2012 (September Term)
United States v. Vazquez, 72 M.J. 13 (in a members trial, after five of six government witnesses had testified on the merits, the accused chose to challenge a member for cause, knowing it would drop the panel below quorum; rather than request a mistrial or any other alternative, trial defense counsel affirmatively stated that they had no objection to new members being detailed, participated in voir dire and the discussion about how to present the record to the new members, and stated that they had no objection to the procedure used (allowing counsel to give opening statements and then having counsel read the verbatim transcripts of testimony of the five witnesses to the new members); appellate defense counsel identified no errors related to this procedure before the CCA, and the accused did not allege that trial defense counsel’s tactical decisions to challenge the original member for cause and continue the trial with two new members constituted ineffective assistance of counsel; ordinarily, an appellate court would conclude that the accused had affirmatively consented to the application of the procedure established in Article 29(b), UCMJ, and implemented by RCM 805(d)(1), and waived his right to object to them at this juncture, particularly when he failed to raise them before the CCA; however, given that the application of these procedures in this context has not previously been addressed by CAAF, and that CAAF harbors a presumption against waiver of the fullest expression of rights under the Confrontation Clause, it will treat the failure to object as forfeiture and review for plain error; to reverse the military judge’s application of the procedures established in Article 29(b), UCMJ, and RCM 805(d)(1), when the court-martial dropped below quorum mid-trial for plain error, any error had to materially prejudice the substantial rights of the accused).
United States v. Clifton, 71 M.J. 489 (under a plain error analysis, an appellate court will grant relief in a case of nonconstitutional error only if an appellant can demonstrate that (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, the military judge’s summary denial of the member’s request to recall two witnesses for further questioning was plain and obvious error in light of US v. Lampani, 14 MJ 22 (CMA 1982), Article 46, UCMJ, RCM 921(b), and MRE 614(a), where the military judge did not perform an analysis of three of the Lampanifactors before summarily denying the member’s request – that is, he failed to consider the difficulty in obtaining the witnesses and the concomitant delay, the materiality of the testimony that a witness could produce, and the likelihood that the testimony sought might be privileged; in fact, without knowing the nature of the member’s questions, it was not possible to ascertain the materiality of the testimony that the recalled witnesses could have provided; although the military judge committed error by not analyzing three of the four Lampanifactors, Lampani does not provide an exhaustive list of factors to weigh; in a case such as this, it would have been appropriate for the military judge to have considered, among other things, whether the members had already been given an opportunity to ask the witnesses questions).
United States v. Halpin, 71 M.J. 477 (because appellant did not object to trial counsel’s sentencing arguments at trial, an appellate court reviews the propriety of the arguments for plain error; to prevail under a plain error analysis, appellant has the burden of showing, inter alia, that the alleged errors materially prejudiced a substantial right).
(in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on appellant’s substantial rights and the fairness and integrity of his trial; the best approach to the prejudice determination with respect to findings involves balancing three factors: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; in the context of an allegedly improper sentencing argument, an appellate court considers whether trial counsel’s comments, taken as a whole, were so damaging that it cannot be confident that appellant was sentenced on the basis of the evidence alone).
United States v. Garner, 71 M.J. 430 (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).
United States v. Wilkins, 71 M.J. 410 (where there was no objection to a lesser included offense instruction at trial, an appellate court reviews for plain error).
(under a plain error analysis, appellant has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused).
2011 (September Term)
United States v. Humphries, 71 M.J. 209 (a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice).
(in the context of a plain error analysis of defective indictments, the accused has the burden of demonstrating that: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of the accused).
(in the plain error context, a defective specification alone is insufficient to constitute substantial prejudice to a material right; an appellate court looks to the record to determine whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted).
United States v. Rose, 71 M.J. 138 (when defects in a specification are raised for the first time on appeal because of intervening changes in the law, an appellate court tests for plain error and will only dismiss the specification if there is prejudice).
United States v. Ballan, 71 M.J. 28 (while the rules state that a charge or specification that fails to state an offense should be dismissed, a charge that is defective because it fails to allege an element of an offense, if not raised at trial, is tested for plain error).
(in the context of a plain error analysis, appellant has the burden of demonstrating: (1) there was error; (2) the error was plain or obvious; and (3) the error materially prejudiced a substantial right of appellant).
2010 (September Term)
United States v. Sweeney, 70 M.J. 296 (where appellant forfeited rather than waived his right to object to the admission of a drug testing report on Confrontation Clause grounds, an appellate court reviews for plain error).
(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).
(under the plain error test, after finding plain or obvious error, an appellate court tests for prejudice).
(to test the erroneous admission or exclusion of evidence during the sentencing portion of a court-martial for prejudice, an appellate court determines if the error substantially influenced the adjudged sentence).
(the military judge did not commit plain error by admitting the testimony of appellant’s battalion executive officer who testified in sentencing that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; absent objection to the witness’s testimony, it was not unreasonable for the military judge to infer that the executive officer of a Special Forces battalion would have direct and personal knowledge of appellant, a senior enlisted member in the command).
(the military judge did not commit plain error by admitting the testimony in sentencing of appellant’s group commander who testified that appellant should not be retained in the armed forces, where it was not evident that there was a clear and obvious basis to exclude his testimony for lack of foundation; although the witness based his knowledge of appellant on his reputation in the command and he did not state that he had direct personal knowledge of appellant, the witness’s testimony was based on his standing as a Special Forces Group commander; in the context of plain error review and in the context of the tightly knit and relatively small units that comprise the Army Special Forces community, absent a record indicating otherwise, the military judge did not abuse his discretion in admitting the Group commander’s testimony).
United States v. Martinez, 70 M.J. 154 (when an appellant does not raise an issue of disqualification of the military judge until appeal, an appellate court examines the claim under the plain error standard of review; plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice).
(Rule 1.2 of the ABA Model Code of Judicial Conduct, mirrored by the Code of Judicial Conduct for Army Trial and Appellate Judges, provides that a judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety or the appearance of impropriety; paramount among a military judge’s continuing ethical responsibilities, consistent with the Model Code and pursuant to the Army Code, is to ensure against improper ex parte communications and the appearance of partiality; specifically, Rule 2.9 provides a general prohibition against initiating, permitting, or considering ex parte communications involving substantive matters, except in very limited circumstances; in this case, the supervisory military judge’s communications with the trial counsel during the trial concerning the legal sufficiency of the providence inquiry and/or the legal sufficiency of the inquiry into the pretrial agreement involved substantive matters, and it was plain and obvious error for her to initiate those ex parte communications with trial counsel; compounding this error, the supervisory judge entered the presiding trial judge’s chambers during a recess she initiated as well as during the deliberations, and failed to inform the trial judge that she had been communicating ex parte with the prosecution; a reasonable person knowing all these circumstances would have observed the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations; this course of conduct under the circumstances created an appearance that neither the supervisory judge nor the trial judge was impartial).
(in a plain error context with respect to a military judge’s impartiality, an appellate court looks to see if the error materially prejudiced the substantial rights of appellant and whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; both inquiries are conducted even if the court concludes that there is no Article 59(a) prejudice as it is possible that appellant may not have suffered any material prejudice to a substantial right, but that reversal would still be warranted under Liljeberg).
United States v. Marsh, 70 M.J. 101 (where the defense counsel did not object to trial counsel’s sentencing argument at trial, appellant’s claim on appeal of improper argument is reviewed for plain error; to prevail, appellant must prove that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right).
United States v. Arriaga, 70 M.J. 51 (where there is no objection to an instruction at trial, an appellate court reviews it for plain error).
(plain error occurs when (1) there is error, (2) the error is plain or obvious, and (3) the error results in material prejudice).
United
States v. McMurrin, 70 M.J. 15 (plain error requires
(1) that there be error, (2) that the error be plain or obvious, and
(3) that
the error materially prejudices a substantial right of the accused).
(because negligent homicide
under Article 134,
UCMJ, was not an LIO of involuntary manslaughter under Article 119,
UCMJ,
convicting the accused of negligent homicide as an LIO was an error
that was
clear and obvious; the error involved a substantial right of the
accused where
convicting him of negligent homicide, despite the fact that all of its
elements
were not contained in the specification, violated his Fifth Amendment
due
process right not to be convicted of an offense different than the one
appearing on the charge sheet; the error was not structural error; and
the
error was prejudicial plain error where the accused was not charged
with the
offense of which he was convicted, where the specification was not
amended in
accordance with RCM 603, where he did he defend himself on the theory
that
while he was not guilty of involuntary manslaughter, he was guilty of
negligent
homicide, and where but for the error, the accused would not have been
convicted of negligent homicide).
