Menard and the Misuse of M.R.E. 404(b)(2) as Evidence of a Common Plan or Scheme

CAAF’s September 28, 2026, decision in United States v. Menard, No. 25-0173/AF, presents another chapter in the Court’s unsettled jurisprudence over “common plan or scheme” evidence under Military Rule of Evidence 404(b)(2). This time, however, the Court found error.

The lesson from Menard is straightforward. Calling several acts a “course of conduct” does not establish a common plan or scheme. Nor can the Government transform evidence of an accused’s character or general pattern of behavior into admissible evidence merely by identifying characteristics the acts share.

There must actually be a plan.

CAAF’s September 28, 2026, decision in United States v. Menard, No. 25-0173/AF, presents another chapter in the Court’s unsettled jurisprudence over “common plan or scheme” evidence under Military Rule of Evidence 404(b)(2). This time, however, the Court found error.

The lesson from Menard is straightforward. Calling several acts a “course of conduct” does not establish a common plan or scheme. Nor can the Government transform evidence of an accused’s character or general pattern of behavior into admissible evidence merely by identifying characteristics the acts share.

There must actually be a plan.

The evidence in Menard

Menard and RH had been in a romantic relationship and continued living together after they broke up. Menard secretly installed a camera in their bedroom. The camera allowed him to watch a live feed remotely. The Government charged him with indecent viewing under Article 120c, UCMJ.

The Government also wanted the members to hear about other conduct during the relationship. The military judge admitted evidence that Menard demanded RH’s social-media passwords, reviewed messages on her phone while she slept, and accessed her social-media accounts to block male friends and former boyfriends. The judge concluded that this evidence showed, among other things, Menard’s desire and “plan or scheme to monitor RH without her consent.”

The limiting instruction ultimately mattered. Although the military judge’s written ruling had referred to motive and intent, he instructed the members that they could use the evidence only to decide whether Menard had a common scheme to commit the charged misconduct. He expressly told them not to consider it for any other purpose.

AFCCA found no error. Applying United States v. Hyppolite, 79 M.J. 161 (C.A.A.F. 2019), it identified several “commonalities”: the same parties, temporal proximity, and substantially similar invasions of privacy. From those common factors, AFCCA concluded that the evidence demonstrated an ongoing scheme to monitor RH without her knowledge.

CAAF disagreed.

The problem with “common scheme or plan”

M.R.E. 404(b)(1) prohibits evidence of another crime, wrong, or act when the reasoning is essentially: he did something like this before, therefore he probably did it again.

M.R.E. 404(b)(2) permits other-act evidence for a legitimate nonpropensity purpose, including motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. And Reynolds supplies the familiar three-part test:

1. Does the evidence reasonably support a finding that the accused committed the other act?
2. Does the evidence make a fact of consequence more or less probable?
3. Is its probative value substantially outweighed by the dangers identified in M.R.E. 403?

United States v. Reynolds, 29 M.J. 105, 109 (C.M.A. 1989). Menard resolved the case at the second step.

The difficulty is deciding when similar conduct proves a “plan” rather than merely suggesting propensity.

That question has produced two lines of CAAF precedent.

Brennan and Morrison: something more than similarity

In United States v. Brannan, 18 M.J. 181 (C.M.A. 1984), the Court rejected an attempt to characterize several drug-related acts as evidence of a common scheme. The Court explained that the other offenses had to be more than merely similar. They had to possess sufficient common features to suggest naturally that they resulted from the same plan.

That is an important distinction. A collection of acts sharing a subject matter does not necessarily establish a plan. In Brannan, marijuana was essentially the common denominator. That was insufficient.

The Court later described the standard more emphatically in United States v. Morrison, 52 M.J. 117, 122 (C.A.A.F. 1999): the uncharged acts “must be almost identical to the charged acts” to establish a common plan or scheme.

The underlying concern is easy to see. If similarity alone establishes a “plan,” M.R.E. 404(b)(2) becomes an easy route around M.R.E. 404(b)(1). The prosecutor can simply relabel propensity:

He repeatedly behaves this way; therefore this is his plan.

But that reasoning does not necessarily identify a plan at all. It may establish only a tendency to behave in a particular manner.

Hyppolite the “common factors” approach

Hyppolite moved in a different direction.

There, CAAF upheld a military judge’s determination that several sexual offenses demonstrated a common plan or scheme. The Court emphasized “common factors” among the incidents, including the accused’s relationship with the victims, alcohol use, the victims being asleep or falling asleep, and the nature of the sexual touching. Hyppolite, 79 M.J. at 165-66.

The problem is that a “common factors” test can begin to look remarkably like propensity reasoning. If enough similarities between A and B establish that A and B are part of a common plan, what distinguishes the inference from: because the accused did A, he is the sort of person who probably did B?

That concern has increasingly surfaced at CAAF.

Greene–Watson sounding the warning

Last year, United States v. Greene-Watson, 85 M.J. 340 (C.A.A.F. 2025), brought the problem into sharper focus.

The controlling opinion applied Hyppolite and rejected the contention that the acts had to be virtually identical. It treated Hyppolite’s “common factors” approach as governing the analysis.

But Judge Hardy, joined by Judge Sparks, identified the doctrinal problem. He questioned how admitting evidence to show a common scheme of violence and intimidation differed meaningfully from admitting evidence that the accused simply had a propensity to act violently toward his spouse.

