at 157–58. Consonant with
Article 59, UCMJ, for an appellant to prevail under plain
error review, there must be an error, that was clear or
5 While this formulation may resemble the harmless beyond a
reasonable doubt standard applied to constitutional errors, it is
distinct. In the context of nonconstitutional errors, courts consider
whether there is a “reasonable probability that, but for the error,
the outcome of the proceedings would have been different.” Moli-
na-Martinez, 136 S. Ct. at 1343 (emphases added) (internal quota-
tion marks omitted) (citation omitted). For constitutional errors,
rather than the probability that the outcome would have been dif-
ferent, courts must be confident that there was no reasonable pos-
sibility that the error might have contributed to the conviction.
Chapman, 386 U.S. at 24.
6
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
obvious, and which prejudiced a substantial right of the
accused. United States v. Sweeney, 70 M.J. 296, 304
(C.A.A.F. 2011).
Whether preserved or forfeited error, a finding or
sentence may thus only be corrected for interference with a
substantial right involving an error of law. See Article 59,
UCMJ; see also, e.g., United States v. Humphries, 71 M.J.
209, 215 (C.A.A.F. 2012) (“The error here . . . implicates [the
accused]’s substantial right to notice under the Fifth and
Sixth Amendments.”); Sweeney, 70 M.J. at 303–04
(determining that the erroneously admitted testimonial
hearsay did not satisfy appellant’s confrontation rights);
United States v. Wilson, 54 M.J. 57, 59 (C.A.A.F. 2000)
(finding that the accused failed to carry his burden where he
only showed “a minor clerical error . . . , which falls short of
the substantive legal error required by Article 59(a),
UCMJ”). Where the error is constitutional, Chapman directs
that the government must show that the error was harmless
beyond a reasonable doubt to obviate a finding of prejudice. 6
See Chapman, 386 U.S. at 24 (“Certainly . . . constitutional
error . . . casts on someone other than the person prejudiced
by it a burden to show that it was harmless.”); see also
Sweeney, 70 M.J. at 304; Harcrow, 66 M.J. at 160.
Whether an error, constitutional or otherwise,
constitutes “plain error” is a question of law that we review
de novo. United States v. Bowen, 76 M.J. 83, 87 (C.A.A.F.
6 While a different question than what prejudice must be es-
tablished, which is clear, we recognize that this Court’s precedent
is less than clear regarding the party that bears the burden with
respect to prejudice. Nonetheless, Chapman—a case just like this
one—clearly dictates that, in the case of a constitutional error, the
“beneficiary of the error,” the Government here, must show that
the error was harmless beyond a reasonable doubt. 386 U.S. at 24.
To the extent that the discussion in United States v. Olano, 507
U.S. 725 (1993), suggests a different allocation of the burden, its
interpretation is based on the text of Fed. R. Crim. P. 52(a) (pre-
served error) and Fed. R. Crim. P. 52(b) (forfeited error). Olano,
507 U.S. at 734–35. (“This burden shifting is dictated by a subtle
but important difference in language between the two parts of
[Fed. R. Crim. P.] 52.”). In contrast, Article 59, UCMJ, does not
delineate between preserved and forfeited error.
7
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
2017). In this case, all agree that there was error, that the
error was constitutional in nature, and that, in light of Hills,
the error was clear or obvious. The sole question is whether
the error “materially prejudiced a substantial right of the
accused.” In answering that question, we must first
determine under what standard we assess prejudice in this
case. Appellant contends that “material prejudice” under
Article 59(a), UCMJ, requires the application of Chapman to
determine prejudice in the context of a forfeited
constitutional error. We agree.
First, the overwhelming weight of this Court’s precedent
demonstrates that material prejudice for forfeited
constitutional errors under Article 59, UCMJ, is assessed
using Chapman’s “harmless beyond a reasonable doubt”
test. Jones, 78 M.J. at 45. Second, and relatedly, any
interpretation of “material prejudice” must be squared with
Chapman’s requirement that constitutional error requires
reversal of a conviction unless it can be shown “beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained.” 386 U.S. at 24. Third, we
are unpersuaded that the federal circuit courts’ frequent
application of a lower standard when assessing prejudice
arising from forfeited constitutional errors either permits or
requires us to jettison the Chapman standard for
constitutional error when assessing prejudice under Article
59, UCMJ.
A.
This Court applies Chapman’s “harmless beyond a
reasonable doubt” standard when assessing prejudice for a
forfeited constitutional error under Article 59, UCMJ. See,
e.g., Jones, 78 M.J. at 44–45; United States v. Hoffmann, 77
M.J. 414, 414 (C.A.A.F. 2018); United States v. Payne, 73
M.J. 19, 24–26 (C.A.A.F. 2014); Harcrow, 66 M.J. at 158,
160; United States v. Powell, 49 M.J. 460, 464 (C.A.A.F.
1998). We are neither given, nor are we able to find, a
persuasive reason to depart from this long-standing and
settled precedent. See United States v. Andrews, 77 M.J.
393, 399 (C.A.A.F. 2018) (observing that horizontal stare
decisis requires an appellate court to “ ‘adhere to its own
prior decisions, unless it finds compelling reasons to
overrule itself’ ” (quoting United States v. Quick, 74 M.J.