United
States v. Girouard, 70 M.J. 5 (where there is no
waiver, and in the absence of
an objection, an appellate court tests the instructions provided by the
military judge for plain error based on the law at the time of appeal).
(in the context of a plain
error analysis, the
accused has the burden of demonstrating that: (1) there was error; (2)
the
error was plain or obvious; and (3) the error materially prejudiced a
substantial right of the accused).
(where appellant was charged
with premeditated
murder, it was plain error to instruct on negligent homicide as an LIO;
the
error was clear and obvious because negligent homicide was not an LIO
of
premeditated murder; in addition, appellant suffered prejudice to a
substantial
right where the rights at issue in this context were substantial, given
that
they were rooted in both the Fifth and Sixth Amendments, and where
under the
facts of this case, the prejudice was clear - appellant was convicted
of an
offense that was not an LIO of the charged offense, appellant did not
agree to,
and the military judge did not, amend the charge or specification, nor
did
appellant defend against the charged offense of premeditated murder on
a theory
that he was guilty of negligent homicide, nor was the case tried on a
theory of
negligent homicide by the government; but for the error, appellant
would not
have been convicted of negligent homicide).
United
States v. Clark, 69 M.J. 438 (where the
asserted errors regarding trial counsel’s references during the opening
statement, direct examination of appellant, and closing argument to
appellant’s
exercise of his right to silence were not preserved at trial, an
appellate
court reviews them for plain error).
(whether there was plain error
is a question
reviewed de novo).
(to find plain error,
appellant must show that
there is error, that the error was plain or obvious, and that the error
materially prejudiced his substantial rights).
(trial counsel’s comments in
his opening
statement, direct examination of the investigating agent, and closing
argument
constituted plain error because they clearly commented on appellant’s
silence
in response to appellant’s post-apprehension, pre-advisement accusation
of
criminal conduct, in violation of MRE 304(h)(3) and the Fifth Amendment
right
to silence; first, trial counsel’s opening statement reference to
appellant’s
reaction - “shoulders slumped and his head dropped; chin to chest” - as
his
response to being confronted with being suspected of communicating
sexual
language with a minor conveyed that appellant failed to deny the
accusation,
rather than merely describe appellant’s body movements as one of a
series of
events to describe what was happening; second, during the direct
examination of
the investigating agent, trial counsel not only elicited explicit
comments on
appellant’s response of silence but explicitly commented on appellant’s
silence
himself in the examination questions; finally, trial counsel relied on
these
comments in his closing argument to explicitly argue that appellant’s
silence evidenced
his guilt).
United
States v. Lewis, 69 M.J. 379 (in the absence
of defense objection, an
appellate court reviews for plain error).
(under the plain error
standard, an appellant
must show that (1) an error was committed, (2) the error was plain, or
clear,
or obvious, and (3) the error resulted in material prejudice to
substantial
rights; an error is not plain and obvious if, in the context of the
entire
trial, the accused fails to show the military judge should be faulted
for
taking no action even without an objection).
(in this case, where the
defense articulated a
strategy expressly promising an affirmative showing of innocence,
attempted to
make such an affirmative showing during its case on the merits, and
argued in
closing that it had delivered on its promise, the prosecution could (1)
on
cross-examination of the defense expert, rely on the defense posture
and the
evidence presented during the defense case as providing the basis for
questions
posed to the expert regarding whether his investigation had found any
exculpatory evidence, and (2) during rebuttal of closing argument, rely
on the
defense counsel’s closing argument, which highlighted the earlier
defense
presentation, as providing the basis for the comments that the defense
expert
had found nothing exculpatory for appellant; the defense posture and
the
evidence opened the door to exploration of these matters; in context,
the
prosecution’s questions and argument fell well within the range of
permissible
cross-examination and argument; accordingly, appellant failed to meet
his
burden of establishing error, much less plain error).
United
States v. Flores, 69 M.J. 366 (when no
objection is made to a
nonconstitutional error during a court-martial, a trial counsel’s
arguments are
reviewed for plain error; plain error occurs when (1) there is error,
(2) the
error is plain or obvious, and (3) the error results in material
prejudice).
(a direct reference made by
trial counsel
during his closing argument on the merits to a statement made by
appellant
during the providence inquiry in an attempt to show that appellant
corroborated
the testimony of another witness was plain and obvious error).
(even if trial counsel’s
comment during
closing argument on the merits that nothing introduced during the
court-martial
corroborated what appellant had said when she had the opportunity to do
so
could be interpreted to be a reference to appellant’s right to remain
silent,
the comment did not constitute plain and obvious error, where appellant
made
two voluntary pretrial statements to investigators that were properly
before
the court, and in context, trial counsel’s argument was that nothing
was
admitted during the court-martial that corroborated those pretrial
statements).
United States v. Pope, 69 M.J. 328
(failure to object to an instruction given or omitted waives the
objection
absent plain error).
(the plain error standard is
met when: (1) an
error was committed; (2) the error was plain, or clear, or obvious; and
(3) the
error resulted in material prejudice to substantial rights).
(although the military judge
erred in failing
to give a limiting instruction that the admitted demonstrative evidence
was for
illustrative purposes only, given the overwhelming evidence of
appellant’s
guilt and the fact that there was little danger that the members would
have
confused the demonstrative evidence for actual evidence, the absence of
a
limiting instruction had no substantial effect on the verdict, did not
materially prejudice appellant’s rights, and did not constitute
prejudicial
plain error).
(whether there has been
improper reference to
an accused’s invocation of her constitutional right to remain silent -
in
testimony or argument - is a question of law that an appellate court
reviews de
novo; where there are no objections at trial, the court reviews for
plain
error).
(although testimonial comments
at trial indicated that when appellant was
informed of her positive drug test, she was lackadaisical, acted like
she did
not care, and did not appear surprised, these comments could be viewed
as
either nontestimonial demeanor evidence or as implicating appellant’s
right to
remain silent; accordingly, it was not plain, or clear, or obvious that
they
were comments on appellant’s constitutional right to remain silent;
while a
closer question, it was also not obvious that the comments violated MRE
304(h)(3)(stating
that a person’s failure to deny an accusation of wrongdoing concerning
an
offense for which at the time of the alleged failure the person was
under
official investigation or was in confinement, arrest, or custody does
not
support an inference of an admission of the truth of the accusation);
even if
the comments constituted either constitutional or evidentiary error,
any such
error was not prejudicial under either a constitutional or
nonconstitutional
standard, where the comments were minor comments in the context of the
entire
trial and argument, the government presented overwhelming evidence of
appellant’s guilt, including the uncontested urinalysis results, her
admission
to her roommate, and her suspicious behavior at the testing site, and
where
appellant’s theory of defense was unclear and, therefore, not strong).
United
States v. Mullins, 69 M.J. 113 (where an
appellant has not preserved an
objection to evidence by making a timely objection, that error will be
forfeited in the absence of plain error).
(the plain error standard is
met when (1)
there is error, (2) the error is plain or obvious, and (3) the error
results in
material prejudice to a substantial right of the accused).
(on direct review, an
appellate court applies
the clear law at the time of appeal in determining whether the error
was plain
and obvious, not the time of trial).
(the error in admitting expert
testimony from
which the court members could infer that there was a 1 in 200 chance
that the
allegations of child victims of sexual assault were false was plain and
obvious; this case was pending on appeal when the CAAF held that expert
testimony about the statistical frequency of children lying about
sexual abuse
was inadmissible; in addition, related case law at the time of trial
supported
the conclusion that the error in this case was plain and obvious, where
the
CAAF had cautioned against expert statistical testimony that placed an
accused
within a definitive profile suggesting guilt; and finally, the error in
this
case was apparent to the military judge, who immediately issued a
corrective
instruction on the role of the members when the expert initially stated
that
the children’s statements were consistent with those of children who
had been
abused).
(an error materially
prejudices an appellant
when there is undue influence on a jury’s role in determining the
ultimate
facts in the case; with respect to erroneous testimony, an appellate
court
looks at the error in context to determine if the witness’s opinions
amounted
to prejudicial error; context includes such factors as the military
judge’s
instructions and the strength of the government’s case).
