TRIAL STAGES: Appeals: Waiver

2013 (September Term)

United States v. Elespuru, 73 M.J. 326 (a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case).    

(in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact). 

United States v. Lee, 73 M.J. 166 (a plea of guilty waives nonjurisdictional errors that occurred in the earlier stages of the trial proceedings; RCM 910(a)(2) does create an exception where an accused enters into a conditional guilty plea; however, because there is no constitutional right to enter such a plea, it follows that compliance with the regulation is the sole means of entering a conditional plea and preserving the issue on appeal). 

(while the waiver doctrine, by which a guilty plea waives nonjurisdictional errors that occurred in earlier stages of the trial proceedings, is not without limits, those limits are narrow and relate to situations in which, on their face, the prosecution may not constitutionally be maintained; such limits do not arise where an appellant merely complains of antecedent constitutional violations or a deprivation of constitutional rights that occurred prior to the entry of the guilty plea; rather they apply where on the face of the record the court had no power to enter the conviction or impose the sentence). 

(where an Article 10, UCMJ, speedy trial motion is litigated at trial, that issue is preserved for appeal despite an unconditional guilty plea; this narrow exception is based on the unique nature of the protections set forth in Article 10). 

(in this case, appellant’s unconditional guilty pleas on rehearing waived review of any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from any additional time spent on a state public sex offender registry prior to the waiver; appellant’s guilty pleas occurred immediately after a motion for relief for the same post-trial appellate delay was fully briefed, argued, and denied, and appellant did not claim that the court-martial lacked jurisdiction over the offenses, did not litigate a motion under Article 10, UCMJ, did not challenge the voluntary and intelligent character of his pleas, and did not in any other way attempt to preserve the appellate delay issue for appeal).    

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (in this case, where appellant failed to object at trial to Article 134, UCMJ, specifications on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the error; moreover, appellant’s failure to raise the issue at his sentence rehearing, which was held two months after the decision in Fosler, did not constitute waiver because a defense motion to dismiss the findings for failure to allege the terminal element was beyond the military judge’s proscribed authority to conduct a rehearing on sentence). 

United States v. Goings, 72 M.J. 202 (where appellant failed to object at trial that the offense of indecent acts with another, as proscribed under Article 134, UCMJ, was unconstitutional as applied to him, but on appeal alleges constitutional error, in light of (1) the presumption against the waiver of constitutional rights, and (2) the requirement that a waiver clearly establish an intentional relinquishment of a known right or privilege, the alleged error will be considered forfeited, not waived, and it will be reviewed by an appellate court for plain error; under plain error review, the court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused). 

(in this case, where appellant failed to object at trial to an Article 134, UCMJ, specification on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the underlying constitutional right to notice, and on appeal, plain error analysis must be applied). 

United States v. Vazquez, 72 M.J. 13 (there is a presumption against waiver of the fullest expression of rights under the Confrontation Clause). 

2011 (September Term)

United States v. Stanley, 71 M.J. 60 (waiver does not apply to required instructions such as affirmative defenses). 

United States v. Campbell, 71 M.J. 19 (defense counsel’s request for merger of the charges based on unreasonable multiplication before the trial and again after the findings were returned preserved his claim on appeal regarding dismissal of any unreasonably multiplied offenses). 

2010 (September Term)

United States v. Sweeney, 70 M.J. 296 (whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; to determine whether a failure to object was waiver or mere forfeiture, an appellate court looks to the state of the law at the time of trial, and it will not find waiver where subsequent case law opened the door for a colorable assertion of the right to confrontation where it was not previously available). 

(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused; where the alleged error is constitutional, the prejudice prong is fulfilled where the government cannot show that the error was harmless beyond a reasonable doubt). 

United States v. Eslinger, 70 M.J. 193 (failure to object to the admission of evidence at trial forfeits appellate review of the issue absent plain error). 

(any additional claimed infirmity based on lack of personal knowledge regarding the testimony in sentencing of appellant’s group command sergeant major that appellant should not be retained in the armed forces was affirmatively waived and was not subject to plain error review, where defense counsel only objected that the testimony was cumulative and did not object that the testimony lacked a proper foundation). 

United States v. McMurrin, 70 M.J. 15 (where the accused failed to object to military judge’s consideration of negligent homicide as a LIO to involuntary manslaughter, his failure to object forfeited, rather than waived, any error).

United States v. Girouard, 70 M.J. 5 (deviation from a legal rule is error unless the rule has been waived). 

 (waiver is the intentional relinquishment or abandonment of a known right). 