8
 United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
332, 343 (C.A.A.F. 2015) (Stucky, J., with whom Ohlson, J.,
joined, dissenting))).
Despite this precedent, the Government, the ACCA, and
the dissent assert that a different standard is warranted in
this case. Tovarchavez, 2018 CCA LEXIS 371, at *19, 2018
WL 3570591, at *8. To support this flawed conclusion, they
resort to the absence of a complete recitation of the
Chapman standard in a fraction of our prior decisions
involving forfeited constitutional errors—even though the
overall structure and conclusion of those cases clearly
embrace and apply Chapman. Id. at *15–19, 2018 WL
3570591, at *6–8.
For example, the Government points to our decision in
Humphries, 71 M.J. 209. In that case, defense counsel failed
to object to the government’s failure to allege a terminal
element on one of the charges—violations of the appellant’s
constitutional rights to notice under the Fifth and Sixth
Amendment, a practice that had been permitted prior to our
decision in United States v. Fosler, 70 M.J. 225 (C.A.A.F.
2011)—and we reviewed for plain error. Humphries, 71 M.J.
at 211, 215. Consistent with the requirements of Article
59(a), UCMJ, we assessed prejudice for “material[]
prejudice[] to a substantial right of the accused.” 71 M.J. at
214 (first alteration in the original) (internal quotation
marks omitted) (citation omitted). The Government gleans
from this unremarkable incantation of a statutory
requirement the conclusion that evaluating prejudice arising
from forfeited constitutional errors using a lower standard
“is not beyond the realm of this Court’s precedent.” But this
interpretation of Humphries blithely ignores both our
conclusion that assessing material prejudice in that case
required us to “determine whether the constitutional error
was harmless beyond a reasonable doubt” and our express
refusal to apply the “reasonable probability” test from
Dominguez Benitez, 542 U.S. at 82. Humphries, 71 M.J. at
215 & n.7. 7
7 It further ignores the obvious: the dissent in that case specif-
ically argued that we erred in failing to apply Dominquez Benitez
9
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Opinion of the Court
Along the same lines, both the ACCA and the
Government suggest that our recent decisions in United
States v. Guardado, 77 M.J. 90 (C.A.A.F. 2017), and
Williams, 77 M.J. 459, are contrary to, or undermine, our
precedent applying the Chapman standard to forfeited
constitutional errors. Tovarchavez, 2018 CCA LEXIS 371, at
*10–11, *15–19, 2018 WL 3570591, at *4, *6–7. We disagree.
Guardado stated that plain error review for forfeited
Hills errors requires a determination that: “(1) there was
error, (2) such error was clear or obvious, and (3) the error
materially prejudiced a substantial right of the accused.” 77
M.J. at 93 (emphasis added). Williams cited this articulation
of the plain error standard from Guardado but revised the
third prong of the analysis to require that the error simply
be “prejudicial.” 77 M.J. at 462. Grasping at thin reeds
indeed, both the ACCA and the Government unreasonably
cling to the fact that in both Guardado and Williams, this
Court concluded that the respective Hills errors were not
“harmless”—as opposed to finding they were not “harmless
beyond a reasonable doubt”—and thus concluded that a
lower standard was required by our precedent. 8
Tovarchavez, 2018 CCA LEXIS 371, at *10–11, *15–19, 2018
WL 3570591, at *4, *6–7.
The absence of the precise “harmless beyond a
reasonable doubt” articulation in Guardado and Williams
notwithstanding, it is again clear that both decisions rely on
the Chapman standard when assessing material prejudice.
In Guardado, this Court concluded that it was not
“convinced that the erroneous propensity instruction played
no role in Appellant’s conviction.” 77 M.J. at 95 (emphasis
and Olano to forfeited constitutional error. See Humphries, 71
M.J. at 220–22 (Stucky, J., dissenting).
8 The ACCA also points to this Court’s use of the Molina-
Martinez test in both Lopez, 76 M.J. at 154, and United States v.
Robinson, 77 M.J. 294, 299 (C.A.A.F. 2018) (quoting Lopez, 76
M.J. at 154). However, in both Lopez and Robinson that test was
only used to evaluate prejudice arising from forfeited
nonconstitutional errors. There was also a preserved constitutional
error in Robinson that was evaluated for harmlessness beyond a
reasonable doubt. See Robinson, 77 M.J. at 298–99.
10
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Opinion of the Court
added). And we stated in Williams that “we simply cannot
be certain that the erroneous propensity instruction did not
taint the proceedings or otherwise contribute to the
defendant’s conviction or sentence.” 77 M.J. at 464 (internal
quotation marks omitted) (citation omitted).