(the error in admitting
expert testimony from
which the court members could infer that there was a 1 in 200 chance
that the
allegations of child victims of sexual assault were false did not
materially
prejudice appellant’s substantial rights where the military judge gave
corrective instructions at the conclusion of the expert’s direct
examination,
as well as before deliberations, ensuring that the panel members would
know
their role and not accept the percentage testimony as a proxy for
credibility,
where the military judge asked the expert a clarifying question, the
answer to
which indicated that the expert did not have a scientifically accurate
way of
proving whether a child was telling the truth or not, thus minimizing
the
impact of the expert’s testimony, and where there was corroborating
evidence
upon which the court members could rely).
United
States v. Jones, 68 M.J. 465 (in the context
of a plain error analysis, appellant
has the burden of demonstrating that: (1) there was error; (2) the
error was
plain or obvious; and (3) the error materially prejudiced a substantial
right).
(in this case, the military
judge committed
plain error in instructing the members that the offense of indecent
acts was an
LIO of rape; conviction of an offense not charged was clearly
prejudicial in
the context of plain error analysis where the case was not tried on a
theory of
indecent acts and the military judge did not introduce the subject of
indecent
acts into the case until after the parties had completed their
presentation of
the evidence; the variance between what appellant was charged with and
what he
was convicted of was fatal: appellant was charged with rape, and
nothing in
that charge put appellant on notice that he also needed to defend
against
indecent acts).
United
States v. Burton, 67 M.J. 150 (when no
objection is made during the trial, a counsel’s arguments are reviewed
for
plain error).
(plain error occurs when (1)
there is error,
(2) the error is plain or obvious, and (3) the error results in
material
prejudice).
(an error is not plain and
obvious if, in the
context of the entire trial, appellant fails to show the military judge
should
be faulted for taking no action even without an objection; the relevant
context
includes the evidence presented at trial and the instructions given by
the
military judge).
(any error in the trial
counsel’s closing
argument on findings that the members of the panel could compare the
similarities between the charged sex offenses for a propensity to
commit these
types of offenses and see the accused’s modus operandi did not rise to
the
level of plain error that required the military judge to sua sponte
instruct the
panel on the use of propensity evidence or take other remedial
measures, where
the similar conduct was charged and presented as two separate offenses,
the
military judge specifically instructed the panel that the trial
counsel’s
argument was not evidence and gave a general spillover instruction,
neither trial nor
defense counsel offered propensity evidence or requested a
propensity instruction, and the comments of trial counsel were not so
egregious
as to provoke an objection by trial defense counsel).
United
States v. Paige, 67 M.J. 442 (an
appellant meets the plain error standard if he establishes that (1) an
error
was committed; (2) the error was plain, or clear, or obvious; and (3)
the error
resulted in material prejudice to substantial rights; once appellant
meets his
burden of establishing plain error and if the error is of
constitutional
dimension, the burden shifts to the government to convince the
appellate court
that this constitutional error was harmless beyond a reasonable doubt).
(trial
counsel’s comments in argument in a rape trial that there was
uncontradicted
evidence of the alleged victim’s intoxicated condition during the
intercourse was
not plain or obvious error, where a second witness corroborated almost
all of the
only eyewitness’s testimony).
(trial counsel’s comments in
argument in a
rape trial that appellant had to assert that his mistake was honest to
establish a mistake of fact defense was plain or obvious error, where
trial
counsel’s choice of words suggested that appellant had to testify to
establish
the defense and the members would have naturally and necessarily
interpreted
this aspect of trial counsel’s summation as comment on appellant’s
failure to
testify).
United
States v. Marshall, 67 M.J. 418 (defense
counsel’s motion for a finding of not
guilty under RCM 917, on the ground that the proof varied from the
charge,
preserved the issue; the motion placed the fundamental issue - whether
there
was any evidence that the accused escaped from the custody of one
individual
rather than another - squarely before the military judge as trier of
fact; once
that motion was denied, appellant had no duty to engage in the empty
exercise
of repeating the objection after the military judge announced his
findings).
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).
(if
this were simply a case where testimony
came into evidence without any objection or comment from defense
counsel, an
appellate court would review for plain error).
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).
United
States v. Ober, 66 M.J. 393 (appellant failed to
demonstrate that the omission of the charged words “cause to be” from
the military
judge’s instructions on the charge of transporting child pornography in
interstate commerce constituted plain error, where appellant’s
speculation that
omission of the words might have caused the court-martial members to
ignore
that language or to convict him under another theory of liability for
which
they were not instructed did not carry his burden to show an
unfair
prejudicial impact on the members’ deliberations or material prejudice
to his
substantial rights; as a threshold matter, appellant failed to
demonstrate how
omission of the words “cause to be” -- which were not part of the
underlying
statute -- changed the nature of the offense or left the members with a
misunderstanding of the transporting charge and its specification;
furthermore,
the defense did not object to the military judge’s proposed
instructions on the
transporting charge, nor did the defense request any additional
instructions to
clarify the elements of the offense).
(appellant failed to
demonstrate that the military judge committed plain error in his
instructions
on the charge of transporting child pornography in interstate commerce
by
failing to instruct on a theory of aiding and abetting, where appellant
was
charged and prosecuted with transporting child pornography as a primary
actor,
and the government focused its case on proving that he was guilty of
transporting child pornography based on his own act of obtaining files
via
KaZaA, a peer-to-peer file sharing program; irrespective of
whether the
government could have relied on an aider and abettor theory in this
case,
appellant was not prejudiced by the decision of the military judge to
focus his
instructions on the primary theory presented by the prosecution).
(appellant failed to
demonstrate that the military judge committed plain error in his
instructions
on the charge of transporting child pornography in interstate commerce
by failing
to provide a definition of “uploading,” where the computer forensics
experts
who testified for the government and the defense offered comprehensive
explanations of the KaZaA file sharing process, including uploading; the
absence of a further description of uploading did not constitute a
material
prejudice to the substantial rights of appellant where the testimony at
trial
did not produce a material difference between the parties or their
experts
regarding the operation of KaZaA or how KaZaA could be used to obtain
files,
where the defense did not challenge the government expert’s testimony
that
downloading files through KaZaA caused an upload to occur on the host
computer,
but instead embraced the evidence of how KaZaA worked in an effort to
convince
the panel members that someone other than appellant was responsible for
downloading child pornography on his computer, and where the defense
did not
object to the military judge’s proposed instructions, nor did the
defense
request additional instructions on uploading).
(the plain error standard is met when (1) an
error was committed; (2) the error was plain, or clear, or obvious; and
(3) the
error resulted in material prejudice to substantial rights; appellant
bears the
burden of demonstrating that the three prongs of the test are met).
(the military judge did not
commit plain error
in failing to sua sponte rule that testimony on sentencing regarding
the alleged
anti-war and anti-American material left in appellant’s room after he
went AWOL
was improper evidence in aggravation of his AWOL offense; even if the
judge
erred in admitting this testimony, appellant failed to establish that
the
admission was plainly and obviously erroneous; under the circumstances
of this
case, the testimony that appellant had left behind only a few personal
items when
he departed for a two-week leave did not so obviously lack a direct
relationship to the AWOL offense that the military judge was obliged to
take
sua sponte action; and even though the testimony described some of the
items as
anti-American propaganda, the testimony also indicated that appellant
left them
displayed in his barracks room; this testimony could be read to suggest
that
appellant intentionally left the articles in question as “a display”
for those
who would be investigating his disappearance).
United
States v. Reynoso, 66 M.J. 208 (MRE 103(a)(1)
states that in order to
preserve an objection when the ruling is one admitting evidence, the
objecting
party must make a timely objection or motion to strike in the record,
stating
the specific ground of objection, if the specific ground was not
apparent from
the context; on its face, MRE 103 does not require the moving party to
present
every argument in support of an objection, but does require argument
sufficient
to make the military judge aware of the specific ground for objection;
in
short, MRE 103 should be applied in a practical rather than a formulaic
manner).
(the mere utterance,
“objection on
foundation,” did not preserve any issue under MRE 1006 regarding the
chart itself
or any hearsay issue regarding the underlying evidence upon which the
chart was
based; this is the very reason for the specificity requirement under
MRE
103(a)(1)).
