TRIAL STAGES: Appeals: Preservation of Error / Plain Error

2022 (October Term)

United States v. Smith, 83 M.J. 350 (unpreserved evidentiary errors are forfeited in the absence of plain error; under this standard, appellant bears the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights). 

(where the defense did not object to the victim’s testimony that she sent a text message to a friend about suspecting that appellant had sexually assault her, the admission of the testimony is reviewed by an appellate court for plain error).

United States v. Witt, 83 M.J. 282 (if a defense counsel fails to object to sentencing arguments at the time of trial, an appellate court reviews for plain error).

(the standard for plain error review requires 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). 

(he burden lies with appellant to establish plain error). 

United States v. King, 83 M.J. 115 (an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error). 

(in this case, the administrative error committed by the government in failing to show good cause on the record for the excusal of a court member is reviewed for plain error where appellant did not challenge the government’s failure at trial). 

(under the plain error standard of review, an appellant bears the burden of establishing (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right). 

(in this case, appellant failed to meet his burden of showing prejudice arising from the government’s failure at trial to place on the record the good cause for excusing a court member where (1) appellant was fully aware of the member’s absence at trial but did not raise an objection or concern, (2) the excusal of the member did not result in any interlopers sitting on the panel, and (3) the change in the members of the panel did not change the number of votes appellant needed to obtain an acquittal because there were still five panel members).   

United States v. Day, 83 M.J. 53 (when an appellant forfeits an argument, an appellate court can review it only for plain error). 

(to establish plain error, an appellant has the burden to demonstrate: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right of the accused). 

2021 (October Term)

United States v. Bench, 82 M.J. 388 (plain error occurs where (1) there is error, (2) the error was plain or obvious, and (3) the error results in material prejudice to a substantial right of the accused). 

(in this case, any Confrontation Clause error in the admission of the remote testimony of appellant’s child, who had been misled by the trial counsel who told the child that appellant was not watching his remote live testimony, was not plain error where each of the three essential elements of the confrontation right was present when appellant’s child testified remotely during the court-martial:  appellant had an opportunity to cross-examine the witness, the witness had taken an oath to tell the truth, and the jury members were able to observe the witness’s demeanor; although the trial counsel’s misleading statements might have lessened the pressure appellant’s child felt to tell the truth, the essential elements of appellant’s confrontation right were still vindicated; furthermore, there was no precedent from any court holding that the Sixth Amendment confrontation right required a child testifying remotely to be aware that the defendant was viewing his or her testimony, and the absence of any controlling precedent strongly undermines appellant’s argument that the military judge committed plain or obvious error by admitting his child’s testimony; accordingly, it should not have been clear or obvious to the military judge that the admission of the child’s testimony would materially prejudice appellant’s Sixth Amendment rights; in other words, whether the Sixth Amendment is violated when a counsel misleads a witness who is testifying remotely about the accused’s presence was an open question with no clear and obvious answer in the military justice system, and as such, appellant cannot establish that the military judge’s admission of his child’s live remote testimony was plainly erroneous).  

United States v. Palacios Cueto, 82 M.J. 323 (when a party does not object to comments by the prosecutor during voir dire, opening statement, argument on the findings, or argument on the sentence, an appellate court reviews for plain error; under plain error review, appellant bears the burden of demonstrating that (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused). 

United States v. Miller, 82 M.J. 204 (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; to meet this burden in the context of a post-trial recommendation error, whether the error is preserved or is otherwise considered under the plain error doctrine, an accused must make some colorable showing of possible prejudice). 

United States v. Quezada, 82 M.J. 54 (an appellate court reviews objections to instructions preserved at trial directly, but reviews objections not raised only for plain error). 

2020 (October Term)

United States v. Adams, 81 M.J. 475 (when a statute of limitations issue is not raised at trial, an appellate court reviews for plain error; to establish plain error, an appellant must demonstrate (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights). 

(a plain reading of the 2016 version of Article 43(b), UCMJ, provides that the statute of limitations for the charges in this case under Articles 125 and 134, UCMJ, was five years; if appellant had been properly advised of this issue by the military judge at trial as required by RCM 907(b)(2)(B), he undoubtedly would have raised the issue as a defense; accordingly, the statute of limitations error here was clear and prejudiced appellant’s defense and substantial rights).    

United States v. McPherson, 81 M.J. 372 (where an accused did not raise a statute of limitations defense at trial and the military judge failed, as required by RCM 907(b)(2)(B), to advise the accused that the statute of limitations provided a defense, an appellate court reviews the failure of the military judge to provide the required advice for plain error; to establish plain error, an accused must show (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights). 