Both articulations are clear applications of the language
from Fahy v. Connecticut, 375 U.S. 85, 86–87 (1963)
(requiring “a reasonable possibility that the evidence
complained of might have contributed to the conviction”),
which Chapman said was no different than its “harmless
beyond a reasonable doubt” standard. 9 386 U.S. at 24. Thus,
while the language certainly could have been more precise,
we reject any suggestion that our decisions in Guardado and
Williams endorsed a different standard for material
prejudice or sub silentio overruled precedent that holds
squarely to the contrary. 10
This precedent, viewed in tandem with our cases
assessing prejudice for nonconstitutional errors,
demonstrates clear direction running through our case law:
we test for prejudice based on the nature of the right
violated, whether the error is preserved or not. Compare,
e.g., Bowen, 76 M.J. at 87 (evaluating preserved
nonconstitutional evidentiary error based on whether it
“ha[d] a substantial influence on the findings” (internal
quotation marks omitted) (citation omitted)), 11 and Lopez,
9 Even the Government recognized that “this language sounds
close to that used for a harmless beyond a reasonable doubt
standard.”
10 We separately note that the ACCA’s analysis inexplicably
appears to confuse and conflate the statutory standard required
by Article 59(a), UCMJ, to set aside errors of law (“materially
prejudices the substantial rights of the accused”), which applies to
both preserved and forfeited error, with the specific test for de-
termining material prejudice in the context of nonconstitutional
errors (“reasonable probability that, but for the error, the outcome
of the proceeding would have been different”) articulated most re-
cently in Molina-Martinez, 136 U.S. at 1343 (internal quotation
marks omitted) (citation omitted).
11 The analysis of prejudice in Bowen bears close resemblance
to the effect-on-the-trial analysis required by Molina-Martinez.
Compare Bowen, 76 M.J. at 89 (finding no prejudice because “we
11
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Opinion of the Court
76 M.J. at 154 (evaluating forfeited nonconstitutional
evidentiary error using Molina-Martinez’s effect-on-the-trial
test), with, e.g., United States v. Hukill, 76 M.J. 219, 222
(C.A.A.F. 2017) (evaluating preserved Hills error under
Chapman’s “harmless beyond a reasonable doubt” rubric),
and Jones, 78 M.J. at 45 (evaluating forfeited Confrontation
Clause error using the Chapman test). 12 The ACCA’s
contrary conclusion was misplaced.
We further note that given our clear precedent, to the
extent a few outlying cases are purportedly contrary (and we
repeat, they are not), it is for this Court, not the ACCA, to
overrule our precedent. United States v. Davis, 76 M.J. 224,
228 n.2 (C.A.A.F. 2017) (“It is this Court’s prerogative to
overrule its own decisions.” (citing Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989))). Both
the Government and the ACCA should be well familiar with
the proposition that “overruling by implication is
disfavored.” United States v. Pack, 65 M.J. 381, 383
(C.A.A.F. 2007); see also Agostini v. Felton, 521 U.S. 203, 237
(1997) (“[Lower courts] should follow the case which directly
controls, leaving to this Court the prerogative of overruling
its own decisions.” (internal quotation marks omitted)
(citation omitted)). 13
lack confidence that the panel members were not influenced by
the improper hearsay testimony in this case”), with Molina-
Martinez, 136 S. Ct. at 1343 (requiring a “reasonable probability
that, but for the error, the outcome of the proceedings would have
been different.” (internal quotation marks omitted) (citation
omitted)).
12 This makes sense: the statutory requirement to determine
whether an appellant has sustained “material[] prejudice[] [to a]
substantial right[]” is only given legal effect when a standard is
employed to determine whether a “substantial right[]” of the ap-
pellant has been prejudiced. See, e.g., Lopez, 76 M.J. at 154; Hum-
phries, 71 M.J. at 214–15.
13 For example, while the ACCA understood that it was bound
by our decision setting forth the burden-shifting prejudice analysis
in United States v. Paige, 67 M.J. 442, 449 (C.A.A.F. 2009), it not-
ed that our recent cases reviewing forfeited constitutional error
have omitted Paige’s burden shift, Tovarchavez, 2018 CCA
LEXIS 371, at *9–10, 2018 WL 3570591, at *4, and it rightly
12
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Opinion of the Court
B.
The Government nonetheless argues that we need not
apply the Chapman standard to the forfeited constitutional
error in this case because Chapman is distinguishable. The
Government argues that the Supreme Court in Chapman
was primarily concerned with defining the “harmless beyond
a reasonable doubt” standard, rather than drawing
distinctions between preserved and unpreserved errors, and
therefore it may not be the appropriate standard in all cases
involving forfeited constitutional error. This effort to
distinguish Chapman is unpersuasive.
First, whatever the Supreme Court’s primary concern,
Chapman itself clearly involved forfeited constitutional
error. At the time of petitioners’ trial in Chapman, the
California Constitution permitted the prosecution to argue
to the jury that it should draw adverse inferences regarding
petitioners’ guilt due to their failure to testify. 386 U.S. at
19. After Chapman’s trial, but before his appeal to the
California Supreme Court, the Supreme Court decided
Griffin v. California, 380 U.S. 609 (1965), which invalidated
the California constitutional provision at issue. Chapman,
386 U.S. at 19. There is no indication that petitioners
objected at trial to the prosecution’s argument, yet the
Supreme Court in Chapman did not treat the error as
waived. See id. at 19–20. The Supreme Court has since
clearly acknowledged that when there is a change in the law
during the pendency of the appeal, the error is deemed
forfeited rather than waived. Johnson v. United States, 520
U.S. 461, 467 (1997).