 

(whether a particular right is waivable, whether the defendant must participate personally in the waiver, whether certain procedures are required for waiver, and whether the accused’s choice must be particularly informed or voluntary, all depend on the right at stake). 

 

(there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege). 

 

(charged with premeditated murder, appellant did not waive the error arising when the military judge erroneously instructed on negligent homicide as an LIO, even though he had requested that instruction and even though at the time of trial, negligent homicide was considered an LIO of murder, where the instruction violated appellant’s due process right not to be convicted of a crime that was not an LIO of the offense with which he was charged, and where defense counsel’s trial strategy could not be considered an intentional relinquishment or abandonment of a known right when this LIO issue had not been decided until after trial).   


United States v. Daly, 69 M.J. 485 (a question of jurisdiction is not subject to waiver and may be raised at any time). 


United States v. Gooch, 69 M.J. 353 (an appellant cannot waive a claim of ineffective assistance of counsel where waiver is based on the very advice he asserts was ineffective). 


United States v. Pope, 69 M.J. 328 (failure to object to an instruction given or omitted waives the objection absent plain error). 


United States v. Jones, 69 M.J. 294 (an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offenses to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case). 

 

(an unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law). 

 

(appellant’s unconditional guilty plea to receiving child pornography waived any issues related to the military judge’s denial of his pretrial and mid-providence requests to view the child pornography, where the denial neither implicated due process rights nor resulted in the loss of appellant’s pretrial agreement). 


2009 (September Term)


United States v. Craig, 68 M.J. 399 (an unconditional guilty plea waives multiplicity claims when the offenses are not facially duplicative). 

 

(appellant’s unconditional guilty pleas waived the issue of whether the specifications charging appellant with receipt and possession of the same child pornography were multiplicious, where the specifications were not facially duplicative because appellant received the files of the images on one medium and stored them on another). 

United States v. Douglas, 68 M.J. 349 (the CAAF has not applied the doctrine of waiver where unlawful command influence is at issue).

United States v. Bradley, 68 M.J. 279 (an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings).

 

(RCM 910(j) provides that a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense to which the plea was made). 

 

(RCM 910(a)(2) provides for conditional guilty pleas as an exception to the general waiver rule; a conditional guilty plea is a creature of statute or regulation; there is no constitutional right to enter such a plea; this being the case, it follows that compliance with the regulation is the sole means of entering a conditional plea and preserving the issue on appeal; such a plea cannot be implied; the military judge and the government each have complete discretion whether to permit or consent to a conditional guilty plea). 

 

(in this case, the CCA erred in concluding that there was a de facto conditional guilty plea, where the CCA determined that the military judge’s ambiguous advisement with regard to waiver and the civilian defense counsel’s belief that the issue was preserved for appellate review were material factors in the accused’s decision to plead guilty and that, accordingly, the accused was entitled to appellate review  of his motion to dismiss; such a plea cannot be implied; it can only be manifested by compliance with the conditional guilty plea rule of RCM 910(a)(2)). 

 

(the accused’s unconditional guilty plea waived his ability to appeal the military judge’s denial of his motion to disqualify trial counsel based on that counsel having served as a witness in a pretrial motion hearing, as well as a motion to dismiss based on the government’s alleged derivative use of his immunized statements and testimony; the record was clear that neither the government nor the military judge consented to a conditional plea as required by RCM 910(a)(2)). 

 

(while the waiver doctrine, under which an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings, is not without limits, those limits are narrow and relate to situations in which, on its face, the prosecution may not constitutionally be maintained; this case is not such a situation, and the waiver doctrine therefore applies). 

 

(a guilty plea will not be rejected as improvident unless there is a substantial basis in law or fact for doing so).

 

(the accused’s unconditional guilty plea, resulting in waiver of his ability to appeal the military judge’s denial of his motion to disqualify trial counsel and his motion to dismiss, was not improvident, even if the accused thought the disqualification issue would be preserved, where the accused was represented by experienced civilian defense counsel, the accused explicitly entered an unconditional plea of guilty, and there is no allegation of ineffective assistance of counsel, or that the accused (who was getting the benefits of a quite favorable pretrial agreement) did not understand what he was doing). United States v. Bradley, 68 M.J. 279 (an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings).

 

(RCM 910(j) provides that a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense to which the plea was made). 

 

(RCM 910(a)(2) provides for conditional guilty pleas as an exception to the general waiver rule; a conditional guilty plea is a creature of statute or regulation; there is no constitutional right to enter such a plea; this being the case, it follows that compliance with the regulation is the sole means of entering a conditional plea and preserving the issue on appeal; such a plea cannot be implied; the military judge and the government each have complete discretion whether to permit or consent to a conditional guilty plea). 

