United States v. Greene-Watson (2025)

Because I agree that Appellant was not prejudiced by the admission of evidence of his uncharged conduct under Military Rule of Evidence (M.R.E.) 404(b), I join Part III.B. of the Court's opinion. I also agree that the military judge did not abuse his discretion by admitting that evidence, but I write separately to voice my concern about this Court's precedent broadly interpreting the scope of the M.R.E. 404(b)(2) exception allowing the admission of otherwise inadmissible evidence for the purpose of proving a common scheme or plan. See, e.g., United States v. Munoz, 32 M.J. 359 (C.M.A. 1991); United States v. Johnson, 49 M.J. 467 (C.A.A.F. 1998); United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019). In a future case, I believe that the Court should reconsider that precedent to prevent the common scheme or plan exception from swallowing M.R.E. 404(b)(1)’s general rule prohibiting the admission of propensity evidence.

In a court-martial, the President has prohibited the admission of evidence of a crime, wrong, or other act “to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character,” M.R.E. 404(b)(1), but nevertheless allows the admission of such evidence for another purpose including proving the existence of a “plan.” M.R.E. 404(b)(2). This Court and its predecessor have long interpreted this rule as applying the exception from civilian courts allowing “the introduction of evidence tending to show the existence of a plan, design or scheme on the part of an accused embracing the offenses with the commission of which he is charged.” United States v. Haimson, 5 C.M.A. 208, 227, 17 C.M.R. 208, 227 (1954).

Under this Court's precedent, the distinction between admitting evidence to demonstrate propensity—an impermissible purpose under M.R.E. 404(b)(1)—and the admission of evidence to prove a common scheme or plan—a permissible purpose under M.R.E. 404(b)(2)—can be difficult to explain. Here, for instance, the military judge admitted the challenged evidence to demonstrate that Appellant acted according to a common scheme or plan of violence and intimidation against his wife. Yet, it is not clear how this differs meaningfully from admitting the evidence to demonstrate that Appellant simply possesses a propensity to act violently towards his spouse.

To the casual observer, Appellant's charged and uncharged acts against his wife would not appear to be part of any greater plan or scheme. Although Appellant repeatedly lashed out at his wife, the evidence does not suggest that he acted systematically in pursuit of some preexisting, overarching goal. See Becker v. ARCO Chemical Co., 207 F.3d 176, 195-97 (3d Cir. 2000) (examining when evidence may be admitted to prove a plan or scheme under Fed. R. Evid. 404(b)(2)). Instead, the uncharged conduct seems to establish nothing more than how Appellant reacts when he becomes angry and frustrated with his wife. As Judge Sparks aptly puts it, Appellant simply appears to be “a young man with a short temper.” United States v. Greene-Watson, __ M.J. __, __ (1) (C.A.A.F. 2025) (Sparks, J., concurring in part and in the judgment).

Many commentators suggest that evidence of uncharged acts should only be admitted to establish a plan or scheme if that evidence demonstrates a conscious commitment by the accused to a specific premeditated course of conduct. See Becker, 207 F.3d at 195-98 (reviewing secondary sources). But unfortunately for Appellant, this Court has taken a different approach, repeatedly holding that that the Government may offer evidence of the accused's uncharged misconduct that would otherwise be inadmissible as propensity evidence under M.R.E. 404(b)(1) so long as that conduct shares “common factors” with the charged conduct. Hyppolite, 79 M.J. at 166 (C.A.A.F. 2019) (first citing Munoz, 32 M.J. at 363; then citing Johnson, 49 M.J. at 475).

Appellant is correct that this Court's predecessor once held that uncharged acts needed to be almost identical to the charged acts to be admissible to prove a plan or scheme under M.R.E. 404(b)(2). United States v. Brannan, 18 M.J. 181, 183 (C.M.A. 1984) (citing United States v. Danzey, 594 F.2d 905, 913 (2d Cir. 1979)). But more recently, this Court has applied a much less demanding standard. In Munoz, this Court affirmed the military judge's conclusion that uncharged acts were admissible under M.R.E. 404(b)(2) when those acts shared “common factors” with the charged offenses. 32 M.J. at 363-64. And in Johnson, the Court concluded that similar “factors” between the proffered evidence of uncharged acts and the charged offenses was sufficient for the evidence to be admissible to prove a plan or scheme. 49 M.J. at 475. In 2019, this Court expressly relied on Munoz and Johnson in concluding that two military judges did not abuse their discretion in admitting evidence of other crimes to show that the accused acted pursuant to a “ ‘common plan to engage in sexual conduct with his friends after they have been drinking or were asleep or falling asleep’ ” when the various crimes shared “common factors.” Hyppolite, 79 M.J. at 163, 166.

In light of Munoz, Johnson, and Hyppolite, I cannot conclude that the military judge in this case abused his discretion because his ruling was not “arbitrary, fanciful, clearly unreasonable[,] or clearly erroneous.” United States v. Uribe, 80 M.J. 442, 446 (C.A.A.F. 2021) (internal quotation marks omitted) (citation omitted). Although Appellant makes a strong argument that the Government proffered the evidence of Appellant's additional, uncharged misconduct to establish that he has a propensity to commit crimes like the one with which he was charged, our precedent authorizes military judges to find a common plan or scheme based solely on “common factors” among the various acts. Hyppolite, 79 M.J. at 166. 1 Moreover, as Judge Johnson rightly points out, the risk of prejudice to Appellant was extremely low in this military judge-alone case in which the military judge expressly stated that he would only consider the evidence of the uncharged acts for the limited purpose of establishing a common scheme or plan and not as improper propensity evidence. Greene-Watson, __ M.J. at __ (14). For these reasons, I agree that the decision of the AFCCA should be affirmed.

Nevertheless, in a future case I would be open to reconsidering the proper scope of the “common scheme or plan” exception. Doing so would allow this Court to ensure that we are sufficiently protecting defendants against the unfair prejudice that flows from propensity evidence while still allowing for the admission of relevant, probative evidence as authorized by the President.

FOOTNOTES

1.   This expansive interpretation of the common scheme or plan exception evolved in cases dealing with child abuse, where courts faced difficult evidentiary circumstances. See Munoz, 32 M.J. at 359 (admitting evidence of uncharged indecent acts with a child); Johnson 49 M.J. at 468 (same). Today, M.R.E. 413 and M.R.E. 414 would govern many such cases and would likely provide avenues for admitting evidence that were not previously available when these precedents were established.

Judge HARDY, with whom Judge SPARKS joins, concurring in part and in the judgment.