(in this case, the military judge committed plain error where (1) the statute of limitations barred the prosecution of the indecent acts with a child offenses and the military judge failed to inform the accused that he had a defense as required by RCM 907(b), (2) the error was prejudicial because if the military judge had informed the accused about the period of limitations, the accused surely would have asserted the period of limitations as a defense, and where the error was clear and obvious because the 2016 version of Article 43(b), UCMJ, clearly applied to this case because § 5225(f) of the NDAA 2017 plainly said that it did; Article 43(b)(1), UCMJ, clearly set a five-year period of limitations because the longer period in Article 43(b)(1)(B), UCMJ, plainly did not apply to indecent act with a child offenses charged under Article 134, UCMJ).   

United States v. Long, 81 M.J. 362 (where the accused fails to preserve a constitutional instructional error by an adequate objection or request, an appellate court tests for plain error; to establish plain error, an appellant must demonstrate (1) error, (2) that is clear or obvious at the time of appeal, and (3) prejudicial). 

United States v. Tyler, 81 M.J. 108 (while the military judge is the gatekeeper for unsworn victim statements, an accused nonetheless has a duty to state the specific ground for objection in order to preserve a claim of error on appeal).

United States v. Norwood, 81 M.J. 12 (when an accused objects to an improper argument during his court‑martial, an appellate court reviews the issue de novo; however, if an accused failed to object to improper argument during the court‑martial, an appellate court reviews the matter for plain error). 

(to prove plain error resulted from a trial counsel’s improper argument during the sentencing proceeding, appellant has the burden of establishing (1) there was error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right; and in this context, material prejudice to the substantial rights of the accused occurs when an error creates an unfair prejudicial impact on the court members’ deliberations; in other words, the appellant must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different). 

(although the prosecutors in this prosecution for the sexual abuse of a child case clearly committed obvious error during findings by repeatedly vouching for the victim, there was no material prejudice to appellant where the victim testified credibly that appellant sexually abused her and, despite strenuous efforts to undermine her credibility, the defense failed to offer a plausible reason as to why the victim would have fabricated these allegations; therefore, appellant could not show a reasonable probability that he would not have been convicted in the absence of these improper arguments).

(in this case, the prosecutor committed error that was plain or obvious in the sentencing proceeding when she pressured the members to consider how their fellow servicemembers would judge them and the sentence they adjudged instead of the evidence at hand; furthermore, neither the defense counsel nor the military judge took action to address the issue themselves, and thus there was a total lack of curative measures to redress this misconduct; in addition, the error caused material prejudice to the substantial rights of appellant where the prosecutor’s egregious attempt to pressure the members resulted in a reasonable probability that the sentence adjudged was not based on the evidence alone and was greater than it would have been otherwise).  

2019 (October Term)

United States v. Bess, 80 M.J. 1 (where, at trial, appellant cited Batson v. Kentucky, 476 U.S. 79 (1986), and referenced a possible pattern of discrimination in recent cases, he adequately preserved for appeal his Fifth Amendment argument that a racial group was systematically excluded from his court-martial). 

United States v. Carter, 79 M.J. 478 (in this case, the military judge did not commit plain error by admitting into evidence of appellant’s historic cell site location information (CSLI) pursuant to the Stored Communications Act (SCA), 18 USC § 2701, in violation of the Fourth Amendment where the government did not have to show probable cause for the military judge to order a cell phone company to turn over appellant’s CSLI, and even if the admission of the evidence violated the Fourth Amendment, it would have been admissible under the good faith exception to the warrant requirement; the SCA does not contain a warrant requirement for CSLI, and consequently, the military judge here did not require the government to show probable cause before ordering the cell phone company to turn over appellant’s CSLI; although after appellant’s trial, the Supreme Court determined in US v. Carpenter [138 SCt 2206 (2018)] that the Fourth Amendment’s warrant requirement extended to seven days of historic cell-site location data, whether the information used in appellant’s trial would have violated Carpenter need not be decided, because even it did, it would be admissible under the good faith exception of MRE 311(c)(4); MRE 311(c)(4) codifies the Supreme Court’s holding in Illinois v. Krull[480 US 340 (1987)] and allows the admission of evidence that would otherwise violate the Fourth Amendment if the official seeking the evidence acted in an objectively reasonable reliance on a statute later held invalid under the Fourth Amendment; here, the military judge relied on the SCA to order a cell phone company to produce the CSLI, and because the SCA did not require a warrant, and it was objectively reasonable to rely on it, MRE. 311(c)(4) rendered the evidence admissible).    

United States v. Rich, 79 M.J. 472 (while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge). 

(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; stated another way, 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).    

(in the context of findings instructions, a mere failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes forfeiture; but, when counsel affirmatively declines to object and offers no additional instructions, counsel expressly and unequivocally acquiesces to the military judge’s instructions, and his actions thus constitute waiver).

(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). 

United States v. Davis, 79 M.J. 329 (whether an appellant has waived an issue is a legal question that an appellate court reviews de novo; 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; consequently, 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 it to correct on appeal). 

(failure to object to an instruction or to omission of an instruction before members close to deliberate constitutes forfeiture of the objection; however, where appellant does not just fail to object but rather affirmatively declines to object to the military judge’s instructions, i.e., by expressly and unequivocally acquiescing to the military judge’s instructions, and offers no additional instructions, appellant waives all objections to the instructions, including in regards to the elements of the offense). 