 

(in this case, the CCA erred in concluding that there was a de facto conditional guilty plea, where the CCA determined that the military judge’s ambiguous advisement with regard to waiver and the civilian defense counsel’s belief that the issue was preserved for appellate review were material factors in the accused’s decision to plead guilty and that, accordingly, the accused was entitled to appellate review  of his motion to dismiss; such a plea cannot be implied; it can only be manifested by compliance with the conditional guilty plea rule of RCM 910(a)(2)). 

 

(the accused’s unconditional guilty plea waived his ability to appeal the military judge’s denial of his motion to disqualify trial counsel based on that counsel having served as a witness in a pretrial motion hearing, as well as a motion to dismiss based on the government’s alleged derivative use of his immunized statements and testimony; the record was clear that neither the government nor the military judge consented to a conditional plea as required by RCM 910(a)(2)). 

 

(while the waiver doctrine, under which an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings, is not without limits, those limits are narrow and relate to situations in which, on their face, the prosecution may not constitutionally be maintained; this case is not such a situation, and the waiver doctrine therefore applies). 

 

(a guilty plea will not be rejected as improvident unless there is a substantial basis in law or fact for doing so).

 

(the accused’s unconditional guilty plea, resulting in waiver of his ability to appeal the military judge’s denial of his motion to disqualify trial counsel and his motion to dismiss, was not improvident, even if the accused thought the disqualification issue would be preserved, where the accused was represented by experienced civilian defense counsel, the accused explicitly entered an unconditional plea of guilty, and there is no allegation of ineffective assistance of counsel, or that the accused (who was getting the benefits of a quite favorable pretrial agreement) did not understand what he was doing).

 

(an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings).

 

(RCM 910(j) provides that a plea of guilty which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense to which the plea was made). 

 

(RCM 910(a)(2) provides for conditional guilty pleas as an exception to the general waiver rule; a conditional guilty plea is a creature of statute or regulation; there is no constitutional right to enter such a plea; this being the case, it follows that compliance with the regulation is the sole means of entering a conditional plea and preserving the issue on appeal; such a plea cannot be implied; the military judge and the government each have complete discretion whether to permit or consent to a conditional guilty plea). 

 

(in this case, the CCA erred in concluding that there was a de facto conditional guilty plea, where the CCA determined that the military judge’s ambiguous advisement with regard to waiver and the civilian defense counsel’s belief that the issue was preserved for appellate review were material factors in the accused’s decision to plead guilty and that, accordingly, the accused was entitled to appellate review  of his motion to dismiss; such a plea cannot be implied; it can only be manifested by compliance with the conditional guilty plea rule of RCM 910(a)(2)). 

 

(the accused’s unconditional guilty plea waived his ability to appeal the military judge’s denial of his motion to disqualify trial counsel based on that counsel having served as a witness in a pretrial motion hearing, as well as a motion to dismiss based on the government’s alleged derivative use of his immunized statements and testimony; the record was clear that neither the government nor the military judge consented to a conditional plea as required by RCM 910(a)(2)). 

 

(while the waiver doctrine, under which an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings, is not without limits, those limits are narrow and relate to situations in which, on its face, the prosecution may not constitutionally be maintained; this case is not such a situation, and the waiver doctrine therefore applies). 

 

(a guilty plea will not be rejected as improvident unless there is a substantial basis in law or fact for doing so).

 

(the accused’s unconditional guilty plea, resulting in waiver of his ability to appeal the military judge’s denial of his motion to disqualify trial counsel and his motion to dismiss, was not improvident, even if the accused thought the disqualification issue would be preserved, where the accused was represented by experienced civilian defense counsel, the accused explicitly entered an unconditional plea of guilty, and there is no allegation of ineffective assistance of counsel, or that the accused (who was getting the benefits of a quite favorable pretrial agreement) did not understand what he was doing). 


United States v. Campbell, 68 M.J. 217 (where appellant pled guilty unconditionally to three specifications of possessing child pornography and the specifications were not facially duplicative, he waived his ability to contest whether he should have been charged with only one specification of possessing child pornography).
 
 

2008 (September Term)


United States v. Schweitzer, 68 M.J. 133 (RCM 910(j) provides a bright-line rule - an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offense to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case).

 

(an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law; nevertheless, on occasion, an unconditional guilty plea by itself does not waive an objection on appeal to a nonfactual issue, such as multiplicity, speedy trial under Article 10, UCMJ, and the defect of a specification that fails to state an offense). 