The Supreme Court granted certiorari in Chapman to
determine whether a violation of petitioners’ Griffin rights
emphasized the illogic of that burden-shifting standard.
Tovarchavez, 2018 CCA LEXIS 371, at *9–10, 2018 WL
3570591, at *4, *6 (“As a matter of logic, if appellant has estab-
lished material prejudice to a substantial right, how could the
government ever be able to show that the error was harmless be-
yond a reasonable doubt?”). We agree this standard is illogical,
because, of course, material prejudice in this context means that
the constitutional error is not harmless beyond a reasonable
doubt. Chapman, 386 U.S. at 24.
13
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
was, or could ever be, a harmless error. 386 U.S. at 20. In
fashioning its “harmless-constitutional-error rule,” the
Supreme Court recognized that, while “some constitutional
rights [are] so basic to a fair trial that their infraction can
never be treated as harmless error,” there could be certain
constitutional errors that “in the setting of a particular case
are so unimportant and insignificant that they may . . . not
requir[e] the automatic reversal of the conviction.” Id. at 22–
23 (discussing structural error and harmless error). The
Supreme Court further emphasized that the applicable
federal statute demonstrated an intention not to treat errors
that “affect [the] substantial rights” of a party as harmless.
Id. at 22. Restating and reaffirming its articulation of
“harmless error” from Fahy, 375 U.S. at 86–87 (requiring “a
reasonable possibility that the evidence complained of might
have contributed to the conviction”), the Supreme Court held
“that before a constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” Chapman, 386 U.S. at 24.
Here, as in Chapman, Appellant’s case involves an error
of constitutional dimension that arose only during the
pendency of his appeal. Where the precedent of the Supreme
Court has direct application to a case, “[this Court] should
follow the case which directly controls.”). Rodriguez de
Quijas, 490 U.S. at 484. There is no Supreme Court
precedent that meaningfully narrows Chapman’s application
to this case. Nothing in Chapman’s logic limits it in the way
that the Government proposes, nor is there any legitimate
military justification for interpreting “material prejudice”
under Article 59(a), UCMJ, differently for preserved and
forfeited constitutional errors. And, “[a]bsent articulation of
a legitimate military necessity or distinction, or a legislative
or executive mandate to the contrary, this Court has a duty
to follow Supreme Court precedent.” United States v. Cary,
62 M.J. 277, 280 (C.A.A.F. 2006). We thus reject the
Government’s invitation to overrule our precedent that
relies on Chapman.
C.
The ACCA relied on federal circuit courts’ precedent in
ignoring Chapman’s application to forfeited constitutional
error. Tovarchavez, 2018 CCA LEXIS 371, at *16–19, 2018
14
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
WL 3570591, at *7. To be certain, the federal circuit courts
appear to regularly evaluate prejudice arising from forfeited
constitutional errors by requiring an appellant to establish
that, “had the error not occurred, there is a ‘reasonable
probability’ that” the outcome would have been different.
United States v. Guzmán, 419 F.3d 27, 30 (1st Cir. 2005)
(citation omitted) (reviewing a forfeited Booker error); see,
e.g., United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.
2005) (same); United States v. Rodriguez, 398 F.3d 1291,
1299 (11th Cir. 2005) (same). And we often both review and
give persuasive weight to the decisions of the federal circuit
courts of appeal. See, e.g., Loving v. United States, 62 M.J.
235, 248, 259 (C.A.A.F. 2005) (citing with approval and
relying on cases from the United States Courts of Appeal for
the Tenth and D.C. Circuits for their persuasive reasoning).
Nevertheless, we decline to follow their lead because we do
not find a satisfactory rationale for the federal courts’ side
stepping of Chapman and we must interpret our own statute
consistent with our precedent.
Article 59(a), UCMJ, only permits appellate error
correction where the error “materially prejudices . . .
substantial rights.” This is true regardless of whether the
error was preserved or forfeited. As discussed supra pp. 8–
12, the settled practice of this Court, consonant with the
statutory requirements of Article 59(a), UCMJ, is to assess
prejudice—whether an error is preserved or not—based on
the nature of the right.
The federal circuit courts review errors under a different
framework: preserved error under Fed. R. Crim. P. 52(a) and
forfeited error under Fed. R. Crim. P. 52(b). For forfeited
errors they apply the four-prong test set out in Olano, 507
U.S. at 734: (1) “There must be an error or defect” that the
appellant has not affirmatively waived; (2) it “must be clear
or obvious”; (3) it “must have affected the appellant’s
substantial rights,” i.e., “ ‘affected the outcome of the district
court proceedings’ ”; and (4) if the three other prongs are
satisfied, the court of appeals has the discretion to remedy
the error if it “ ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’ ” Puckett v. United
15
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
States, 556 U.S. 129, 135 (2009) (alteration in original)
(citing Olano, 507 U.S. at 732–36). 14
Nothing in Olano purported to overrule Chapman—
indeed, it dealt with an unpreserved nonconstitutional error
rather than constitutional error. 15 Nonetheless, in the time
since Olano was decided, the federal courts have not applied
Chapman when assessing prejudice for unpreserved
constitutional errors; instead, they have applied several
formulations of lower standards for assessing prejudice
without discussion of Chapman. See, e.g., United States v.