(panel instructions are analyzed for plain error based on the law at the time of appeal; an appellate court generally only reviews the matter for plain error when a new rule of law exists, as an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal). 

United States v. Easterly, 79 M.J. 325 (in this case, where the government introduced evidence at trial on the merits that a Formal Physical Evaluation Board recommended that the accused be permanently retired with a 100% disability rating based on a schizophrenia diagnosis, and both parties referred to the accused’s disability rating multiple times throughout their findings arguments, the military judge did not commit any error, let alone plain and prejudicial error, by failing to instruct the panel sua sponte regarding the impact of a punitive discharge on the accused’s potential permanent disability retirement, where the accused did not request such an instruction; without a request for the instruction, the military judge had no sua sponte duty to give it and there was no error). 

(failure to object to omission of an instruction on sentencing constitutes forfeiture of the objection, and forfeited issues are reviewed by an appellate court for plain error). 

(plain error requires showing: (1) error; (2) the error was clear or obvious; (3) the error prejudiced the accused’s substantial rights). 

2018 (October Term)

United States v. Coleman, 79 M.J. 100 (multiplicity claims are forfeited by failure to make a timely motion to dismiss, unless they rise to the level of plain error). 

(for an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused; relief is only available to an appellant when all three of these prongs are satisfied). 

United States v. Voorhees, 79 M.J. 5 (an appellate court reviews prosecutorial misconduct and improper argument de novo, and where no objection is made, it reviews for plain error).

(the burden of proof under plain error review is on the appellant; plain error occurs when (1) there is error, (2) the error is clear or obvious, and (3) the error results in material prejudice to a substantial right of the accused).

(in reviewing whether argument that was not objected to is improper, an appellate court must determine: (1) whether trial counsel’s arguments amounted to clear, obvious error; and (2) if so, whether there was a reasonable probability that, but for the error, the outcome of the proceeding would have been different).

(where an appellant did not object to a military judge’s failure to instruct the members on a mens rea requirement, an appellate court reviews the issue for plain error).

United States v. Gonzales, 78 M.J. 480 (when an appellant has preserved an objection to a finding of guilty to a lesser included offense, an appellate court reviews the objection de novo; but when an appellant has forfeited such an objection, and raises it for the first time on appeal, an appellate court reviews the issue only for plain error). 

(under plain error review, appellant has the burden of demonstrating that: (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused; for an appellate court to grant relief under this test, all three prongs must be satisfied). 

(in this case, although the military judge erred in finding appellant guilty of aggravated sexual contact with a child as a lesser included offense of rape of a child as those two offenses were defined in the version of Article 120, UCMJ, in force from October 1, 2007, through June 27, 2012, the error was not clear and obvious where other federal courts had reached conflicting conclusions at the time of trial and on appeal on the question of whether a person who commits a rape will necessarily act with the specific intent required for a sexual contact; in addition, at the time of trial, the 2008 edition of the MCM incorrectly identified aggravated sexual contact with a child as a lesser included offense of rape of a child; although the MCM’s listing of lesser included offenses is not controlling, an error in the MCM is a factor in determining whether an issue was subject to reasonable doubt; accordingly, because appellant failed to object to the military judge’s finding at trial and forfeited the issue and because the military judge’s error was not clear and obvious, the military judge’s finding could not be overturned on plain error review). 

United States v. Gleason, 78 M.J. 473 (when 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). 

United States v. Tovarchavez, 78 M.J. 458 (in this case, where appellant failed to object to an MRE 413 propensity instruction at trial, but between the time of trial and final resolution on appeal, the instruction was held to violate appellant’s constitutional right to be presumed innocent, appellant’s failure to object to that instruction constituted forfeiture rather than waiver). 

(consonant with Article 59, UCMJ, for an appellant to prevail under plain error review, there must be an error, that was clear or obvious, and which prejudiced a substantial right of the accused). 

(whether an error, constitutional or otherwise, constitutes plain error is a question of law that an appellate court reviews de novo).

(in cases applying plain error review, the CAAF does not apply the fourth prong of the US v. Olano, 507 U.S. 725 (1993) plain error test (if the three other prongs are satisfied, the appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings; this divergence from federal practice is regularly justified by the differences between Article 59, UCMJ, and Fed. R. Crim. P. 52(b)).

(forfeited errors are subject to plain error review, while preserved errors are not; under Article 59, UCMJ, all errors of law - preserved or not - must have prejudiced an appellant’s rights, and the test employed to determine prejudice depends on the nature of the right). 

United States v. McDonald, 78 M.J. 376 (under the plain error standard, relief will only be granted by an appellate court where (1) there was error that was (2) clear or obvious, and that (3) materially prejudiced a substantial right of the accused).

