The AFCCA has denied a petition for a writ of habeas corpus in United States v. Hippolyte.
The United States Court of Appeals for the Armed Forces issued a decision in Petitioner’s case on 1 August 2019, affirming the findings and sentence as approved by this court. United States v. Hyppolite, 79 M.J. 161, 167 (C.A.A.F. 2019). Thereafter, Petitioner did not file a petition for writ of certiorari with the United States Supreme Court, and direct review of Petitioner’s case was complete. On 8 December 2020, the commander of the Air Force District of Washington ordered execution of Petitioner’s dishonorable discharge, having already ordered the other portions of Petitioner’s sentence executed.
Accordingly, the AFCCA held it lacks jurisdiction.
Here are links to the prior decisions in the case: AFCCA, CAAF.
Hyppolyte was charged with five abusive sexual contacts. He was sentenced to seven years and a Duck Dinner with all the trimmings.
The issue at CAAF asked if evidence of one or more charges on the charge sheet could be used and argued under Mil. R. Evid. 404(b) to demonstrate a "common plan or scheme." Now might be a good opportunity to re-read the CAAF opinion for a discussion on how Mil. R. Evid. 404(b)(1) and (b)(2) work at trial.
Use of such evidence to prove a propensity is prohibited. Mil. R. Evid. 404(b)(1). But,
Under M.R.E. 404(b)(2), while evidence of a crime, wrong, or other act may not be used to show character or propensity, it “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” As the motions judge correctly recognized, we have previously held that one proper purpose of such evidence is to prove the existence of a plan or scheme. 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).
The trial judge had admitted the evidence to demonstrate a common "scheme." AFFCA disagreed that the evidence showed a common scheme but found the error harmless. The CAAF affirmed AFCCA but,
[C]onclude[d] that the motions judge and trial judge did not abuse their discretion in their M.R.E. 404(b) ruling. We therefore d[id] not reach the issue of prejudice.
Judge Ohlson filled a dissent in which he argued the AFFCA was right as to the abuse of discretion and the trial error was materially prejudicial.
Oh, and should you ask, the writ was filed in preparation for a federal habeas petition and to show exhaustion of the military appellate system. I suspect they did not petition the Supremes directly because it would be a fruitless exercise--not an issue the court is likely to grant on. Cf. Noyd v. Bond, 395 U.S. 683, 698, n.11 (1969). We do not believe that petitioner may properly be required to exhaust a remedy which may not exist. Cf. Union Pacific R. Co. v. Weld County, 247 U.S. 282 (1918); Township of Hillsborough v. Cromwell, 326 U.S. 620 (1946).
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