Benford, 875 F.3d 1007, 1016–17 (10th Cir. 2017) (applying
Molina-Martinez to test prejudice); United States v.
Cardena, 842 F.3d 959, 998 (7th Cir. 2016) (same); United
States v. Hastings, 134 F.3d 235, 243–44 (4th Cir. 1998)
(reviewing for plain error “[b]ecause [the appellant] failed to
object in a timely fashion to the instruction” and assessing
prejudice based on whether “the erroneous ‘use’ instruction
given by the district court resulted in [the appellant’s]
conviction”); United States v. Wibhey, 75 F.3d 761, 769 (1st
Cir. 1996) (finding Chapman inapplicable to a forfeited
constitutional error without analysis and assessing
prejudice based on whether it “ ‘affected the outcome of the
[d]istrict [c]ourt proceedings’ ” (quoting Olano, 507 U.S. at
734)). 16
14 In cases applying “plain error” review, this Court does not
apply the fourth prong of the Olano test. See, e.g., Humphries, 71
M.J. at 214; United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F.
2011) (applying the three-prong military “plain error” test). This
divergence from federal practice is regularly justified by the dif-
ferences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b).
See, e.g., United States v. Tunstall, 72 M.J. 191, 196–97 & n.7
(C.A.A.F. 2013); Powell, 49 M.J. at 463–65.
15 Later cases—Johnson and Cotton—involved forfeited consti-
tutional error, but in both cases the Supreme Court side stepped
the issue of prejudice and resolved the case on the fourth prong of
Olano (which has not been adopted in the military system, see su-
pra note 14). Johnson, 520 U.S. at 469; Cotton, 535 U.S. 625, 632–
33 (2002).
16 While it does not apply Chapman to forfeited constitutional
errors, the United States Court of Appeals for the Tenth Circuit
qualifies its application of the plain error test in cases involving
16
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
While we need not reconcile the decisions of other courts
with Supreme Court precedent, a few observations explain
why we decline to adopt their practice. First, none of these
cases addresses the readily apparent tension between their
prejudice analysis, based on Olano’s analysis of a forfeited
nonconstitutional error, and Chapman’s, which involved a
forfeited constitutional error.
Second, Olano did not suggest that Fed. R. Crim. P. 52(a)
and Fed. R. Crim. P. 52(b) require different standards for
determining whether an error is prejudicial. Olano, 507 U.S.
at 734. Regarding the prejudice analysis, the Supreme Court
stated, “[Fed. R. Crim. P.] 52(b) normally requires the same
kind of inquiry [as Fed. R. Crim. P. 52(a)]. . . .” Id.
Nevertheless, many federal circuit courts have relied on
Olano’s “affected the outcome of the district court
proceedings” articulation, see, e.g., Wibhey, 75 F.3d at 769;
United States v. Turcks, 41 F.3d 893, 898 (3d Cir. 1994),
which is strikingly similar to the “reasonable probability
that, but for the error, the outcome of the proceeding would
have been different” articulation from Molina-Martinez and
Dominguez Benitez.
Third, both Fed. R. Crim. P. 52(a), which covers
“harmless error,” and Fed. R. Crim. P. 52(b), which covers
“plain error,” limit appellate review to errors that “affect
substantial rights,” and an error that “affect[s] substantial
rights,” is one that is prejudicial. Olano, 507 U.S. at 732,
734. And while the text of Fed. R. Crim. P. 52(a) itself draws
no distinction between constitutional and nonconstitutional
errors, federal courts regularly evaluate prejudice arising
from preserved errors based on the nature of the right. 17
potential constitutional errors. See Benford, 875 F.3d at 1016 (not-
ing that it applies the plain error rule “less rigidly when reviewing
a potential constitutional error” (quoting United States v. James,
257 F.3d 1173, 1182 (10th Cir. 2001)).
17 We separately note that the Supreme Court’s stated inter-
est in a prejudice standard that “encourage[s] timely objections
and reduce[s] wasteful reversals,” Dominguez Benitez, 542 U.S. at
82, is inapposite to this case given that “any objection by
Appell[ant] at trial would have been futile based on the law at the
time.” Humphries, 71 M.J. at 215 n.7. The “sandbagging” concerns
17
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
See, e.g., United States v. Hasting, 461 U.S. 499, 507–12
(1983) (applying Chapman to evaluate prejudice arising
from Griffin error); Kotteakos v. United States, 328 U.S. 750,
763–65 (1946) (determining prejudice from a
nonconstitutional error based on the effect on the outcome of
the proceeding). Fed. R. Crim. P. 52(b) utilizes the same
“affect substantial rights” language, yet federal courts
inexplicably evaluate prejudice arising from both
constitutional and nonconstitutional errors using the same
“effect-on-the-trial” analysis.