(defense counsel’s objection on foundational
grounds to a chart that an expert witness helped formulate to
demonstrate the
differences in basic allowance for housing rates and cost of living
allowances
for different locations did not preserve any issue on appeal regarding
the chart
itself or any hearsay issue regarding the underlying evidence upon
which the
chart was based, especially where defense counsel’s voir dire of the
witness
appeared designed to suggest that the witness was not in a position to
know
whether the figures he relied on were accurate).
(defense counsel’s statements of “no objection”
in response to the prosecution’s proffer of two laboratory reports for
admission into evidence were appropriately treated as forfeitures,
which
required further analysis under the plain error rule, rather than a
waiver of
the accused’s Sixth Amendment right to confrontation, considering that
Crawford
v. Washington, which changed the framework for the admissibility of
testimonial
hearsay statements, was not decided until after this court-martial
concluded;
Crawford opened the door for a colorable assertion of the right to
confrontation where it was not previously available, and which under
Whorton v.
Bockting was now applicable on direct review; in this legal and factual
context, defense counsel’s strategic decision not to challenge the
admissibility of the reports could not be considered an intentional
relinquishment or abandonment of appellant’s right to confront the
laboratory
personnel under Crawford).
(in order to prevail under a plain error analysis, appellant
must demonstrate that: (1) there was an error; (2) it was plain or
obvious; and (3) the error materially prejudiced a substantial right).
(the error in admitting inadmissible hearsay in
the form of laboratory reports documenting the presence of cocaine and
heroin
on drug paraphernalia seized from the accused’s residence in violation
of the
Confrontation Clause was plain and obvious, but it was harmless beyond
a
reasonable doubt and therefore did not violate a substantial right,
where the
accused admitted that a jeweler’s bag in his home contained cocaine and
a
hypodermic syringe contained heroin, and his admissions were
corroborated by
the testimony of the arresting officers; moreover, the accused did not
demonstrate what, if anything, he would have done at trial if he had
been given
the opportunity to confront the laboratory personnel about their
reports).
United
States v. Nieto, 66 M.J. 146 (to establish
plain error, appellant bears the
burden of demonstrating that (1) an error was committed, (2) the error
was
plain, clear, or obvious, and (3) the error resulted in material
prejudice to
appellant’s substantial rights).
(in this case, the military
judge did not
commit plain error in permitting trial counsel to ask hypothetical
questions
during voir dire using facts from the accused’s case concerning
urinalysis
testing; at the time of trial, the case law from CAAF did not preclude
the trial
counsel’s questions, generally applicable federal criminal law did not
provide
guidance on point, and only a handful of state cases addressed this
matter; in
that context, appellant failed to carry his burden of demonstrating
that the
military judge committed an error that was plain or obvious in
permitting the
trial counsel to ask the hypothetical questions).
United States v. Erickson, 65 M.J. 221 (when a defense
attorney fails to object to a sentencing argument at the time of trial,
appellate courts review the statement for plain error).
(in order to prevail under
a plain error analysis, appellant must demonstrate that: (1)
there was an error; (2) it was plain or obvious; and (3) the error
materially prejudiced a substantial right).
(in assessing prejudice under
the plain error test where prosecutorial misconduct has been alleged,
an appellate court looks at the cumulative impact of any prosecutorial
misconduct on the accused’s substantial rights and the fairness and
integrity of his trial; the best approach involves a balancing of the
following three Fletcher factors: (1) the
severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the
conviction).
(in assessing prejudice in a
judge alone trial in which prosecutorial misconduct during the trial
counsel’s sentencing argument was alleged to have resulted in plain
error, an appellate court considers the Fletcher factors to
determine whether the trial counsel’s comments, taken as a whole, were
so damaging that the court cannot be confident that appellant was
sentenced on the basis of the evidence alone).
(trial counsel’s comparison
of the accused to Hitler and Osama bin Laden during his sentencing
argument in a child sexual abuse case did not result in material prejudice to the accused’s substantial
rights and therefore did not result in plain error, where (1) the
misconduct was not severe considering that the improper comments
amounted to less than a single page out of a 22-page sentencing
argument, did not permeate the entire argument, and were made in the
context of a permissible theme – that unseen evil is worse than open
and obvious evil; (2) the military judge in this judge alone trial is
presumed to be able to distinguish between proper and improper
sentencing arguments and there is nothing in the record that reflects
that the military judge was biased or in any way swayed by the
comments; and (3) the weight of the evidence clearly supports the
determination that the accused would have received the same sentence
irrespective of trial counsel’s improper comments considering that the evidence revealed not only that the accused had
sexually abused his two daughters over a sustained period, but that he
manipulated them into believing that the conduct was appropriate and
that this abuse left his children emotionally scarred).
United States v. Moran, 65 M.J. 178 (by failing to
preserve any evidentiary errors or errors with respect to argument,
appellant forfeited them absent plain error; plain error is established
when: (1) an error was committed; (2) the error was
plain, clear, or obvious; and (3) the error resulted in material
prejudice to an appellant’s substantial rights; appellant has the
burden of persuading an appellate court that these elements of the
plain error test are satisfied).
United States v. Paxton, 64 M.J. 484 (where appellant
did not object to the sentencing argument at trial, he must establish
plain error to prevail on appeal; and to establish plain error,
appellant must demonstrate: (1) that there was
error, (2) that the error was plain or obvious, and (3) that the error
materially prejudiced a substantial right).
(appellant did not establish
that trial counsel’s sentencing argument constituted plain error
because there was no error shown; when considered in context, the trial
counsel’s remarks were based on the testimony of a clinical
psychologist and not on appellant’s decisions to plead not guilty or to
remain silent during sentencing; although trial counsel sought to draw
the inference that appellant was unwilling to accept responsibility or
admit what he had done, he did not do so by commenting on appellant’s
decision to exercise those rights; to the extent the argument went
beyond the facts established in the record or failed to make clear that
counsel was calling for an inference reasonably drawn from the
evidence, it would constitute error; however, even if there was error,
appellant failed to establish that it was plain and obvious).
United States v. Brooks, 64 M.J. 325 (where an appellant has not
preserved an objection to evidence by making a timely objection, that
error will be forfeited in the absence of plain error).
(to demonstrate that relief
is warranted under the plain error doctrine, an appellant must show
that: (1) there was error; (2) the error was plain
or obvious; and (3) the error was materially prejudicial to his
substantial rights.).
(the military judge committed
plain error by admitting, as evidence in aggravation at sentencing,
enlistment documents in which the accused admitted to preservice use of
marijuana and pledged not to use drugs in the Navy, where the evidence
was not directly related to the offense of using marijuana for which
the accused was convicted, its admission was clear and obvious error in
light of the language of RCM 1101(b)(4), and its admission materially
prejudiced the accused’s substantial rights; the material prejudice
resulted from the fact that (1) the accused’s trial and sentencing was
before members, (2) the military judge emphasized that all matters
offered in aggravation should be considered by the members, and (3) the
accused’s case in extenuation and mitigation showed four positive
evaluations, the absence of any negative evaluations, no prior
nonjudicial punishments or convictions, and her admission to having
made a mistake; it was not evident that the accused so clearly deserved
her bad-conduct discharge such that the evidence of preservice drug use
was irrelevant to the members’ decision; it seems likely that the
outcome in the sentencing portion of appellant’s trial may have been
different had the evidence been properly excluded).
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).
(when
an
objection is waived at trial, it can only be reviewed by establishing
plain
error).
(there
are three
elements for the plain error test: (1) that there was an error, (2)
that the
error was plain, that is, clear or, equivalently, obvious, and (3) the
plain
error affected substantial rights).
(even
assuming
there was a material variance between the pleadings and the findings,
appellant
failed to show prejudice stemming from that error, where the change in
the
description of the alleged overt acts taken in furtherance of that
conspiracy
did not prejudice appellant -- that is, it neither misled appellant in
preparing or presenting his defense, nor failed to protect him against
a
subsequent prosecution for the same misconduct; because appellant
failed to
establish any prejudice by demonstrating that he was misled as to (1)
what he
had to defend against at trial, or (2) whether he could be tried again
for the
same offense or a similar one, there was no 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; plain error occurs when (1) there is
error, (2)
the error is plain or obvious, and (3) the error results in material
prejudice
to a substantial right of the accused).