(appellant’s unconditional guilty pleas to conduct unbecoming an officer waived his objection on appeal that the officer acting as the convening authority in his case was also an accuser; because the officer was authorized under Article 22(a), UCMJ, to convene appellant’s court-martial, any error was nonjurisdictional, and at trial, appellant explicitly acknowledged understanding that his guilty pleas waived on appeal the objection to the convening authority being an accuser). 


United States v. Marshall, 67 M.J. 418 (forfeiture and waiver, although frequently conflated, are not the same). 


(the purpose of the forfeiture rule is to ensure that the trial judge has the opportunity to rule on issues arising at trial, and to prevent the raising of such issues for the first time on appeal, after any chance to correct them has vanished).  


United States v. Campos, 67 M.J. 330 (a forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law; while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal; in determining whether a particular circumstance constitutes a waiver or a forfeiture, an appellate court considers whether the failure to raise the objection at the trial level constituted an intentional relinquishment of a known right). 

 

(in this case, appellant, who as part of a negotiated pretrial agreement, entered into a stipulation of expected testimony of a psychologist who had expertise in evaluating and treating sexual offenders, waived any right to claim error on the ground that the witness did not personally appear to present live testimony at sentencing in a child pornography prosecution, where the stipulation amounted to an agreement between appellant, defense counsel, and trial counsel that if the witness were called to testify, he would testify under oath as reflected in the document, the military judge provided appellant with a detailed explanation of the stipulation, appellant agreed to the “use of” the stipulation, and defense counsel represented that he desired to enter into the stipulation). 

 

(after appellant in a child pornography prosecution entered into a stipulation of expected testimony of a psychologist who had expertise in evaluating and treating sexual offenders, defense counsel waived the issue of admissibility of the substance of the stipulation at sentencing by answering “no” when the military judge asked for objections; although the stipulation did not expressly consent to the admission of the witness’s testimony, defense counsel had advance notice of the substance of the testimony, reviewed the expected testimony, and considered the impact of the stipulation on appellant’s case). 


United States v. Gladue, 67 M.J. 311 (waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; the distinction between the terms is important; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews it for plain error; when, on the other hand, an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal). 

 

(a criminal defendant may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution; that includes double jeopardy, the basis of the multiplicity objection).

 

(in the absence of an explicit prohibition, a party may knowingly and voluntarily waive such a nonconstitutional right in a pretrial agreement).


(although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them). 

 

(appellant’s pretrial agreement expressly waiving any waivable motions waived claims of multiplicity and unreasonable multiplication of charges, and extinguished his right to raise these issues on appeal). 


2008 (Transition)

 

United States v. Harcrow, 66 M.J. 154 (in addressing waiver of constitutional rights, the Supreme Court long ago emphasized that there is a presumption against the waiver of constitutional rights, and for a waiver to be effective, it must be clearly established that there was an intentional relinquishment or abandonment of a known right or privilege; yet the Supreme Court has also acknowledged that counsel may, under some conditions, where the circumstances are not exceptional, preclude the accused from asserting constitutional claims; that is to say, in certain circumstances, defense counsel may waive constitutional rights on behalf of their clients). 

 

2007


United States v. Crafter, 64 M.J. 209 (failure to object does not waive the issue of a specification’s legal sufficiency). 

 

2006

 

United States v. Finch, 64 M.J. 118 (failure to object at trial to exceptions and substitutions made at findings constitutes waiver of that issue in the absence of plain error). 

 

United States v. Haney, 64 M.J. 101 (failure to object to improper argument before the military judge begins to instruct the members on findings constitutes waiver in the absence of plain error). 

 

United States v. Washington, 63 M.J. 418 (where appellant did not object to the failure of trial counsel to place a witness under oath, appellant waived the issue absent plain error; in this context, the rationale for applying waiver is twofold: first, the defect or failure could have been corrected if a timely objection had been made; second, in the absence of a waiver rule, counsel might deliberately avoid objecting to a witness being unsworn in order to have a ground of appeal). 

 

United States v. Miller, 62 M.J. 471 (Congress has provided a narrow window in which an accused may waive appellate review in non-capital cases; under Article 61(a), UCMJ, such a waiver must be signed by the accused and defense counsel and must be filed within 10 days after the action on the sentence is served on the accused or on defense counsel; the convening authority or other person taking such action may extend the period for such filing by not more than 30 days; because a waiver may not be filed prior to the convening authority’s action, a premature filing is invalid, and appellate review will proceed).  