Fourth, the position taken by the ACCA has been raised
in dissent myriad times. See Humphries, 71 M.J. at 220–22
(Stucky, J., dissenting); Paige, 67 M.J. at 452–54 (Stucky, J.,
dissenting in part and concurring in the result); United
States v. Gilley, 56 M.J. 113, 127–30 (C.A.A.F. 2001)
(Sullivan, J., concurring in part and dissenting in part);
United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)
(Sullivan, J., concurring); Wilson, 54 M.J. at 60–62
(Sullivan, J., concurring in part and dissenting in part);
Powell, 49 M.J. at 466 (Sullivan, J., concurring in the
result). And we have repeatedly rejected the argument,
presented in each of those cases, that, when assessing
prejudice under Article 59, UCMJ, we either should or must
follow the plain error doctrine applied in the federal courts.
The mere existence of the labored and erroneous CCA
opinion in this case or dissents in other cases from this
Court neither undermines the force of stare decisis nor
makes our precedent unworkable. See Payne v. Tennessee,
501 U.S. 808, 827 (1991).
We are simply unable to cogently distill a compelling, let
alone persuasive, rationale based on the federal courts’
treatment of Supreme Court precedent or their analysis of
Fed. R. Crim. P. 52(a) and (b) to jettison our precedent
regarding Article 59, UCMJ. Therefore, when interpreting
this separate statute that governs the military justice
system, we will still apply the Chapman standard when
assessing prejudice for forfeited constitutional errors—cases
identified in Puckett, 556 U.S. at 134 (internal quotation marks
omitted) (citations omitted), are simply not present here.
18
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
just like Chapman. See Rodriguez de Quijas, 490 U.S. at 484
(“If a precedent of this Court has direct application in a
case . . . [this Court] should follow the case which directly
controls. . . .”); Pack, 65 M.J. at 385 (“[L]ower courts should
follow the case which directly controls, leaving to [the
Supreme] Court the prerogative of overruling its own
decisions.” (internal quotation marks omitted) (quoting
Agostini, 521 U.S. at 237)).
Prejudice
Given our holding in Hills, the propensity instruction at
issue is undeniably clear or obvious error at the time of the
appeal. Williams, 77 M.J. at 463. Thus, the question before
us is whether such error materially prejudiced Appellant’s
substantial rights. At issue here is Appellant’s right to be
presumed innocent until proven guilty, a “foundational
tenet” of the Fifth Amendment’s Due Process Clause, and a
substantial right infringed upon by the erroneous
instruction. Hills 75 M.J. at 356 (citing In re Winship, 397
U.S. 358, 363 (1970)). Under Article 59(a), UCMJ, there is
material prejudice where “we simply cannot be certain that
the erroneous propensity instruction did not taint the
proceedings or otherwise ‘contribute to the defendant’s
conviction or sentence.’ ” Williams, 77 M.J. at 464 (quoting
Hills, 75 M.J. at 358); see also Chapman, 386 U.S. at 24.
The ACCA, while finding that the evidence against
Appellant in this case was significant, was not convinced
that the error was harmless beyond a reasonable doubt.
Tovarchavez, 2018 CCA LEXIS 371, at *19–22, 2018 WL
3570591, at *8–9. Noting that “there is a wide gulf between
testing for plain error and testing for constitutional
harmlessness,” the ACCA determined that the weight of the
evidence fell between the two standards of review. 18 Id. at
*22, 2018 WL 3570591, at *9.
18 In the interest of clarity, we note, as demonstrated through-
out this opinion, that distinguishing between plain error and con-
stitutional harmlessness is analytically flawed. The proper dis-
tinctions, rather, are between preserved and forfeited error and
constitutional and nonconstitutional rights. Forfeited errors are
subject to plain error review, while preserved errors are not. Un-
19
United States v. Tovarchavez, No. 18-0371/AR
Opinion of the Court
The ACCA’s conclusion that this Hills error was not
harmless beyond a reasonable doubt was supported by two
specific observations. First, while SPC JR’s testimony
describing the event was supported by DNA evidence, the
DNA evidence did not directly contradict the defense theory
of the case. Id. at *22, 2018 WL 3570591, at *9. Second,
Appellant’s text message apologies do not unassailably
establish his consciousness of guilt.
First, the presence of DNA was entirely consistent with
the defense theories that that SPC JR either consented or
that Appellant acted under a reasonable mistake of fact as
to consent, the mere presence of his DNA does not defeat his
defense. Second, while Appellant’s text message apologies
could be interpreted as establishing consciousness of guilt,
they could also have been “statements from someone who
knows they have acted inappropriately, but not criminally.”
Id., 2018 WL 3570591, at *9. Third, Appellant was acquitted
of the Specification 1, making it less clear that the
bootstrapping effect of the instruction did not “tip[] the
balance” with respect to the members’ ultimate
determination regarding Specification 2. Hills, 75 M.J. at
358.
Accordingly, we are unable to say with certainty that the
erroneous propensity instruction did not taint the
proceedings or otherwise contribute to Appellant’s conviction
or sentence. Because the error was not harmless beyond a
reasonable doubt, we must set aside the findings and
sentence.