United States v. Briggs, 78 M.J. 289 (in federal courts governed by the Federal Rules of Criminal Procedure, a statute of limitations defense is not jurisdictional and therefore the defense becomes part of a case only if the defendant puts the defense in issue; accordingly, when a defendant does not press the defense, then there is no error for an appellate court to correct and certainly no plain error; in a court-martial, however, because RCM 907(b)(2)(B) requires the military judge to inform the accused of the right to assert the statute of limitations when it appears that the accused is unaware of the right, this rule makes the statute of limitations part of a case whenever the accused has a statute of limitations defense and does not appear to know it; therefore, an appellate court can review an appellant’s failure to raise the statute of limitations at trial for plain error). 

(to establish plain error, appellant must show (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; plain error is assessed at the time of appeal).

(in this case, appellant can successfully raise a statute of limitations defense for the first time on appeal where (1) the statute of limitations for a rape committed in 2005 was five years, (2) as assessed in hindsight on appeal, for the military judge not to have informed appellant of the five-year period of limitation when the sworn charges against him were received by the summary court-martial convening authority in 2014, it was clear and obvious error, and (3) this clear and obvious error warranted relief because the error resulted in material prejudice to appellant’s substantial rights; if the military judge had informed appellant of a possible statute of limitations defense, it would have required no speculation to believe that appellant would have sought dismissal).

United States v. Hale, 78 M.J. 268 (where there was no objection to an instruction at trial, an appellate court reviews for plain error). 

(under plain error review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim).   

United States v. Bodoh, 78 M.J. 231 (where appellant did not object to trial counsel’s misstatements of law or references to the SHARP program at trial, an appellate court reviews for plain error; to prevail, appellant bears the burden of establishing (1) error, (2) that is clear or obvious, and (3) results in material prejudice to a substantial right of the accused; all three prongs must be satisfied; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different). 

(in this case involving an allegation of sexual assault, the trial counsel’s argument to the members that they could consider their SHARP training in finding appellant guilty, was improper where the training reference was not based on evidence adduced at trial; however, where this reference was fleeting and vague, the trial defense counsel did not object to it, and the military judge provided ameliorative instructions to the members that (1) an intoxicated individual can still consent to sexual activity, (2) argument by counsel is not evidence, and (3) an accused may be convicted based only on evidence before the court, appellant failed to establish a reasonable probability that, absent the error, the results of the trial would have been different; accordingly, trial counsel’s passing reference to training did not constitute plain error).

2017 (October Term)

United States v. Jones, 78 M.J. 37 (when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error). 

(in this case, appellant did not intentionally relinquish or abandon a Confrontation Clause objection to the admission of a statement made by his co-conspirator to a CID agent where, considering the particular circumstances, there was no strategic reason for trial defense counsel to object to the statement as hearsay and not also object to the statement on Confrontation Clause grounds; accordingly, an inference can be made that the failure to make the Confrontation Clause objection was unintentional; thus, appellant forfeited the objection rather than waived it and the issue is reviewed for plain error).

(plain error occurs where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused). 

(when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt). 

United States v. Armstrong, 77 M.J. 465 (while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge). 

(where trial defense counsel, in response to the military judge’s inquiry as to whether assault consummated by a battery was a lesser included offense of abusive sexual contact, failed to make known both the defense’s position and the basis for it, appellant did not preserve the issue, the issue was forfeited, and the issue is reviewed for plain error). 

(in cases of forfeiture, an appellate court reviews for plain error). 

(under plain error review, the appellant has the burden of demonstrating (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; under this standard, even if there was an error, no relief is warranted unless the appellant can show the second and third requirements). 

United States v. Williams, 77 M.J. 459 (where constitutional instructional error is preserved, an appellate court tests for harmlessness; however, if the accused fails to preserve the instructional error by an adequate objection or request, the court tests for plain error).    

(an accused cannot always rely on a motion in limine to preserve an issue for appellate review absent further objection; in this case, where appellant’s motion in limine was not yet ripe and he did not renew his objection when afforded the opportunity to do so, an appellate court reviews for plain error; and to establish plain error, an appellant must demonstrate (1) error, (2) that is clear or obvious at the time of appeal, and (3) prejudicial). 

United States v. Hardy, 77 M.J. 438 (under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver).

(when an appellant has forfeited an issue, an appellate court may review the issue for plain error, but when an appellant has waived an issue, it cannot review it at all). 

(it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection). 

United States v. Andrews, 77 M.J. 393 (an appellate court reviews prosecutorial misconduct and improper argument de novo; if no objection is made, the appellant has forfeited his right to appeal and an appellate court reviews for plain error; the burden of proof under plain error review is on the appellant). 

(notwithstanding the RCM 919(c) language that the failure to object to improper argument before the military judge begins to instruct the members on findings shall constitute waiver of the objection, an appellate court reviews unobjected to prosecutorial misconduct and improper argument 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 to a substantial right of the accused). 