United
States v. Reyes, 63 M.J. 265 (under a plain error analysis,
appellant must
show that there was an error, that the error was plain or obvious, and
that the
error materially prejudiced a substantial right).
(in
this case,
appellant demonstrated that the sentencing errors materially prejudiced
a
substantial right, satisfying the third prong of the plain error test;
the
improper admission of extraneous material during the sentencing phase
of
appellant’s trial, to include pictures that the military judge had
earlier
determined were inadmissible and appellant’s pretrial offer to plead
guilty to
charges on which the members had just returned a verdict of acquittal,
and the
military judge’s erroneous instruction on the maximum punitive
discharge that
could be imposed by the members, had a prejudicial impact on
sentencing; the
combination of the erroneous admission of extraneous information and
the
instructional error resulted in a substantial risk that the members
were
misinformed both as to the evidence that they could consider and the
range of
punishments that they could impose; in view of the relatively brief
period of
restriction adjudged and the absence of confinement, a punitive
discharge was
not a foregone conclusion; in that context, and in light of the
cumulative
impact of the errors during sentencing, an appellate court cannot be
confident
that the errors did not substantially sway the members in their
decision to
adjudge a punitive discharge in appellant’s case).
United
States v. Washington, 63 M.J. 418 (under a plain error analysis,
appellant
must show that there was error, the error was plain or obvious, and
that the
error materially prejudiced his substantial rights).
(the
failure to
administer the oath before a child witness’s testimony was error, and
the error
was obvious; the plain text of MRE 603 required the child witness, by
oath or
affirmation, to declare that she would testify truthfully before
testifying;
the initial colloquy between the child witness and trial counsel fell
short of
this requirement; however, appellant’s plain error claim fails because
he
cannot show he was materially prejudiced by the error where the trial
counsel
asked if the child witness knew the difference between the truth and a
lie, and
she indicated that she understood, where at the end of her testimony,
the child
witness stated that she had told the whole truth and nothing but the
truth,
where she then swore that everything she said had been the truth, and
where
after the child witness was recalled, she also stated that she had told
the
truth the previous day; although the colloquy between the trial counsel
and the
child witness was not a formal oath or affirmation, the witness
demonstrated
that she understood her duty to tell the truth; in short, consistent
with the
purpose of MRE 603, but not its temporal requirement, the record of
trial
reveals that the child witness was alert to the necessity of telling
the truth
both at the beginning of her testimony and at the outset of the second
day of
her testimony).
United
States v. Bungert, 62 M.J. 346 (where no objection is raised at
trial, an
appellant can only prevail on appeal if he can show plain error; to
establish
plain error, the appellant must demonstrate: (1) that there was
error,
(2) that the error was plain or obvious, and (3) that the error
materially
prejudiced one of his substantial rights; the appellant has the burden
of
persuading the court that the three prongs of the plain error test are
satisfied; as all three prongs must be satisfied in order to find plain
error,
the failure to establish any one of the prongs is fatal to a plain
error
claim).
(in
this case,
because he did not to establish any material prejudice to his
substantial
rights, the accused failed to establish that the military judge
committed plain
error during sentencing by admitting evidence in aggravation describing
the
impact of his allegation that others in his unit had used drugs; the
accused
offered no evidence that he was prejudiced in any substantial way by
the
testimony of the government’s two sentencing witnesses; while he argues
that
these witnesses comprised the government’s entire case in aggravation,
he does
not explain how the outcome might have been different if their
testimony had
been excluded, particularly in light of the fact that the sentencing
was by a
military judge sitting alone; he also fails to explain how he was
materially
prejudiced when he received the protection and benefit of a pretrial
agreement
that limited his maximum possible time in confinement to 120 days
regardless of
the sentence adjudged by the court).
United
States v. Cary, 62
M.J. 277 (in the absence of defense objection to a personal data sheet
admitted
in sentencing with an incorrect reference to an Article 15, UCMJ,
nonjudicial
punishment, an appellate court proceeds under the plain error standard;
it must
determine whether there was error, whether it was plain, and whether it
materially prejudiced a substantial right of the accused).
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;
an
appellate court must then determine whether there was error, whether it
was
plain, and whether it materially prejudiced a substantial right of the
accused).
(the
SJA’s
recommendation to the convening authority that he suspend adjudged
forfeitures
and waive automatic forfeitures for the benefit of appellant’s family
constituted a plain and obvious error where appellant had completed his
period
of obligated service, was sentenced to confinement, and thus was not
entitled
to compensation).
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).
(to
prevail
under a plain error analysis, appellant must persuade this Court that:
(1)
there was an error; (2) it was plain or obvious; and (3) the error
materially
prejudiced a substantial right).
(in
the context
of a post-trial recommendation error, whether that error is preserved
or is
otherwise considered under the plain error doctrine, an appellant must
make
some colorable showing of possible prejudice).
United
States v. Carter, 61 M.J. 30 (with respect to plain error, the
defense must
show that there was error, that the error was plain, and that the error
materially prejudiced the accused’s substantial rights; once the
defense meets
its burden of establishing plain error, the burden shifts to the
government in
the case of constitutional error to convince us that the error (here,
the trial
counsel impermissibly referencing the accused’s Fifth Amendment right
to not
testify) was harmless beyond a reasonable doubt).
(where
trial counsel improperly implied that the accused had an obligation to
produce
evidence to contradict the government’s witness, this essentially
shifted the
burden of proof to the accused to establish his innocence -- a
violation of
protections of the Fifth Amendment; as such, the comments constituted
error
under the first prong of the plain error test; in addition, trial
counsel
repeatedly made the comments in the context of the accused’s decision
not to
testify; in light of the well-established prohibition against such
comments,
the error was plain under the second prong of the plain error test;
although
the military judge instructed the members that they were not to make
adverse
inferences from the accused’s decision to remain silent, we agree that
trial counsel’s
subsequent rebuttal vitiated any curative effect; the rebuttal occurred
immediately after the instruction, and trial counsel continued to make
improper
reference to the accused’s silence by characterizing the evidence as
“uncontroverted;” finally, this was not a case where the impact of any
error
was not prejudicial because the defense failed to fulfill a promise to
put on a
defense; the defense never focused the members’ attention on any facts
that it
planned to present; thus, under the circumstances, the government
failed to
meet its burden of establishing that trial counsel’s improper comments
were
harmless beyond a reasonable doubt).
United
States v. Brewer, 61 M.J. 425 (where there is no objection to an
instruction at trial, an appellate court will provide relief only if it
finds
plain error; to meet the test for plain error, an appellant must show
that
there was error, the error was plain or obvious, and the error
materially
prejudiced his substantial rights; if the appellant meets this test,
the burden
shifts to the government to show that the error was harmless beyond a
reasonable doubt; the court reviews these questions de novo).
United
States v. Hays, 62 M.J. 158 (in the absence of objection at trial,
an
appellate court applies the plain error test; appellant has the burden
of
demonstrating that there was an error, that the error was plain or
obvious, and
that the error materially prejudiced his substantial rights; an
appellate court
need not assess whether there was an error if any error would not have
materially prejudiced appellant’s substantial rights).
(when
the issue
of plain error involves a judge-alone trial, an appellant faces a
particularly
high hurdle; a military judge is presumed to know the law and apply it
correctly, is presumed capable of filtering out inadmissible evidence,
and is
presumed not to have relied on such evidence on the question of guilt
or
innocence; as a result, plain error before a military judge sitting
alone is
rare indeed).
2004
United
States v. Kahmann, 59 MJ 309 (we analyze a claim of
plain
error under the three-part standard of United States v. Powell,
49 M.J.
460, 464-65 (C.A.A.F. 1998); that is, (1) whether there was an error;
(2) if
so, whether the error was plain or obvious; and (3) if the error was
plain or
obvious error, whether it was prejudicial).
(absent
timely
objection, irregularities do not provide a basis for relief without a
showing
that any errors were plain or obvious, or that they were prejudicial).
United
States v. Rodriguez, 60 MJ 87 (failure to object to
improper
argument may constitute waiver; in the absence of an objection, we
review for
plain error; plain error occurs when there is (1) error, (2) the error
is
obvious, and (3) the error results in material prejudice to a
substantial
right).