Judgment
The judgment of the United States Army Court of
Criminal Appeals is reversed, and the findings and sentence
are set aside. The record is returned to the Judge Advocate
General of the Army. A rehearing is authorized.
der Article 59, UCMJ, all errors of law—preserved or not—must
have prejudiced an appellant’s rights, and the test we employ to
determine prejudice depends on the nature of the right. See supra
pp. 8–12.
20
United States v. Tovarchavez, No. 18-0371/AR
Judge MAGGS, with whom Chief Judge STUCKY joins,
dissenting.
Article 59(a), Uniform Code of Military Justice (UCMJ),
provides: “A finding or sentence of a court-martial may not
be held incorrect on the ground of an error of law unless the
error materially prejudices the substantial rights of the ac-
cused.” 10 U.S.C. § 859(a) (2012). This statutory provision
establishes a test of material prejudice, not a test of harm-
lessness beyond a reasonable doubt. This Court must accept
the “balance achieved by Congress” in enacting the UCMJ
unless its provisions are unconstitutional. Weiss v. United
States, 510 U.S. 163, 181 (1994). Accordingly, when this
Court hears an appeal, we must review errors for material
prejudice under Article 59(a), UCMJ, unless the United
States Constitution requires us to apply a different test.
No one disputes that the material prejudice test of Arti-
cle 59(a), UCMJ, is constitutional when we review cases that
do not involve constitutional errors. See, e.g., United States
v. Hamilton, __ M.J. __ (12) (C.A.A.F. 2019) (applying the
material prejudice test of Article 59(a), UCMJ, when review-
ing an error under the Rules for Courts-Martial). In addi-
tion, no one disputes that when we review a preserved objec-
tion to a constitutional error, we cannot apply the material
prejudice test of Article 59(a), UCMJ, because to do so would
be unconstitutional. The United States Supreme Court held
in Chapman v. California that “before a federal constitu-
tional error can be held harmless, the court must be able to
declare a belief that it was harmless beyond a reasonable
doubt.” 386 U.S. 18, 24 (1967).
The question in this case is whether the Constitution al-
so requires us to apply Chapman’s harmlessness beyond a
reasonable doubt test when we review a forfeited objection to
a nonstructural constitutional issue. Unlike the Court, I
conclude that the answer is no. 1 Although the Supreme
Court did not distinguish between preserved and forfeited
objections in Chapman, the Supreme Court in subsequent
1 Judge Sullivan previously reached the same conclusion in
his separate opinion in United States v. Powell, 49 M.J. 460,
466 (C.M.A. 1998) (Sullivan, J., concurring in the result).
United States v. Tovarchavez, No. 18-0371/AR
Judge MAGGS, dissenting
cases has not applied Chapman’s test when reviewing for-
feited constitutional objections.
In United States v. Olano, 507 U.S. 725 (1993), a district
court allowed an alternate juror to observe the jury’s delib-
erations during the respondent’s criminal trial. Id. at 727.
The respondent did not object to this procedure at trial, but
argued on appeal that the presence of the alternate juror vi-
olated the Federal Rules of Criminal Procedure. Id. at
728−30. The Supreme Court ruled that the respondent had
forfeited his objection to this error by not raising it at trial.
Id. at 730−31. The Court then announced that under Fed. R.
Crim. P. 52(b), an appellate court may consider a forfeited
objection to an error at trial only if the appellate court de-
termines that three conditions are met: (1) that “there in-
deed be an ‘error,’ ” id. at 732 (quoting Fed. R. Crim. P.
52(b)); (2) that “the error be ‘plain,’ ” a term which is “synon-
ymous with ‘clear’ or, equivalently, ‘obvious,’ ” id. at 734
(same); and (3) that the plain error “affec[t] substantial
rights,” id. If all three conditions are met, the Supreme
Court held, an appellate court may correct the error if the
error “ ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’ ” Id. at 736 (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)). Under
the Olano test, the appellate court need not determine that
the error was harmless. See id. at 734.
The Olano decision concerned a forfeited objection to a
nonconstitutional error and therefore does not directly an-
swer the question of what test an appellate court should ap-
ply when reviewing a forfeited objection to a constitutional
error. But four years later, in Johnson v. United States, 520
U.S. 461 (1997), the Supreme Court applied Olano’s plain
error test to a forfeited objection to a constitutional error. In
that case, the petitioner was charged with making a false
material declaration before a grand jury. Id. at 463. The dis-
trict court ruled that the court, rather than the jury, should
determine whether the petitioner’s declaration was material.
Id. at 464. The petitioner argued for the first time on appeal
that this ruling violated United States v. Gaudin, 515 U.S.
506 (1995), which held that the Fifth Amendment’s Due Pro-
cess Clause and the Sixth Amendment right to a jury trial
require that a jury determine that the defendant is guilty of
2
United States v. Tovarchavez, No. 18-0371/AR
Judge MAGGS, dissenting
each element of the charged crime. Gaudin, 515 U.S. at
509−10. The standard of review was an important issue on
appeal in Johnson. The government argued that the Su-
preme Court should apply the Olano test because the peti-
tioner had forfeited her objection, while the petitioner ar-
gued that the error was a structural constitutional error and
could not be reviewed under either the Olano test or a harm-
lessness test. 2 The Supreme Court sided with the Govern-
ment and reviewed the constitutional error using the Olano
test. Johnson, 520 U.S. at 465−66. The Supreme Court nota-
bly did not require the government to prove that the forfeit-
ed constitutional error was harmless beyond a reasonable
doubt.