(it is not the number of legal norms violated but the impact of those violations on the trial which determines the appropriate remedy for prosecutorial misconduct; in assessing prejudice, 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; it weighs three factors to determine whether trial counsel’s improper arguments were prejudicial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction; the third factor alone may so clearly favor the government that the appellant cannot demonstrate prejudice). 

United States v. Robinson, 77 M.J. 294 (where appellant did not object to the military judge’s instructions at trial, any error in the instructions is reviewed by an appellate court for plain error based on the law at the time of appeal).

(an appellant bears the burden of establishing plain error, and he establish the following three prongs: (1) there is error, (2) the error is clear or obvious, and (3) the error materially prejudiced a substantial right; the third prong is satisfied if the appellant shows a reasonable probability that, but for the error claimed, the outcome of the proceeding would have been different).

(in this case, the military judge did not plainly err in instructing the members on the Article 92, UCMJ, prohibited relationship offense; even if one were to assume without deciding that “recklessness,” or even “knowledge,” was the appropriate mens rea for this Article 92, UCMJ, offense and that the military judge erred in failing to instruct the panel accordingly, appellant failed to meet his burden of showing that but for this error, the outcome of the proceeding would have been different, where (1) it was uncontroverted that appellant, then an E-5 NCO, knew he was attending a party with junior enlisted soldiers, knew he was the only NCO at the party, knew that four of the junior enlisted soldiers at the party were in the same company as he, knew that all of the junior enlisted members were drinking alcohol, including at least one who was underage, knew that one of the junior enlisted members was intoxicated; and knew the NCO’s creed and the standards for NCOs; therefore, even if the military judge had provided the panel members with an appropriate mens rea instruction, it is clear that the panel would have found that appellant knew that his presence as an E-5 compromised, or appeared to compromise, the integrity of supervisory authority, caused actual or perceived partiality, or created a clearly predictable adverse impact on authority).  

United States v. Blanks, 77 M.J. 239 (where appellant did not object at trial to the military judge’s negligent dereliction of duty instruction on the basis that negligence is not an authorized level of mens rea for an Article 92(3), UCMJ, dereliction of duty offense, an appellate court reviews the instruction for plain error). 

United States v. Guardado, 77 M.J. 90 (when an accused fails to object to a military judge’s propensity instruction at trial, an appellate court reviews for plain error). 

(plain error occurs when: (1) there was error, (2) such error was clear or obvious, and (3) the error materially prejudiced a substantial right of the accused). 

(the burden lies with an appellant to establish plain error). 

(an appellate court tests unobjected-to instructions for plain error based on the law at the time of appeal). 

2016 (October Term)

United States v. Oliver, 76 M.J. 271 (typically, a trial defense counsel’s affirmative assertion at a court‑martial that he had no objection to the military judge considering a lesser included offense to a charged offense would constitute waiver of the issue as to whether the offense was in fact a lesser included one; however, in this case, given the seemingly unsettled nature of the law at the time of his court-martial and its clear resolution in his favor at the time of his appeal, forfeiture rather than waiver applied). 

(when an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error).

(under the plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; failure to establish any one of the prongs is fatal to a plain error claim).   

(in this case, where the military judge committed plain or obvious error in considering wrongful sexual contact as a lesser included offense of the charged offense of abusive sexual contact, appellant was not prejudiced and the error did not rise to the level of plain error where appellant was on notice as to what conduct he was charged with and where his theory throughout the court-martial was that his alleged victim had consented to the sexual activity). 

United States v. Feliciano, 76 M.J. 237 (where appellant failed to object at trial to the military judge’s failure to instruct panel members on the affirmative defense of voluntary abandonment, the issue was forfeited and an appellate court reviews the matter for plain error). 

(on plain error review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim). 

(where appellant failed to establish that the military judge erred in not instructing on the voluntary abandonment defense, the plain error test was not met). 

United States v. Davis, 76 M.J. 224 (to the extent that US v. Taylor, 26 MJ 127 (CMA 1988), can be read to suggest that plain error review is never appropriate in the context of a required instruction where there was no objection, it is contrary to the great weight of authority, and is overruled). 

(where appellant failed to object to the omission of a required instruction on a special defense, an appellate court reviews the military judge’s instructions for plain error). 

(forfeiture is the passive abandonment of a right by neglecting to preserve an objection, whereas waiver is the affirmative, intentional relinquishment or abandonment of a known right; forfeiture results in plain error review, but waiver leaves no error for an appellate court to correct on appeal). 

(if a military judge omits a required instruction that is reasonably raised by the evidence, the accused may preserve the instructional error either by making an adequate objection or by requesting an instruction in a way that sufficiently signals to the military judge the existence of an error in need of correction).

(where required instructional error is preserved, an appellate court tests for harmlessness; however, if an accused fails to preserve the instructional error by an adequate objection or request, an appellate court tests for plain error). 

(the accused may choose to affirmatively waive certain required instructions, extinguishing the claim of error and leaving nothing for an appellate court to correct on appeal). 