2003
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 instruction
actually
given by the military judge, which was discussed in detail with
counsel,
summarized the general concept of constructive force under our case
law; if
defense counsel believed that further amplification of the law by the
military
judge was warranted, the time to request such modifications was at
trial, when
the military judge could have tailored any requested wording to the law
and the
evidence; counsel was actively engaged in the consideration of the
instruction
at trial; under these circumstances, there was no plain error).
(even if it was error for the military judge to give a constructive
force
instruction for rape that deviated from the model instruction, it was
not plain
error where the constructive force instruction and related instruction
on the
element of force sufficiently informed the members that force was
required for
the crime of rape, that it could be in the form of constructive force,
and that
constructive force could be brought to bear on the victim through the
use or
abuse of military authority that created a reasonable belief that the
victim
would suffer physical injury or that resistance would be futile).
2002
United
States v. Gilley, 56 MJ 113 (reference to
appellant’s
request for counsel may have fairly rebutted the defense theory
concerning
pretrial statement and was not used as substantive evidence of guilt
against
appellant; even if it was error to allow the testimony, given the
context in
which the issue arose here and the lack of objection, court found no
material
prejudice to appellant’s substantial rights and, thus, no plain error).
(where defense counsel did not object to trial counsel’s repeated
references
to appellant’s request for counsel or request a curative instruction,
relief
will be granted only if the military judge’s failure to instruct sua
sponte
was plain error).
(although trial counsel’s argument made repeated references to
appellant’s
pretrial request for counsel, court found no material prejudice to
appellant’s
substantial rights, and thus no plain error, where: (1) defense
counsel’s
failure to object or request curative instructions was relevant to a
determination of prejudice and some measure of the minimal impact of
trial
counsel’s statements; (2) there was overwhelming evidence of guilt; and
(3)
appellant’s exculpatory story was implausible).
United
States v. Barner, 56 MJ 131 (an appellant has the
burden
of persuading court that there was plain error).
United
States v. Tyndale, 56 MJ 209 (under a plain error
analysis, an appellant has the burden of persuading the court
that: (1)
there was an error; (2) the error was plain or obvious; and (3) the
error
materially prejudiced a substantial right).
(appellant failed to show that erroneous admission of government
polygraph
evidence designed to rebut defense polygraph evidence materially
prejudiced a
substantial right because: (1) other than the fact that he was
convicted,
appellant points to nothing that would support a blanket assertion that
the
members reached their findings of guilt solely by rejecting appellant’s
polygraph experts and accepting the government’s; (2) precedent does
not
support the general proposition that an accused be allowed to put his
credibility in issue without challenge from the prosecution; and (3)
appellant’s own erroneously admitted polygraphs likely negated any
potential
prejudicial error stemming from the government’s polygraph).
United
States v. Simpson, 56 MJ 462 (the burden is on
appellant
to establish plain error).
United
States v. Chapa, 57 MJ 140 (because appellant did
not
establish a factual predicate for his asserted violation of RCM 305, he
has not
overcome the waiver provisions of RCM 905(e) by demonstrating plain
error).
United
States v. Alameda, 57 MJ 190 (where military judge
summarily overruled defense counsel’s relevance objection to testimony
about
appellant’s silence at the time of his apprehension, without allowing
either
side to articulate reasons for or against admitting the testimony, and
without
articulating any rationale for admitting the evidence, defense
counsel’s
objection challenging the relevance the testimony was sufficient to
preserve
the issue of the admissibility of that testimony in light of
Mil.R.Evid.
304(h)(3)).
(defense counsel’s timely objection to trial counsel’s argument was
sufficient to preserve the constitutional and statutory issues arising
from
trial counsel’s use of evidence of appellant’s silence at the time of
his
apprehension as substantive proof of guilt).
United
States v. Terlep, 57 MJ 344 (in order for plain
error to
be found, appellant must establish, inter alia, that an error
occurred).
2001
United
States v. White, 54 MJ 469 (a prisoner must seek
administrative relief prior to invoking judicial intervention and must
show,
absent some unusual or egregious circumstances, that he has exhausted
the
prisoner-grievance system and that he has petitioned for relief under
Article
138, UCMJ).
United
States v. Boyd, 55 MJ 217 (where there was no request for an
instruction on the impact of a punitive discharge on temporary
disability
retirement, military judge did not commit plain error by failing to
instruct sua
sponte where there was no factual predicate before the members for
an
instruction on temporary disability retirement).
United
States v. Palmer, 55 MJ 205 (when a ruling
excludes
evidence, appellate review of the correctness of the ruling is not
preserved
unless the substance of the evidence was made known to the military
judge by
offer or was apparent from the context within which questions were
asked).
United
States v. Norris, 55 MJ 209 (where appellant did
not
contest admissibility of expert’s opinion at trial on the basis that
there was
an inadequate foundation upon which the witness reached a diagnosis,
and where
the defense raised no specific questions that would lead Court to
conclude that
it was inappropriate for expert witness to reasonably rely upon the
factors she
considered in reaching a working diagnosis, there was no basis on this
record
for finding error in this regard, much less plain error).
United
States v. Yarbrough, 55 MJ 353 (where appellant
made no
objection to prosecution exhibit containing medical records of
appellant’s
substance abuse evaluation offered as part of the prosecution’s
case-in-chief
on sentencing, the burden rested upon appellant to show that error
occurred as
part of the plain error analysis).
(where Air Force Court of Criminal Appeals determined that Air Force
Instruction did not prohibit use of appellant’s substance abuse
information
where appellant did not “self-identify”, Court of Appeals for the Armed
Forces
adopted this determination as reasonable and held that appellant failed
to
sustain his burden of showing error so as to justify application of
plain error
doctrine).
2000
United
States v. Cardreon, 52 MJ 213 (A motion in
limine
is not always sufficient to preserve an issue for appellate review
absent
further objection. There is a three-pronged test for determining
when a
motion in limine is sufficient to preserve an issue: (1)
was the
matter adequately presented to the trial court; (2) is the issue of the
type
that can be finally decided in a pretrial hearing; and, (3) the trial
court’s
ruling must be definitive.)
(Motion in limine did not preserve issue of admissibility of
prior
statements where defense counsel conceded that the statements may be
come
admissible during the course of the trial and the military judge made
no
definitive ruling on admissibility.)
(Appellant did not meet his burden of showing plain or obvious error
with
respect to admissibility of prior statements where defense counsel’s
failure to
object precluded fully developing the record with respect to possible
grounds
for admissibility.)
United
States v. Heryford, 52 MJ 265 (an appellant has
the burden
of persuading an appellate court that there was plain error).
(with respect to multiplicity for findings, an appellant may show
plain
error and overcome waiver by showing that the specifications are
“facially
duplicative,” that is, factually the same).
United
States v. Hensley, 52 MJ 391 (despite concession
that it
was error for someone other than ship’s legal officer to prepare
post-trial
recommendation, this error did not amount to plain error; a post-trial
recommendation from someone other than the ship’s legal officer does
not
materially prejudice a substantial right, because an accused does not
have a
right to a recommendation from a specific officer).
United
States v. Robbins, 52 MJ 455 (absent a timely
objection,
an appellate court may take notice of plain error even though not
brought to
the attention of the military judge if the appellant demonstrates: that
there
was an error; that the error was plain, clear or obvious; and that the
error
materially prejudiced the substantial rights of the appellant).
(where trial has been by military judge alone, an appellant faces a
particularly high hurdle in demonstrating plain error because the
military
judge is presumed to know the law and apply it correctly, is presumed
capable
of filtering out inadmissible evidence, and is presumed not to have
relied on
such evidence on the question of guilt or innocence).
United
States v. Avery, 52 MJ 496 (appellant has the
burden to
show plain error, which is error that is clear or obvious and that
materially
prejudices the substantial rights of appellant; once appellant has met
his
burden of persuasion, the burden shifts to the government to show that
the
error was not prejudicial).
(although government erred by failing to provide a law enforcement
report of
investigation pursuant to a defense request for discovery before trial,
there
was no plain error where: (1) the defense had a number of
opportunities
to remedy this situation by requesting a continuance to compel
discovery; (2)
the defense made a tactical decision not to present evidence of the
victim’s
prior rape allegation against another soldier; and, (3) there was no
evidence
or indication in the report that the victim’s allegations were false).
United
States v. Grier, 53 MJ 30 (to be plain
error: (1)
there must be an error; (2) the error must be plain (clear or obvious);
and (3)
the error must materially prejudice the substantial rights of the
defendant).