The Supreme Court also applied the Olano test when re-
viewing a forfeited objection to a constitutional error in
United States v. Cotton, 535 U.S. 625 (2002). In that case,
the respondents argued that their indictments unconstitu-
tionally failed to allege a fact that increased the statutory
maximum sentence in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000). As in Johnson, the parties disputed
what standard of review should apply. 3 The Supreme Court
sided with the government and applied the Olano test be-
cause the respondents had forfeited their objection by not
preserving it at trial. 535 U.S. at 631 (citing Olano, 507 U.S.
at 731, and Johnson, 520 U.S. at 466−67). Again, the Su-
preme Court did not require the government to prove that
the forfeited constitutional error was harmless beyond a
reasonable doubt.
The Supreme Court’s decisions in Johnson and Cotton
show that the Constitution does not require courts to apply
Chapman’s harmlessness beyond a reasonable doubt test
when reviewing forfeited objections to constitutional errors.
2 Compare Brief of the Petitioner at 19−23, Johnson v. United
States, 520 U.S. 461 (1997) (No. 96-203), 1996 WL 741434, at
*19−23, with Brief for the United States at 10−12, Johnson, 520
U.S. 461, 1997 WL 37887, at *10−12.
3 Compare Brief for the United States at 34−37, United States
v. Cotton, 535 U.S. 625 (2002) (No. 01-687), 2002 WL 264766,
*34−37, with Brief of Respondents at 38−44, Cotton, 535 U.S. 625,
2002 WL 463382, at *38−44.
3
United States v. Tovarchavez, No. 18-0371/AR
Judge MAGGS, dissenting
The standard of review was contested in both cases and in
both cases the Supreme Court did not test the constitutional
error for harmlessness beyond a reasonable doubt. All of the
other United States Courts of Appeals that hear criminal
cases agree with this position; none of them applies the
Chapman harmlessness beyond a reasonable doubt test
when reviewing forfeited constitutional objections. 4 Among
all these federal courts, our Court is the outlier, and our po-
sition is incorrect.
In this case, the Court should apply the material preju-
dice test required by Article 59(a), UCMJ. The Constitution
does not mandate that we reject Article 59(a), UCMJ, and
apply a test of harmlessness beyond a reasonable doubt. 5
Under the material prejudice test, I would affirm the judg-
4 The courts in all of the following cases reviewed forfeited ob-
jections to constitutional errors using the Olano test rather than a
test of harmlessness beyond a reasonable doubt: United States v.
Soto, 720 F.3d 51, 57 (1st Cir. 2013); United States v. Bruno, 383
F.3d 65, 78 (2d Cir. 2004); United States v. Vazquez, 271 F.3d 93,
98 (3d Cir. 2001); United States v. Hughes, 401 F.3d 540, 547 (4th
Cir. 2005); United States v. Mudekunye, 646 F.3d 281, 289 (5th
Cir. 2011); United States v. Yancy, 725 F.3d 596, 600−01 (6th Cir.
2013); United States v. Cardena, 842 F.3d 959, 979 (7th Cir. 2016);
United States v. Elmardoudi, 501 F.3d 935, 943−44 (8th Cir.
2007); United States v. Moreland, 622 F.3d 1147, 1158 (9th Cir.
2010); United States v. Turiettta, 696 F.3d 972, 976, 983−84 (10th
Cir. 2012); United States v. Garcia, 906 F.3d 1255, 1260 (11th Cir.
2018); United States v. McGill, 815 F.3d 846, 875 (D.C. Cir. 2016).
The United States Court of Appeals for the Federal Circuit, which
does not hear criminal cases, has not addressed the issue.
5 The principle of stare decisis does not require a different re-
sult. As the Court acknowledges, although most of this Court’s
prior cases have applied the harmlessness beyond a reasonable
doubt test to both preserved and unpreserved objections to consti-
tutional errors, some of our precedents have not. See United States
v. Guardado, 77 M.J. 90, 93−95 (C.A.A.F. 2017). We thus current-
ly have no clear law on this point—a situation dramatically shown
by the majority and dissenting opinions of the Court of Criminal
Appeals in this case. See Graves v. Schmidlapp, 315 U.S. 657, 665
(1942) (declining to apply the principle of stare decisis when faced
with multiple conflicting precedents). In addition, reaching the
correct conclusion on this issue is very important because in a
great many of the cases that we review, the Appellant has forfeit-
ed an objection by failing to raise it at trial.
4
United States v. Tovarchavez, No. 18-0371/AR
Judge MAGGS, dissenting
ment of the United States Army Court of Criminal Appeals.
I agree with that court’s conclusion that, while the forfeited
constitutional error in this case may not have been harmless
beyond a reasonable doubt, it did not result in material
prejudice. United States v. Tovarchavez, No. ARMY
20150250, 2018 CCA LEXIS 371, at *21−22, 2018 WL
3570591, at *9 (A. Ct. Crim. App. July 19, 2018).
5