(in this case, where appellant did not object to the instructions given or request a mistake-of-fact instruction, the military judge’s failure to give a mistake-of-fact instruction is reviewed for plain error). 

(waiver in the context of required instructions is accomplished by an affirmative action, not a mere failure to object; RCM 920(f), the court-martial rule on waiver of instructions on findings, is a forfeiture provision, not a waiver provision). 

(plain error review is called for when an appellant fails to request an affirmative defense instruction or fails to request any required instruction under RCM 920(e), overruling US v. Taylor, 26 MJ 127 (CMA 1988), to the extent that it can be read to suggest otherwise). 

(under 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). 

(in this case, even assuming that appellant’s statement, “I thought she was joking until I saw her crying,” was some evidence of an honest mistake about consent, there was not an iota of evidence that such a belief was reasonable, where appellant overwhelmed the victim with physical force, pinned her down, and penetrated her while she repeatedly told him to stop; accordingly, the military judge did not err, let alone plainly err, by omitting mistake of fact as to consent from his instructions). 

United States v. Haverty, 76 M.J. 199 (because appellant did not object to the military judge’s failure to instruct the members on a mens rea requirement for the offense of hazing under Article 92, UCMJ, the issue is reviewed by an appellate court for plain error; furthermore, panel instructions are analyzed for plain error based on the law at the time of the appeal). 

(with respect to the third prong of the plain error analysis, appellant has the burden of showing that the error had an unfair prejudicial impact on the members’ deliberations). 

(the military judge committed plain error in this case by not instructing the panel that the proper mens rea standard required for an Article 92, UCMJ, violation of Army Regulation 600-20, prohibiting hazing was recklessness; there was error, the error was clear or obvious, and appellant met his burden of showing that the error had an unfair prejudicial impact on the members deliberations; not only did the military judge not instruct the panel that it must find appellant acted with a mens rea of recklessly, the military judge did not instruct the panel that it needed to find any mens rea at all; as such, based on the military judge’s instructions, it may be presumed that the panel applied a general intent analysis whereby appellant’s knowledge of his commission of the actus reus alone was sufficient to determine guilt; because appellant contested the issue of intent in this case, the military judge’s error had an unfair prejudicial impact on the members’ deliberations and appellant demonstrated material prejudice to a substantial right).

United States v. Rosario, 76 M.J. 114 (it is not plain error for a military judge to instruct panel members, without objection, that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty).   

United States v. Pabelona, 76 M.J. 9 (where a defense counsel fails to object to the arguments of trial counsel at the time of trial, an appellate court reviews for any error for plain error; and the standard for plain error review requires 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; the burden lies with appellant to establish plain error). 

United States v. Gomez, 76 M.J. 76 (where appellant did not object to the testimony of sentencing witnesses, an appellate court applies a plain error framework in addressing the admissibility of that evidence).

(for an appellant to establish plain error, he bears the burden of establishing the following three prongs: (1) there was error; (2) the error was clear or obvious; and (3) the error materially prejudiced a substantial right; as all three prongs must be satisfied, the failure to establish any one of the prongs is fatal to a plain error claim).

United States v. McClour, 76 M.J. 23 (it is not plain error for a military judge to instruct panel members that if, based on their consideration of the evidence, they are firmly convinced that the accused is guilty of the offense charged, they must find him guilty).    

(where there was no objection to an instruction at trial, an appellate court reviews that instruction for plain error). 

(with respect to plain error, an appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights; the failure to establish any one of the prongs is fatal to a plain error claim; and in determining whether an error is clear or obvious, an appellate court looks to law at the time of the appeal). 

(in this case, where the judge instructed the members that if, based on their consideration of the evidence, they were firmly convinced that the accused was guilty of the offense charged, they must find him guilty, this was not a directed verdict; the military judge reiterated that the panel members were the ones to determine guilt or innocence by weighing and evaluating the evidence and using their own common sense, their own knowledge of human nature and the ways of the world; when taken as a whole, the instructions clearly stated the proper burden of proof and left it to the members to determine whether the government’s evidence met that burden; nothing more was required; as such, it cannot be said that any error (if error there were) on the military judge’s part in using the word “must” in his burden of proof instruction was clear or obvious, and accordingly, appellant failed to establish plain error). 