Judge Hardy suggested that a true plan ordinarily implies something more: a conscious commitment to a specific premeditated course of conduct. He expressed concern that CAAF’s expansive interpretation of common plan or scheme could allow the exception to swallow M.R.E. 404(b)(1)’s prohibition against propensity evidence.

He expressly invited CAAF to reconsider the issue in a future case.

Menard looked like that case.

CAAF declines to revisit Hyppolite

Menard initially asked CAAF to return to the stricter Brannan/Morrison approach. Before oral argument, however, the defense refined its position. It argued that common factors should establish a common plan only when those factors demonstrate a “conscious commitment to a specific premeditated course of conduct.”

That argument drew from federal authority and commentary and closely tracked Judge Hardy’s concern in Greene-Watson.

CAAF declined the invitation.

Importantly, though, the Court did not reject the defense’s proposed standard on its merits. It concluded that it did not need to decide the question because the evidence was inadmissible even under CAAF’s existing jurisprudence:

“[T]he military judge erred by admitting the M.R.E. 404(b) evidence because that evidence failed to prove that any plan or scheme existed.”

That may be the most important sentence in the opinion.

Common factors cannot substitute for the plan

CAAF returned to the second Reynolds question: what fact of consequence does this evidence make more or less probable?

The charged offense required proof that Menard knowingly and wrongfully viewed RH’s private area without her consent and under circumstances in which she had a reasonable expectation of privacy.

The uncharged evidence showed jealous and controlling behavior. But CAAF concluded that those acts did not make an element of the charged offense more or less probable. Thus, to be admissible for the sole purpose authorized by the instructions, the evidence actually had to establish the alleged scheme to monitor RH.

It did not.

CAAF found “no evidence that Appellant had a plan or scheme to monitor RH.” None of the admitted uncharged acts involved Menard secretly viewing RH or another person without consent.

That analysis places an important limitation on Hyppolite.

The inquiry cannot end by identifying “common factors.” The common factors must prove something relevant. When the asserted nonpropensity purpose is “plan,” they must support the existence of the plan itself.

Otherwise, the reasoning risks becoming:

Menard previously acted jealously and intrusively toward RH.

Therefore, Menard had a plan to monitor RH.

Therefore, Menard probably committed this intrusive act against RH.

The middle proposition cannot simply serve as a label disguising the propensity inference prohibited by M.R.E. 404(b)(1).

The Government’s pivot

The oral argument apparently demonstrated the problem.

When CAAF pressed the Government to explain how the uncharged acts established a common plan or scheme, the Government shifted to motive. Menard’s jealousy and desire to prevent RH from seeing other men, the Government argued, supplied a motive for the charged viewing.

That may have been a legitimate M.R.E. 404(b)(2) theory. Indeed, the military judge’s original ruling identified motive.

But that was not what the members had been permitted to do with the evidence.

The military judge expressly instructed them that they could consider the evidence only to prove a common scheme and “may not consider this evidence for any other purpose.” CAAF therefore refused to uphold admission on a motive theory never given to the members.

That portion of Menard deserves attention in future 404(b) litigation. M.R.E. 404(b)(2)’s list of permissible purposes is not a collection of interchangeable labels. The Government must identify the actual inferential chain connecting the other act to a fact of consequence, and the military judge’s limiting instruction matters.

And “context” does not solve the problem

The majority also rejected another familiar justification: “context.”

The military judge had reasoned that excluding the evidence would deprive the members of critical context concerning Menard’s motivations and intent.

The majority responded that “context is not an approved non-propensity reason” for admitting otherwise inadmissible evidence under M.R.E. 404(b)(2).

Judge Ohlson disputed that proposition in his separate opinion. He noted that the purposes listed in Rule 404(b)(2) are illustrative rather than exhaustive and cited federal decisions recognizing context as a permissible nonpropensity use of other-act evidence.

That disagreement may become important in another case.

The disagreement remains

Menard did not settle the broader doctrinal dispute.

Judge Ohlson thought the military judge acted within his discretion. In his view, secretly searching RH’s phone while she slept could reasonably constitute monitoring and an invasion of privacy. The charged and uncharged acts involved the same victim, location, and purpose.

Judge Johnson likewise concluded that the common factors established a scheme. She characterized the evidence as a pattern of technology-assisted monitoring designed to control RH’s interactions with other men.

The division is revealing. The judges were looking at essentially the same facts but disagreed over whether those facts established a “plan” or merely described related behavior.

That is precisely the difficulty Judge Hardy identified in Greene-Watson.

What does Menard mean going forward

Menard leaves Hyppolite standing. The “common factors” standard therefore remains part of CAAF’s common-plan jurisprudence. The Court expressly declined to adopt the proposed requirement that the acts demonstrate a conscious commitment to a specific premeditated course of conduct.

But Menard also demonstrates that Hyppolite has limits.

It is not enough to collect similarities and announce a common scheme. A military judge applying Reynolds must still identify the fact of consequence and explain how the other-act evidence makes that fact more or less probable. When the asserted purpose is common plan or scheme, the evidence must actually support the existence of that plan or scheme.

Perhaps the simplest question is the best one:

What, exactly, is the plan?

If the answer merely describes the accused’s character, disposition, relationship dynamics, or tendency to behave badly in similar circumstances, the supposed “plan” may be nothing more than propensity evidence wearing a M.R.E. 404(b)(2) label.

Menard does not resolve the tension between Brannan/Morrison and Hyppolite. But it puts some teeth back into the second Reynolds prong and provides trial judges with a reason to look beyond the Government’s chosen label.

Similarity may be evidence from which a plan can be inferred.

Similarity is not itself the plan.

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