United
States v. Guthrie, 53 MJ 103 (the burden of
persuasion in
establishing plain error lies with the appellant).
United
States v. Garren, 53 MJ 142 (appellant failed to
meet his
burden to establish that trial counsel’s arguments amounted to plain or
obvious
error materially prejudicing his substantial rights where: (1)
opening
and closing statements were fair comment upon what trial counsel
expected the
evidence to show and what he was in fact required to show to establish
guilt
beyond a reasonable doubt in a trial that dealt with appellant’s lies
about his
criminal responsibility; (2) sentencing argument was fair comment upon
the
evidence, the charges, and appellant’s unsworn statement; (3) the
evidence was
overwhelming; and (4) there was adequate evidence on the record to
reject
appellant’s explanation for his conduct).
United
States v. Pfister, 53 MJ 158 (there was no plain
error to
overcome waiver resulting from defense counsel’s failure to comment on
new matter
served in an addendum to the post-trial recommendation where, 33 days
later,
there was no clear or obvious error in the convening authority’s
decision to
take action without rebuttal to this new matter).
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 not plain error where, in light of
the
serious nature of the charges, there was no fair risk of prejudice
because it
was unlikely that any competent convening authority would not have
referred the
case to a special court-martial).
United
States v. Clark, 53 MJ 280 (an appellate court may
take
notice of plain error even though not brought to the attention of the
military
judge, if the appellant demonstrates: (1) that there was an
error; (2)
that the error was plain, clear, or obvious; and (3) that the error
materially
prejudiced the substantial rights of the appellant).
(even though military judge committed plain and obvious error by
admitting a
stipulation of fact into evidence during a providence inquiry where
that
stipulation noted that appellant agreed to take a polygraph test and
that he
failed that test (Military Rule of Evidence 707), appellant was not
prejudiced
as a result of the erroneous admission of the polygraph evidence via
the
stipulation where there was no evidence that the military judge found
it
necessary to rely on the polygraph evidence in order to accept
appellant’s
guilty plea).
United
States v. Wilson, 54 MJ 57 (an appellant has the
burden of
persuading the appellate court that there was plain error; he must show
that: (1) there was an error; (2) that it was plain or obvious;
and (3)
that the error materially prejudiced a substantial right).
(although the post-trial recommendation was signed by an “Assistant
Staff
Judge Advocate,” there was no timely objection and appellant failed to
sustain
his burden of demonstrating plain error where there was nothing in the
record
showing that the individual who prepared the post-trial recommendation
was not
the senior judge advocate present for duty).
(although the post-trial recommendation was signed by an “Assistant
Staff
Judge Advocate,” there was no timely objection and appellant failed to
sustain
his burden of demonstrating material prejudice under the plain error
doctrine
where: (1) the only defect in the post-trial recommendation was
clearly
harmless; (2) the claim that appellant might receive a more favorable
recommendation from a more experienced officer was purely speculative;
(3)
appellant had negotiated a pretrial agreement that cut the adjudged
confinement
from 7 years to 30 months; and (4) there was no reasonable likelihood
that the
SJA would have recommended clemency or that the convening authority
would have
granted it in this case).
United
States v. Nelson, 53 MJ 319(where
appellant
did not assert at trial that her statement to criminal investigators
was not an
official statement because she did not have an independent duty or
obligation
to speak (paragraph 31c(6)(a), MCM), appellant failed to preserve that
issue for
appellate review).
United
States v. Southwick, 53 MJ 412 (where defense did
not
object to evidence that informant had taken a polygraph examination as
part of
a background investigation prior to being used as an informant, the
matter will
be reviewed for plain error).
(court will take notice of errors even though not raised at trial if
the
appellant demonstrates that there was error, that the error was clear
or obvious,
and that the error materially prejudiced appellant’s substantial
rights).
(although it was clear or obvious error to permit evidence of a
polygraph
examination taken by an informant, appellant did not carry his burden
of
establishing material prejudice where: (1) the polygraph was not
presented as substantive proof; (2) there was no evidence of the
subject matter
of the polygraph; (3) there was no evidence of any responses given
during the
course of the polygraph; (4) there was no suggestion that the polygraph
was
used to measure the truthfulness of the informant’s reports to law
enforcement
regarding appellant’s misconduct; (5) the polygraph was not mentioned
to
bolster the informant’s testimony; and (6) it was the defense counsel
who
elicited the disclosure regarding the polygraph examination).
(where appellant made a 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, it was not
plain error
for the military judge not to grant, sua sponte, additional
confinement
credit for pretrial punishment).
United
States v. Jenkins, 54 MJ 12 (trial counsel’s
improper
questioning, which was designed to compel the accused to state that the
witnesses testifying against him were lying, was not plain error
where:
(1) defense counsel’s theme of the case was that the accused had been
framed by
his co-actors; (2) accused declined to respond to trial counsel’s
questions
about whether certain witnesses were lying; and (3) even though the
accused did
testify that a law enforcement officer was testifying falsely, that
error was
harmless where trial counsel’s questions merely reinforced the defense
theory
of the case).
(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).
(trial counsel’s sentencing argument, which repeatedly referred to
the
accused as a thief and a liar, did not rise to plain error where the
defense
counsel did not find the argument sufficiently offensive to warrant an
objection or request for curative instructions, and where the military
judge’s
detailed and appropriate limiting instructions cured any possible error
in trial
counsel’s sentencing argument).
United
States v. Armstrong, 54 MJ 51 (although appellant
did not
specifically articulate a challenge based on implied bias, Court of
Criminal
Appeals was not constrained by plain error doctrine in reviewing claim
on
appeal under Article 66, UCMJ).
(exercise of peremptory challenge against a member who was the
subject of
unsuccessful challenge for cause does not preclude appellate review of
challenge for cause where RCM 912(f)(4) preserves that right and that
right is
not in conflict with any higher authority).
United
States v. Kho, 54 MJ 63 (to prevail under a plain
error
analysis, appellant has the burden of persuading the court that:
(1)
there was an error; (2) it was plain or obvious; and (3) the error
materially
prejudiced a substantial right).
(application of the plain error doctrine is reviewed de novo
as a
question of law).
United
States v. Diffoot, 54 MJ 149 (even in the absence
of an
objection, court will act to remedy serious injustice and preserve the
integrity of the military justice system where trial counsel argued
that
appellant should be convicted because he was the Hispanic associate of
two
Hispanic Marines who admitted committing the larceny crimes).
United
States v. Tanksley, 54 MJ 169 (appellant’s failure
to
object to a reference in his pretrial statement to his refusal to take
a
polygraph examination forfeited any issue in the absence of plain
error;
appellant failed to sustain his burden of demonstrating prejudice where
this
passing reference to a polygraph examination did not materially
prejudice any
substantial right of appellant).
(an appellant has the burden of demonstrating that any plain error
materially prejudiced his substantial rights).
(a judge’s decision to admit evidence under Mil. R. Evid. 403 is reviewed for abuse of discretion; the military judge enjoys wide discretion when applying Mil. R. Evid. 403, and where he conducts and announces his balancing test on the record a reviewing court will exercise great restraint in reviewing his decision and give him maximum deference in determining whether there is a clear abuse of discretion).
United
States v. Ruiz, 54 MJ 138 (Court of Appeals for
the Armed
forces may exercise its discretion to reverse on a forfeited error only
if the
error materially prejudices the substantial rights of an appellant or
the error
seriously affects the fairness, integrity, or public reputation of
judicial
proceedings).
(the plain error doctrine is to be used sparingly and only in those
circumstances in which a miscarriage of justice would otherwise
result).
1999
United
States v. Simoy, 50 MJ 1 (1998) (failure to give instruction
requiring
voting on lightest proposed sentence first is plain error).
United
States v. Reist, 50 MJ 108 (To succeed under a plain
error
analysis, appellant has the burden of establishing that there was plain
or
obvious error that materially prejudiced his substantial rights).
(there was no material prejudice to appellant’s substantial rights
where
trial counsel had signed charge sheet as accuser, where appellant
pleaded
guilty and requested trial by judge alone after the disqualification
was
announced on the record and trial counsel argued that a request for
judge alone
should be denied, and where trial counsel’s actions did not show a
personal
interest in case.
United
States v. Savage, 50 MJ 244 (unauthorized
conviction of
both lesser-included and greater offenses is plain error because the
dual
convictions have adverse collateral consequences and constitute
unauthorized
punishment in and of themselves).