2015 (September Term)

United States v. Caldwell, 75 M.J. 276 (in this case, the military judge did not commit plain error when he provided instructions to the general court-martial panel with respect to the offense of maltreatment of a subordinate given that his instructions properly emphasized general intent, even though the relevant instructions were less-than-explicit with respect to mens rea; here, the military judge defined maltreatment as action that when viewed objectively under all the circumstances: (a) is abusive or otherwise unwarranted, unjustified, and unnecessary for any lawful purpose; and (b) results in physical or mental harm or suffering, or reasonably could have caused, physical or mental harm or suffering; the military judge also explained that Article 93, UCMJ, imposes liability for conduct that constitutes assault or sexual harassment, defining sexual harassment as influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and further noting that sexual harassment also includes deliberate or repeated offensive comments or gestures of a sexual nature; finally, the military judge stated that for sexual harassment to constitute maltreatment, the accused’s conduct must, under all of the circumstances, constitute maltreatment as was previously defined; because the military judge repeatedly made clear that the panel members were required to consider appellant’s conduct under all the circumstances, these instructions could reasonably be understood as requiring the panel members to determine whether appellant knew that the alleged victim was subject to his orders and knew that he was making statements or was engaging in other conduct in respect to that alleged victim, i.e., whether appellant possessed the requisite general intent mens rea; accordingly, there was not a sufficient basis to conclude that the military judge’s instructions were erroneous). 

United States v. Killion, 75 M.J. 209 (while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge). 

(while requesting an instruction is ordinarily not sufficient to preserve a claim of error, where as in this case, defense counsel’s requested instruction, complete with citation to supporting legal authority, was specifically tailored to the circumstances presented and gave the military judge the opportunity to correct any error in his panel instructions at trial, and where the military judge demonstrated his awareness of defense counsel’s specific grounds for the alternative instruction, flatly disagreed with him, and there was no indication that further objection was likely to be successful, then on those facts, the issue of instructional error was not forfeited). 

2014 (September Term)

United States v. Akbar, 74 M.J. 364 (where trial defense counsel did not raise objections to the witness testimony or to the trial counsels’ argument during the court-martial, he forfeited appellate review of these issues absent plain error; to prevail under the plain error standard, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights). 

(assuming that trial counsel’s arguments were improper, in the plain error context, an appellate court determines whether the cumulative effect of an improper sentencing argument impacted the accused’s substantial rights and the fairness and integrity of his trial; this inquiry examines whether trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that the appellant was sentenced on the basis of the evidence alone). 

(the fact that trial defense counsel did not see fit to object to trial counsel’s sentencing argument is some measure that the argument had minimal impact). 

2013 (September Term)

United States v. Treat, 73 M.J. 331 (when counsel fails to object at trial, an appellate court reviews a military judge’s findings by exceptions and substitutions for plain error; under plain error review, 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). 

United States v. Knapp, 73 M.J. 33 (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; a timely and specific objection is required so that the court is notified of a possible error, and so has an opportunity to correct the error and obviate the need for appeal; to be timely, an objection must normally be made before the answer is given, although some courts permit objections or motions to strike immediately after the answer). 

(with respect to plain error standard of review, appellant has the burden of establishing (1) error that is (2) clear or obvious and (3) results in material prejudice to his substantial rights). 

(under the plain error standard of review, in determining whether an error was clear or obvious, appellate court looks to law at the time of the appeal).
 
(because the condemnation of human lie detector testimony easily predated appellant’s trial, the error in this case was clear or obvious). 

(under the plain error standard of review, an obvious error materially prejudices the substantial rights of the accused when it has an unfair prejudicial impact on the court members’ deliberations). 

United States v. Payne, 73 M.J. 19 (where there is no objection to an instruction at trial, an appellate court reviews for plain error). 

(a generalized objection to an instruction is insufficient to preserve a specific objection on appeal). 

(appellant’s general objection at trial to the military judge’s instructions on the elements of the offenses failed to preserve any instructional error and waived any instructional issue in the absence of plain error). 

(under 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 a military judge’s instructions did not include the third element of attempt, the error is plain and obvious). 

(a military judge’s failure to instruct on the fourth element of attempt constitutes plain and obvious error).

United States v. Warner, 73 M.J. 1 (when not objected to at trial, defects in an indictment are reviewed for plain error). 

(under plain error review, 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). 

(at a minimum, an error is plain when it is obvious or clear under current law).    

2012 (September Term)

United States v. Gaskins, 72 M.J. 225 (in the absence of waiver, where defects in a specification are raised for the first time on appeal, dismissal of the defective specification will depend on whether there is plain error - which, in most cases, will turn on the question of whether the defective specification resulted in material prejudice to appellant’s substantial right to notice). 

(in this case, it was plain and obvious error for the government not to allege the terminal element in the specifications under Article 134, UCMJ, alleging indecent acts with a child and indecent assault; even though evidence of the bad acts themselves may have been legally sufficient to prove the terminal element at trial, where the government failed to allege the terminal element, mention it during trial, or put on independent evidence of it, and appellant did not defend against it, appellant suffered material prejudice to his substantial right to notice and to defend himself; the argument that an accused is not prejudiced by the government’s failure to allege the terminal element because it is intuitive that the bad acts discredited the military runs contrary to long-established principles of fair notice; suggesting that there was no prejudice because the predicate acts were intuitively prejudicial to good order and discipline and service discrediting fails to recognize Article 134, UCMJ’s terminal element for what it is – a discrete element of a criminal offense; here, no direct evidence was put on to prove the terminal element; neither clause 1 nor 2 was directly or indirectly mentioned by either party until the military judge instructed the members on the elements of the Article 134, UCMJ, specifications, nor did the government proffer any physical evidence or witness testimony as to how appellant’s acts might have affected either his unit or the public’s opinion of the armed forces, nor did the defense indicate that they knew they were defending against either theory of liability; under these circumstances, both appellant and the appellate court lack knowledge of a matter of critical significance - namely, on which theory of criminality appellant was tried and convicted; because appellant was never given notice of the theory of criminality the government pursued, and no evidence was introduced on any theory, the errors in the Article 134, UCMJ, specifications were not cured; the government’s failure to allege the terminal element was thus plain and obvious error that materially prejudiced Appellant’s substantial right to notice under the Fifth and Sixth Amendments as to which theory or theories of liability under Article 134, UCMJ, he needed to defend himself against). 