 

(if the accused has waived review by the CCA, the convening authority must refer the case for review by a judge advocate under Article 64, UCMJ, and RCM 1112; in specified circumstances, including a case in which a punitive discharge has been adjudged, the case is then submitted for further action by an officer exercising general court-martial authority under Article 64(b) and RCM 1112(e); such cases also may be reviewed by the Office of the Judge Advocate General under Article 69(b), UCMJ). 

 

(if review by the CCA has not been waived, the accused may withdraw an appeal at any time in a non-capital case; the discretion to grant or deny a motion to withdraw an appeal is vested in the appellate courts). 

 

(the preferred method of demonstrating a provident waiver is a document signed after the convening authority’s action, but a document signed beforehand may be used so long as the record demonstrates a serious, rational, and informed discussion between the accused and defense counsel after the convening authority’s action, but before the filing of the waiver). 

 

(the text of Article 61 does not preclude signing a waiver at any time so long as there is a provident waiver decision after the convening authority’s action; because this conclusion is based on the text of Article 61, it would be the same even if the President had not expressly authorized an early signing under RCM 1110(f)).    

 

United States v. Wolford, 62 M.J. 418 (even though defense counsel did not object to the military judge’s instructions at the time of trial, waiver must be established by affirmative action of the accused’s counsel, and not by a mere failure to object to erroneous instructions; where there is no affirmative waiver, an appellate court reviews instructional claims de novo). 

 

United States v. Bungert, 62 M.J. 346 (a claim of error that is not raised at trial is waived unless it rises to the level of plain error).   

 

United States v. Capers, 62 M.J. 268 (if defense counsel does not make a timely comment on an error or omission in the SJA’s post-trial recommendation, the error is waived unless it is prejudicial under a plain error analysis). 

 

2005

 

United States v. Scalo, 60 M.J. 435 (if defense counsel does not make a timely comment on an omission in the SJA’s recommendation, the error is waived unless it is prejudicial under a plain error analysis).

 

United States v. Alexander, 61 M.J. 266 (questions of jurisdiction are not subject to waiver; jurisdiction over the person, as well as jurisdiction over the subject matter, may not be the subject of waiver; a jurisdictional defect goes to the underlying authority of a court to hear a case; thus, a jurisdictional error impacts the validity of the entire trial and mandates reversal). 

 

2004

 

United States v. Pauling, 60 MJ 91 (an unconditional guilty plea waives a multiplicity issue unless the offenses are facially duplicative, that is, factually the same).

 

2003

United States v. Gudmundson, 57 MJ 493 (if an appellant is aware of the convening authority's involvement in a case, but chooses to not raise a disqualification issue at trial or in a post-trial submission to the convening authority, the issue is waived).

United States v. King, 58 M.J. 110 (in the future, failure at trial to seek Mason credit for pretrial restriction tantamount to confinement will constitute waiver of that issue in the absence of plain error; the purpose of the so-called raise-or-waive rule is to promote the efficiency of the entire justice system by requiring the parties to advance their claims at trial, where the underlying facts can best be determined.).

(once this opinion becomes final, failure at trial to seek Mason credit for conditions of restriction alleged to be tantamount to confinement waives that issue on appeal in the absence of plain error.).

United States v. Miller, 58 MJ 266 (although appellant did not object to the instructions as given, waiver is inapplicable; we have held that R.C.M. 920(f)’s waiver rule is inapplicable to certain mandatory instructions such as reasonable doubt, the elements of the offenses, and affirmative defenses; similarly, we hold that R.C.M. 1005(f)’s rule of waiver does not serve to forfeit review of this issue; the military judge bears the primary responsibility for ensuring that mandatory instructions, including the pretrial confinement instruction mandated by the President in R.C.M. 1005(e) and by this Court’s decision in United States v. Davidson, 14 M.J. 81 (C.M.A. 1982), are given and given accurately).

United States v. Inong, 58 MJ 460 (in United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we will not invoke waiver of alleged Article 13 violations unless there is an affirmative, fully developed waiver on the record; today, however, the Court concludes Huffman’s affirmative waiver rule is unworkable; as a result, the Court now overrules Huffman and begins followings the "raise or waive" rule required by the Manual for Courts-Martial, United States, as relates to assertions of illegal pretrial confinement and punishment; in so doing, the Court also overrules United States v. Southwick, 53 M.J. 412 (C.A.A.F. 2000), and United States v. Tanksley, 54 M.J. 169 (C.A.A.F. 2000), to the extent they establish a "tantamount to affirmative waiver" rule in the Article 13 arena; the Court therefore holds that once this opinion becomes final, failure at trial to seek sentence relief for violations of Article 13 waives that issue on appeal absent plain error; having said that, however, the Court urges all military judges to remember that nothing precludes them from inquiring sua sponte into whether Article 13 violations have occurred, and prudence may very well dictate that they should).

