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53 M.J. 476

United States v. Wright

Court of Appeals for the Armed Forces

Decided August 31, 2000

Court of Appeals for the Armed Forces · decided 2000-08-31

Applies 10 U.S.C. § 859

Relies on Dowling v. United States · United States v. Castillo · United States v. Enjady

Good law ✅— No negative treatment on recordhow we know

Decided 2000-08-31

How this case has been cited

Cited by 44 later decisions — most recently January 2021 · most notably United States v. Lemay (2001), United States v. Berry (2005)

1 federal appellate · 3 state decisions

240200020102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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*486SULLIVAN, Judge

¶1(concurring in part and in the result):

¶2I would hold that Fed.R.Evid. 413, as incorporated by Mil.R.Evid. 1102, was applicable to appellant’s court-martial in March of 1997 and it was constitutional. See United States v. Enjady, 134 F.3d 1427, 1430 (10th Cir.1998) (holding that Fed.R.Evid. 413 is facially constitutional because Fed.R.Evid. 403 balancing test applies), citing Dowling v. United States, 493 U.S. 342, 352-53, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); accord United States v. Castillo, 140 F.3d 874, 881-83 (10th Cir.1998). However, I agree with Judge Gierke in his view that evidence of conduct that occurs after the charged offense but before the trial is objectionable under Mil.R.Evid. 403. See United States v. Matthews, 53 MJ 465 (2000) (Sullivan, J., concurring in the result).* Nevertheless, I would find no plain error here. See Article 59(a), UCMJ, 10 USC § 859(a).

¶3 My concurrence in Matthews, which rested on Mil.R.Evid. 403's protection against undue prejudice, is legally distinct from other cases in which this Court has dealt with such evidence on grounds other than undue prejudice. E.g., United States v. Caniete, 28 MJ 426, 427-28 (1989); United States v. Dorsey, 38 MJ 244, 247 (1993); United States v. Colon-Angueira, 16 MJ 20, 25 (1983), citing J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 399 (3d ed.1940).

EFFRON, Judge

¶4(concurring in part and in the result):

¶5I agree with the principal opinion’s treatment of Issue I.

¶6Issue II, as framed by appellant, is a facial challenge to Rule 413. I agree that the constitutionality of Rule 413 may be' sustained by applying “the safeguards embodied in Rule 403[.]” United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir.1998); see also id.(setting forth specific factors that must be considered under Rule 403 in a sexual assault case); and United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.1998) (although the trial court is not required to make detailed findings of fact under Rule 403, it is important that the court “fully evaluate the proffered Rule 413 evidence and make a clear record of the reasoning behind its findings”).

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