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). 

(upon plain error review, to prove that Article 134, UCMJ - a facially constitutional criminal statute - is unconstitutional as applied to him, appellant must point to particular facts in the record that plainly demonstrate why his interests should overcome Congress’ and the President’s determinations that his conduct be proscribed; put another way, to show that a facially constitutional statute is unconstitutional as applied to a particular individual, the individual must develop facts at trial that show why his interest should overcome the determination of Congress and the President that the conduct be proscribed).    

(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). 

(the government’s failure to plead the terminal element in an indecent act offense charged under Article 134, UCMJ, was plain and obvious error). 

United States v. Tunstall, 72 M.J. 191 (where there was no objection to an instruction at trial, an appellate court reviews for plain error; under 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 failed to object to an adultery specification at trial for its failure to state an offense because it did not allege the terminal element, an appellate court reviews the claim on appeal for plain error). 

(plain error review in the CAAF is governed by Article 59(a), UCMJ, and not by Fed R Crim P 52(b); the key difference between these two sources of law is that Fed R Crim P 52(b) is an enabling rule conferring discretion upon the reviewing court (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”), whereas Article 59(a) is a restricting rule (“A finding or sentence of a court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused.”); the CAAF has consistently rejected application of the fourth prong (if the three other prongs are satisfied, an appellate court has the discretion to remedy the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings) of Olano (507 US 725 (1993)), when addressing questions under Article 59(a), UCMJ, and does not intend to revisit that practice here). 

(failure to allege the terminal element in an Article 134 adultery specification constitutes plain and obvious error, and resolution of the case will depend upon whether the error has prejudiced the substantial rights of the accused; 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; in making this inquiry, the court is limited to considering evidence contained in the trial record). 

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). 

(it was not plain error to admit a chart demonstrating the differences in basic allowance for housing rates and cost of living allowances for different locations under MRE 1006, a rule allowing information to be presented in the form of a chart or summary, even if the information on which the chart was based was not admissible, as the chart might have been admitted under the expert witness exception because the figures depicted on the chart were reasonably relied upon by the expert in personal administration matters who compiled the information from the DFAS website and appellant’s LESs; because the chart was not clearly inadmissible, in the absence of a more specific objection than foundation and some indication on the record that the foundational elements of MRE 1006 were not met, there was no plain error in admitting it). 

United States v. Harcrow, 66 M.J. 154 (the first limitation on appellate authority under Fed. R. Crim. P. 52(b) (the federal plain error rule), on which MRE 103(d) (the military plain error rule) is partially based, is that there indeed be an error; deviation from a legal rule is error unless the rule has been waived; 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; whether a particular right is waivable, whether appellant must participate personally in the waiver, whether certain procedures are required for waiver, and whether appellant’s choice must be particularly informed or voluntary, all depend on the right at stake; mere forfeiture, as opposed to waiver, does not extinguish an error under Rule 52(b)).

 
(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).

 (in determining whether an error is plain or obvious, the Supreme Court has stated that where the law at the time of trial was settled and clearly contrary to the law at the time of appeal -- it is enough that an error be plain at the time of appellate consideration; thus, in undertaking a plain error analysis, an appellate court will consider whether the error was obvious at the time of appeal, not whether it was obvious at the time of the court-martial). 

 
(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. Schroder, 65 M.J. 49 (in child molestation case, although trial counsel erred in arguing that the members should render justice for the purported victim of uncharged misconduct which was admitted as propensity evidence, appellant failed to meet his burden of establishing plain error, where the inappropriate argument was limited, the government’s case was strong, and the evidence regarding the purported victim of uncharged misconduct was already graphically and appropriately before the members -- all factors suggesting that it was the evidence and not trial counsel’s isolated comments that caused the members to return a guilty verdict; in addition, the adjudged confinement was well below both the maximum authorized and that requested by the trial counsel -- a factor suggesting that the members were not inflamed by trial counsel’s argument and instead reached an independent judgment on sentencing; based on these factors, the improper portion of trial counsel’s argument did not sway the findings or the sentence). 

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.). 

United States v. Hardison, 64 M.J. 279 (plain error is established 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).   

(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).