United
States v. Brown, 50 MJ 262 (failure to object to
proposed
instructions prior to deliberations constitutes waiver of that
objection in the
absence of plain error; RCM 920(f)).
(there was no prejudice, and thus no plain error, from instruction
that
prior nonjudicial punishment for worthless checks could be considered
in
assessing appellant’s character for truthfulness where: (1) the
defense
introduced the particular evidence without requesting any limitations
on its
use; (2) appellant’s explanation for the checks was uncontradicted and,
thus,
marginalized the impact of the instruction; and (3) appellant’s
character for
truthfulness was not the critical issue in the case).
United
States v. Williams, 50 MJ 397 (plain error did not
relieve
appellant of the consequences of failing to object to impermissible
sentencing
evidence to the effect that appellant should be punitively discharged
where
there was no prejudice because: (1) trial was before military
judge alone
who may be presumed to know the law; (2) other properly admitted
evidence amply
demonstrated appellant’s abysmal disciplinary record; and (3) failure
to object
to commander’s testimony that she had past intention of
administratively
discharging appellant was consistent with sentencing strategy of
accepting
minimum amount of confinement and forfeitures in effort to avoid
punitive
discharge).
United
States v. Smith, 50 MJ 451 (plain error would not
relieve appellant
of waiver of alleged instructional defects where: (1) appellant
demonstrated no clear, obvious errors by which he was prejudiced; and
(2)
evidence against appellant’s “all or nothing” tactical trial theory was
overwhelming).
United
States v. Glover, 50 MJ 476 (if a military judge omits
entirely
any instruction on an element of the charged offense, this error may
not be
tested for harmlessness because the court members are prevented from
considering that element at all; where the military judge fails to only
to give
a more specific or amplified instruction on the meaning of terms, the
court
will test for plain error where no such instruction is requested).
(failure to give more detailed instruction on wrongfulness in charge
of
wrongful use of an inhalant was not clear and obvious, and thus not
plain
error, where: (1) the military judge’s benchbook did not provide
for a
more detailed definition of wrongful for this offense under Article
134, UCMJ;
(2) appellant rejected comparison of his offense with wrongful use of
controlled substances during sentencing; (3) the military judge applied
a
maximum sentence lower than that which would have applied to wrongful
use of
controlled substances; and (4) there is no case law requiring a more
detailed
instruction).
(failure to give more detailed instruction on wrongfulness in charge
of
wrongful use of an inhalant, even if clear and obvious error, was not
prejudicial where: (1) the case did not involve any evidence of
unknowing
ingestion or inadvertent ingestion; (2) in light of the evidence, there
was
little chance that the members would be unclear about how to apply the
word
“wrongful” in reaching findings; and (3) the instructions as a whole
were
sufficient to ensure the appellant would not be convicted of an
innocent
inhalation in the context of this case).
United
States v. Voorhees, 50 MJ 494 (it was not plain error
for
convening authority to take action where: (1) appellant and
counsel
clearly knew about statements of convening authority and possible
impact on
qualifications; (2) no objection was made at trial; (3) no post-trial
objection
was made to the convening authority taking action; and (4) appellant
actively
sought clemency from the convening authority).
United
States v. Anderson, 51 MJ 145 (admission of testimony of
government expert on child abuse was not plain error where: (1)
any error
was not plain and substantial; (2) categorization of appellant as
“authority
figure” was obvious and harmless; and (3) defense
counsel’s
objections to expert testimony on credibility were sustained and an
instruction
was given).
United
States v. Finster, 51 MJ 185 (in the absence of an
objection to
the qualifications of the individual preparing a post-trial
recommendation, the
claim of error is analyzed under the plain error standard; that is,
whether
there was “error”; whether it was “plain”; and whether it materially
prejudiced
a substantial right of the accused).
(preparation of a post-trial recommendation by enlisted person who
was
neither the SJA nor legal officer met the criteria for plain error
where:
(1) preparation of the post-trial recommendation by an enlisted person
was
error; (2) the error was plain in light of the well-understood terms
“staff
judge advocate” and “legal officer”; and (3), in light of the critical
role
assigned by Congress to the SJA or legal officer in advising the
convening
authority in that officer’s exercise of discretion, the failure to
obtain a
recommendation from a qualified person materially prejudiced the
substantial
right of the accused to have his submission considered by a qualified
SJA or
legal officer prior to the convening authority’s action).
United
States v. Eggen, 51 MJ 159 (expert opinion on whether a
victim
of a sexual assault was “faking” emotions and being truthful did not
amount to
plain error when placed in context and where military judge gave
specifically
tailored instruction emphasizing that the members alone must determine
whether
a crime occurred in a specific way and whether the alleged victim or
witness is
credible).
United
States v. Scott, 51 MJ 326 (there was no error, plain or
otherwise, where military judge was correct to overrule objections to
psychiatric, expert testimony on the basis of hearsay [see United
States v. Raya, 45 MJ 251 (1996)] and failure to interview
appellant [United
States v. Stinson, 34 MJ 233(CMA 1992)], and expert testimony as
to
recidivism and the potential for rehabilitation of sexual offenders was
proper
sentencing evidence).
United
States v. Gray, 51 MJ 1 (claim that civilian and
military
investigations merged so as to require Article 31 warnings as a
predicate to
pretrial statements did not amount to plain error where factual basis
to
suppress under Article 31 was not developed at trial and defense
counsel made
clear that basis for suppression motion was Fifth Amendment).
United
States v. Nelson, 51 MJ 399 (1999) (appellant failed to
preserve issue
of whether any statements made during his providence inquiry could be
considered as to unrelated charges where he did not plead guilty and,
thus: (1) there is no record from which to determine whether the
government would have introduced the evidence; (2) there is no record
of what
the evidence would have been; and, (3), assuming a violation of
appellant’s
rights, there is no record of how it would have impacted on appellant).
United
States v. Carpenter, 51 MJ 393 (under a plain error
analysis, an
appellant has the initial burden to show that there was an error, that
it was
plain or obvious, and that it materially prejudiced a substantial
right; only if
appellant meets that burden of persuasion does the burden shift to the
government to show that the error was not prejudicial or, in the case
of
constitutional error, to show beyond a reasonable doubt that the error
was not
prejudicial).
United
States v. Villareal, 52 MJ 27 (failure to raise a
multiplicity
for findings motion at trial waives that issue, absent plain error).
(where appellant failed to raise multiplicity for findings motion at
trial,
there was no plain error in considering solicitation to obstruct
justice and
obstruction of justice as separate offenses for findings where it was
not plain
on its face that the two offenses were multiplicious for findings and
there was
no evidence to suggest that the members failed to follow an instruction
to
consider the offenses as one for sentencing).
United
States v. Schlamer, 52 MJ 80 (objection that testimony
was
“speculation, ultimate issue” was not sufficient to preserve objection
that
testimony was a violation of the prohibition against human lie-detector
testimony).
(it is well settled that an expert may not opine that an
out-of-court statement
is true; however, where defense suggested during cross-examination of
law
enforcement agent that he had obtained a “false confession” by creating
intimidating environment, using leading questions, and suggesting facts
to
appellant during interrogation, trial counsel’s question, asking agent
if he
had obtained a “false confession”, did not rise to the level of plain
error).
United
States v. Holt, 52 MJ 173 (where appellant chose to
raise issues
of possible tampering with evidence as a matter for consideration by
the
court-martial as a basis upon which to find appellant not guilty, and
did not
move to preclude introduction of the evidence on this grounds or
challenge
either admissibility or authenticity, the issue of tampering with
evidence was
a matter of weight to be accorded by the finder of fact and does not
provide a
basis for finding prejudicial error at trial).
(appellant’s claim that testing of evidence, which was done without
first
informing the defense and permitting the defense an opportunity to have
a
representative present, destroyed the exculpatory value of that
evidence and
denied the defense equal access to the evidence was not preserved for
appeal where:
(1) the military judge reserved ruling until a defense expert could
determine
whether there was enough of a sample left for analysis; (2) defense
counsel
stated on the record that “it does not look like we have a righteous Garries
motion at this point in time”; (3) defense counsel never raised the
matter
thereafter, even though the military judge had invited him to do so if
he
wished; and, (4) the record does not reflect any impairment of defense
expert’s
ability to analyze the evidence).