(the purpose of the MCM’s "raise or waive" rule is to promote the efficiency of the entire justice system by requiring the parties to advance their claims at trial, where the underlying facts can best be determined; this rule is especially important in the military justice system because of the turnover of personnel and changing conditions at military confinement facilities; the rationale behind waiver is to eliminate the expense to the parties and the public of rehearing an issue that could have been dealt with by a timely objection or motion at trial by the one party best positioned to make that happen – the party in need of relief; this principle is essential to the continued effectiveness of our heavily burdened trial and appellate judicial systems).

United States v. Wellington, 58 MJ 420 (where the SJAR is served on the defense counsel and accused in accordance with RCM 1106(f)(1), and the defense fails to comment on any matter in the recommendation, RCM 1106(f)(6) provides that any error is waived unless it rises to the level of plain error).

United States v. Simpson, 58 MJ 368 (the military judge provided instructions on the pertinent elements, and the issue before us is whether the military judge erred by not providing greater specificity or amplification; any such deficiency is waived by defense counsel's failure to object unless the instructions were so incomplete as to constitute plain error).

2002

United States v. Quintanilla, 56 MJ 37 (of all the grounds for disqualification in RCM 902, only the appearance of bias may be waived, RCM 902(a), after full disclosure of the basis on the record. RCM 902(e)).

(because the military judge did not ensure that the record reflected a full disclosure as required by RCM 902(e), court found it inappropriate to conclude on the present state of the record that the defense counsel waived the appearance of bias disqualification in this case – specifically, the record was deficient in the following respects: (1) the military judge never disclosed an ex parte conversation with trial counsel about the timing of a witness’s testimony; (2) the military judge failed to provide a complete description of his out-of-court confrontations with a witness; (3) what description there is was not coherent and made it difficult to determine precisely what happened during the confrontations; and (4) the judge put the witness on the stand and questioned him in a manner that minimized the disclosure of information about the events).

United States v. Butcher, 56 MJ 87 (Court of Criminal Appeals determined that appellant forfeited issue of unreasonable multiplication of charges by not raising it at trial, and Court of Appeals for the Armed Forces was not shown any specific circumstances that would lead it to conclude that lower court abused its considerable discretion).

United States v. Barner, 56 MJ 131 (claims that offenses should be consolidated are forfeited by failure to make a timely motion to dismiss, but an appellant may overcome forfeiture by showing that the specifications are facially duplicative, a determination which is made on the basis of the language of the specifications and the facts apparent on the face of the record).

United States v. Bracey, No. 01-0408, 56 MJ 387 (if appellant wanted to introduce facts and obtain a ruling that the NJP and the court-martial conviction were for the same offense, the time to do so was at trial, not on appeal).

United States v. Simpson, 56 MJ 462 (failure to object to an instruction prior to commencement of deliberations waives the objection in the absence of plain error).

(to ensure that the answers given may only be used for impeachment purposes, the defense must request a specific instruction under Mil.R.Evid. 105; the failure to request such an instruction constitutes a waiver absent plain error).

United States v. Chapa, 57 MJ 140 (any issue regarding failure to conduct the 48-hour review of pretrial confinement is waived by failure to specifically raise the issue at trial, and an asserted violation of one provision of RCM 305 is not sufficient to preserve the issue whether another provision was violated).

(any issue founded on noncompliance with RCM 305 was waived where: (1) appellant did not assert that his restriction was tantamount to confinement, nor did he assert any violations of RCM 305; (2) the defense request for relief focused solely on Article 13; (3) defense counsel’s question about the commander’s review of his decision to seize appellant’s personal property was insufficient to raise and preserve the issue because it addressed only the seizure of appellant’s property and not the restraints on his liberty, and because it was too general to alert the military judge or the Government to a complaint that formal review processes were not followed; (4) defense counsel had the opportunity to ask the commander whether the conditions on appellant’s liberty were reviewed in accordance with RCM 305(h) and (i), or to present other evidence of noncompliance, but he did not avail himself of that opportunity).

2001

United States v. Palmer, 55 MJ 205 (if evidence is excluded at trial because it is inadmissible for the purpose articulated by its proponent, the proponent cannot challenge the ruling on appeal on the ground that the evidence could have been admitted for another purpose).

