United States v. Greene-Watson, (2025)

I join Part III.B. of the Court's opinion in recognizing that Appellant was not prejudiced by the admission of Military Rule of Evidence (M.R.E.) 404(b) other acts evidence. I also join Judge Hardy in his expression of concern regarding where our precedent is leading us on exactly what constitutes evidence of a common plan or scheme under M.R.E. 404(b). While conduct need not be identical, too often evidence admitted under the M.R.E. 404(b) common scheme or plan exception is merely evidence of parallel offenses or a temporally proximate series of events. What we seem to have here is a young man with a short temper. It is unlikely his behavior or motivations in either the charged or uncharged instances stemmed from anything more calculated than his inability to control his anger. However, because of what I believe may be a lack of clarity in this area, like Judge Hardy, I cannot conclude the military judge abused his discretion in admitting the evidence. I too implore the Court to remain open to reconsidering the proper scope of the common plan or scheme exception. Nonetheless, I feel compelled to address my separate concerns about applying the balancing test in M.R.E. 403 in military judge-alone trials.

M.R.E. 404(b)(1)-(2) provides that “[e]vidence of a crime, wrong, or other act․ may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” If a military judge determines that the proffered evidence is properly admissible under M.R.E. 404(b), he or she then must conduct a M.R.E. 403 balancing test and exclude this otherwise admissible evidence “if its probative value is substantially outweighed by a danger of ․ unfair prejudice.” This balancing test serves as a means of guarding against “[t]he general risk ․ that members will treat evidence of uncharged acts as character evidence and use it to infer that an accused has acted in character, and thus convict.” United States v. Staton, 69 M.J. 228, 232 (C.A.A.F. 2010).

Appellant argues that the military judge's M.R.E. 403 balancing test was insufficient. Here, the military judge broadly found that “the probative value of this evidence is not substantially outweighed by the danger of unfair prejudice or any other factor that might be taken into consideration under [M.R.E. 403].” This is effectively a recitation of the rule.

The Court's opinion correctly finds that the military judge did not err in his M.R.E. 403 balancing test. However, I would go further. It is essential to note that this was a military judge-alone trial. The risk of relevant evidence causing unfair prejudice in a bench trial is nonexistent because the risk addressed in Staton is eliminated by the absence of a members panel. As a result, a M.R.E. 403 balancing test should not be required.

Not requiring the M.R.E. 403 balancing test in a military judge-alone trial would bring this Court in line with most other federal courts. 1 The United States Court of Appeals for the Fifth Circuit takes the position that in bench trials “excluding relevant evidence on the basis of ‘unfair prejudice’ is a useless procedure.” Gulf States Utilities Co., 635 F.2d at 519. In a bench trial, the judge can “exclude those improper inferences from his mind in reaching a decision.” Id. The United States Court of Appeals for the Fourth Circuit has taken the position that in a bench trial “evidence should not be excluded under 403 on the ground that it is unfairly prejudicial.” Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994). In an unpublished opinion, the United States Court of Appeals for the Tenth Circuit adopted the reasoning of the Fourth and Fifth Circuits and stated that “Rule 403 does not provide a valid basis for contesting the admission” of evidence in a bench trial. United States v. Kienlen, 349 F. App'x 349, 351 (10th Cir. 2009). The military justice system stands in the minority by requiring military judges in a military judge-alone trial to conduct a M.R.E. 403 balancing test.

The M.R.E. 403 balancing test exists to prevent enflaming the passions of servicemembers upon hearing prejudicial evidence. Such an issue is not a concern in a bench trial. “A military judge is presumed to know the law and apply it correctly, is presumed capable of filtering out inadmissible evidence, and is presumed not to have relied on such evidence on the question of guilt or innocence.” United States v. Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000). At two separate places in his ruling, the military judge made clear the evidence would not be used for a propensity purpose:

This is distinguishable from a propensity argument․

․

․ the court will consider this M.R.E 404(b) evidence only for the limited purpose that it may establish a common scheme or plan and not for reasons prohibited by M.R.E. 404(a) or for propensity purposes.

․

․ As the finder of fact in this military judge alone case, the Court will consider this M.R.E. 404(b) evidence only for the limited purpose that it may establish a common scheme or plan and not for reasons prohibited by M.R.E. 404(a) or for propensity purposes.

In a bench trial, the individual evaluating the evidence under M.R.E. 403 is determining whether they themselves will be prejudiced by the admission of said evidence. It is a legal fiction to pretend that once a military judge has reviewed the evidence that they could then put said evidence out of their mind as if they never saw it. Once, however, the military judge has stated that they will not misuse the evidence, we must trust the presumption that military judges know the law, can filter out inadmissible evidence, and that they have not relied on such evidence on the question of guilt or innocence.

For these reasons, I respectfully concur in part and in the judgment.

FOOTNOTES

1.   The vast majority of federal courts have endorsed the idea that, in the judge-alone context, the risk of prejudice is significantly reduced or eliminated outright. See Clark v. Quiros, No. 3:19-cv-575 (VAB), 2024 U.S. Dist. LEXIS 118046, at *6, 2024 WL 3292540, at *2 (D. Conn. July 3, 2024) (“In nonjury cases the district court can commit reversible error by excluding evidence but it is almost impossible for it to do so by admitting evidence.” (citation omitted) (internal quotation marks omitted)); see also United States v. Hall, 202 F.3d 270 (6th Cir. 2000) (per curiam) (unpublished table decision) (“In bench trials, the application of the unfair prejudice portion of Rule 403 has been seen as an unnecessary and useless procedure.” (citation omitted) (internal quotation marks omitted)); United States v. Shukri, 207 F.3d 412, 419 (7th Cir. 2000) (“In a bench trial, we assume that the district court was not influenced by evidence improperly brought before it unless there is evidence to the contrary.”); United States v. De Anda, No. 18-cr-00538-TSH-1, 2019 U.S. Dist. LEXIS 110880, at *13, 2019 WL 2863602, at *4 (N.D. Cal. July 2, 2019) (“[T]he Court finds [defendant's] Rule 403 argument inapplicable here because this action will be tried in a bench trial.”); Woods v. United States, 200 F. App'x 848, 853 (11th Cir. 2006) (“[T]he part of Rule 403 that authorizes exclusion of evidence because of its unfair prejudicial impact ‘has no logical application to bench trials.’ ” (quoting Gulf States Utilities Co. v. Ecodyne Corp, 635 F.2d 517, 519 (5th Cir. Unit A 1981))); United States ex rel. Morsell v. NortonLifeLock, Inc., 567 F. Supp. 3d 248, 261 (D.D.C. 2021) (“The Court similarly is not concerned with unfair prejudice from this document given that this will be a bench trial.”).

Judge SPARKS, concurring in part and in the judgment.