The Court of Appeals for the Armed Forces expanded the scope of evidence of uncharged acts the Government may introduce at court-martial with its latest decision. In United States v. Greene-Watson, the Court affirmed SrA Greene-Watson’s conviction for communicating a threat to his wife. The charged offense occurred in September 2020 during an argument between SrA Greene-Watson and his wife after she accused him of attempting to suffocate their infant. Approximately a month after this incident, SrA Greene-Watson moved back into the family home with his wife and son. SrA Greene-Watson’s court-martial for the alleged assault of his son and the threat to his wife was scheduled for March 2022. A few weeks before trial, 17 months after the charged offense, SrA Greene-Watson and his wife got into another argument. His wife alleged that during this argument he assaulted her, threatened her, threw her phone, tried to keep her from leaving, turned off all credit cards and withdrew all money from their joint bank account when she left to stay in a hotel, and turned off the utilities in their home before she returned.
The Government notified the defense that it intended to offer evidence regarding this February 2022 event under M.R.E. 404(b) in SrA Greene-Watson’s court-martial for the September 2020 charges. M.R.E. 404 generally states that evidence of an individual’s character or character trait cannot be used to prove that the person acted in accordance with that character or character trait on a particular occasion. The Government cannot say that an individual committed other crimes before, so they must have a propensity for committing crimes and must be guilty now. For example, if an individual is charged with burglary, the fact that they may have committed burglary in the past cannot be introduced to prove that they committed the charged offense. However, M.R.E. 404(b) states that evidence of crimes, wrongs, or other acts can still be introduced if it is offered for another purpose, such as proving motive, intent, opportunity, preparation, plan, knowledge, absence of mistake, or lack of accident. So, in our example of the burglary case, if the charged burglary was carried out in a unique or specific way–like a cat burglar who entered by the second story window and left by shimmying down a drain pipe–then evidence that the defendant previously committed burglaries by always entering through a second story window and leaving via drain pipe would be admissible. In that case, it would help to prove the identity of the burglar and to prove his preparation, intent, and plan to commit the crime. Another example of an acceptable use of other acts is to prove a common plan. This could happen where an individual is on trial for defrauding investors out of their investments through a Ponzi scheme. Evidence of uncharged acts within the same scheme or a previous similar scheme would be admissible as proof of a common plan to defraud investors. This evidence of a plan would prove the fraudster’s intent, motive, and knowledge in regards to the charged offenses.
In this case, the defense moved to exclude evidence from the February 2022 argument but the Military Judge allowed the evidence as proof of SrA Greene-Watson’s common plan to control and intimidate his wife. At trial, SrA Greene-Watson was acquitted of the assault against his son and convicted of the threat made to his wife. He appealed the conviction, arguing that the introduction of the February 2022 evidence was not similar enough or close enough in time to the charged offenses to be considered part of a common plan. The Air Force Court of Criminal Appeals affirmed the conviction and SrA Greene-Watson appealed to the Court of Appeals for the Armed Forces. This Court also affirmed the conviction, finding that the evidence of acts 17 months after the charged offense was similar enough to the charged offenses and close enough in time to be considered evidence of a common plan. The Court held that the evidence was not used as impermissible propensity evidence, but as evidence to prove the wrongfulness of SrA Greene-Watson’s threat to his wife. This opinion further expands the types of evidence that can be considered as part of a “common plan” and blurs the line between propensity evidence and common plan evidence.
If you or your loved one want to appeal a court-martial, you need someone with experience who knows what arguments to make on your behalf, and when to make them. I have argued this issue, and numerous others in front of appellate courts and CAAF. I have the experience you need. Please call Bill Cassara at (706) 860-5769 for a free consultation.