United States v. Quiroz, 55 MJ 334 (Court of Criminal Appeals was well within its authority under Article 66(c), UCMJ, to determine the circumstances, if any, under which it would apply waiver or forfeiture to a claim of unreasonable multiplication of charges; Court of Criminal Appeals did not exceed its authority in concluding that it had authority to consider all claims of unreasonable multiplication of charges, even if raised for the first time on appeal, and to consider waiver only if an accused affirmatively, knowingly, and voluntarily relinquishes the issue at trial).

2000

United States v. Heryford, 52 MJ 265 (ordinarily, an unconditional guilty plea waives a multiplicity issue).

(double jeopardy claims, including those founded in multiplicity, are waived by failure to make a timely motion to dismiss, unless they rise to the level of plain error).

United States v. Ramsey, 52 MJ 322 (where specifications alleging solicitation to distribute LSD and conspiracy to distribute LSD are not facially  duplicative, any issue of multiplicity was waived by failure to make a timely motion to dismiss and an unconditional guilty plea).

United States v. Avery, 52 MJ 496 (waiver of fundamental constitutional rights must be knowingly and intelligently rendered; courts indulge every reasonable presumption against such waiver and do not presume acquiescence in relinquishment of these rights; waiver of fundamental rights must be an affirmative action, not merely a failure to object).

(defense affirmatively waived any objection to government’s nondisclosure of report of victim’s prior rape allegation where:  (1) defense made no motion for continuance; (2) defense made no motion to compel discovery; (3) defense counsel affirmatively stated at trial that the defense did not intend to go into the matter of the prior rape complaint; and, (4), after receiving the report after trial, defense did not raise the issue at a post-trial Article 39(a) session).

United States v. Grier, 53 MJ 30 (failure to object to an instruction before the panel begins deliberation is waiver of the objection in the absence of plain error).

United States v. Henry, 53 MJ 108 (requirement that record of trial be complete and substantially verbatim in order to support a sentence that includes a punitive discharge or confinement in excess of 6 months is of jurisdictional proportion and cannot be waived).

United States v. Guthrie, 53 MJ 103 (absent plain error, failure to object to instructions as given or to request additional instructions forfeits the issue on appeal).

United States v. Davis, 53 MJ 202 (RCM 902(f)’s waiver rule applies only to the instructions listed in RCM 920(e)(7), but does not apply to required instructions such as those on reasonable doubt, elements of the offense, and affirmative defenses).

United States v. Tittel, 53 MJ 313 (assuming that officer who gave order which the accused disobeyed was personally involved to the extent that he became an accuser, failure to forward the charges to the next higher level of command for disposition was nonjurisdictional error which was waived by appellant’s failure to raise the issue at trial).

United States v. Fricke, 53 MJ 149 (absent affirmative waiver of issue of unlawful pretrial punishment at trial, violations of Article 13, UCMJ, have been considered for the first time on appeal).

United States v. Southwick, 53 MJ 412 (pretrial punishment is not waived by failure to raise the issue at trial unless there is an affirmative, fully developed waiver on the record).

(appellant’s tactical decision to present information about pretrial punishment to the sentencing authority and the convening authority rather than moving for appropriate relief under RCM 906 was tantamount to an affirmative waiver in this case, because appellant made an election between two available alternatives).

United States v. Jenkins, 54 MJ 12 (failure to object to improper argument before the military judge begins to instruct on sentencing constitutes waiver of the objection; to overcome waiver, an appellant must demonstrate plain error – he must show there was error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights).

United States v. Scalarone, 54 MJ 114 (United States v. Huffman, 40 MJ 225 (CMA 1994), providing that an issue of illegal pretrial confinement not raised at trial may be raised for the first time on appeal, was not shown to be either unworkable or badly reasoned, and therefore would not be overruled).

(failure to request sentence credit for unlawful pretrial punishment or illegal pretrial confinement at trial does not forfeit such a claim in the absence of plain error or waive such a claim forever).

United States v. Tanksley, 54 MJ 169 (appellant’s tactical decision to take issue of conditions of pretrial confinement amounting to pretrial punishment to the members during sentencing rather than asking the military judge for appropriate relief was tantamount to a waiver of this issue).
 
United States v. Browning, 54 MJ 1 (failure to object to clarifying instructions on vicarious liability, given after appellant objected to initial instruction, waived any defect in the instructions in the absence of plain error).

(where military judge makes a preliminary ruling excluding evidence, but invites counsel to renew the request for the evidence at a later time, failure to renew the request at the proper time waives the issue in the absence of plain error).

(where defense sought to introduce evidence allegedly showing that appellant was framed by another individual, and where military judge made a preliminary ruling excluding evidence, but invited counsel to renew the request for the evidence at a later time, appellant did not preserve the issue by requesting the judge to reconsider the preliminary ruling; if, however, the issue was preserved, appellant failed to show how military judge abused his discretion in excluding the evidence where:  (1) evidence was of minimal relevance; (2) defense failed to establish a link between the evidence in issue and a co-actor’s alleged scheme to frame appellant; and (3) proffered testimony fell short of supporting the defense theory that appellant had been framed).

United States v. Ruiz, 54 MJ 138 (objections to questions asked on cross-examination must be made at the time that they are asked).

(failure to make timely objection to matters raised in argument will waive any issue on appeal with respect thereto in the absence of plain error).

1999

United States v. Reist, 50 MJ 108 (any issue as to whether trial counsel is so determined to convict and punish an accused that he became an “accuser” is waived by that accused’s failure to raise the issue at trial).

(failure to object to improper argument constitutes waiver of the objection).

United States v. McClain, 50 MJ 483 (where apparent conflict arose because of a difference of opinion at to strategy, the totality of the circumstances indicated that appellant waived any conflict of interests where:  (1) appellant confirmed that he wanted counsel to continue with his case; (2) appellant indicated that he believed counsel had his best interests at heart; (3) appellant acknowledge that his criticism of counsel was due to agitation; (4) the military judge correctly advised appellant regarding the options he had as to pleading, the forum, whether to accept a pretrial agreement, and whether to testify; and (5) appellant apologized for his wrongful accusations against counsel during his unsworn statement).

United States v. Smith, 50 MJ 451 (failure to object to an instruction or the omission of an instruction before the members close to deliberate constitutes a waiver of that objection absent plain error; waiver, however, must be established by affirmative action of counsel and not merely by failure to object to erroneous instructions or to request proper instructions).

(counsel’s statements were adequate to show purposeful decision to agree to military judge’s decision not to instruct on lesser-included offenses, and thus there was affirmative action by counsel to establish waiver of any objection, where:  (1) counsel expressed that proposed instruction was close to what he desires; (2) counsel expressed agreement that instruction might confuse the members; (3) counsel did not object during Article 39(a) session; and (4) counsel did not object at close of instructions).

(counsel waived any defect in instructions concerning proper use of appellant’s guilty plea with respect to contested charges where:  (1) defense counsel indicated he wanted elements of offense to which accused pleaded guilty included in instructions; (2) defense counsel indicated that his strategy required that the members know precisely what elements were admitted by the guilty plea; (3) counsel expressed that proposed instruction was close to what he desires; (4) counsel expressed agreement that instruction about offenses normally being lesser-included offenses might confuse the members; and (5), despite plentiful opportunity, counsel made no objections).

United States v. Eggen, 51 MJ 159 (failure to object to testimony of expert on the basis that expert had exceeded the area of his expertise waived that issue for appeal).

United States v. Richter, 51 MJ 213 (claim of unlawful command influence in the preferral of charges was waived where appellant did not raise the issue at trial, any necessary evidence was available prior to trial, and appellant was not deterred from raising the issue at trial; defects in the preferral of charges are waived if not raised at trial, unless the failure to raise the issue is itself the result of unlawful command influence).

United States v. Scott, 51 MJ 326 (appellant’s failure to object to expert’s testimony which was based in part on a psychiatric report of an examination done on appellant forfeited any objection, absent plain error; factors apparently considered by the Court in determining that objection was forfeited included:  (1) no trial objection to the use of any psychiatric evaluations; (2) no trial objection based on privilege, involuntariness, or any other Fifth or Sixth Amendment grounds; (3) only defense objection at trial was lack of foundation based on fact that expert had not examined appellant and therefore could not render an opinion on his rehabilitative potential; and (4) no valid objection on Fifth and Sixth Amendment grounds even existed if the question of incompetence or lack of mental responsibility was raised by the defense and litigated).

United States v. Sanchez, 51 MJ 165 (appellant’s unconditional guilty plea waived claim that conviction for failing to report serious offense violated appellant’s Fifth Amendment right against self-incrimination).

United States v. Magnan, 52 MJ 56 (appellant knowingly relinquished and abandoned any claim of error resulting from a misstatement by the staff judge advocate in the post-trial recommendation to the effect that there was no clemency recommendation by the military judge was error; the uncontradicted affidavit of defense counsel shows that appellant specifically directed defense counsel not to request clemency or seek any suspension of the punitive discharge).


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