TRIAL STAGES: Appeals: Standards of Review, Burdens, etc.

2023 (October Term)

United States v. Brown, 84 M.J. 124 (an appellate court reviews questions of legal sufficiency de novo; in reviewing for legal sufficiency, the court considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).

(an appellate court reviews questions of statutory construction de novo; it is axiomatic that in determining the scope of a statute, the court looks first to its language; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; of note, the court is not bound by the President's interpretation of the elements of substantive offenses; nonetheless, when the President's narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and the court will not normally disturb that construction).

2022 (October Term)

United States v. Warda, 84 M.J. 83 (a military judge's failure to abate proceedings is reviewed by an appellate court for an abuse of discretion; the abuse of discretion standard calls for more than a mere difference of opinion, but instead occurs when the military judge's findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; absent clear error, an appellate court are bound by the military judge's findings of fact).

(a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).

United States v. Harrington, 83 M.J. 408 (an appellate court reviews the legal sufficiency of convictions de novo; a conviction is legally sufficient if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable  doubt; and because the appellate court may impinge upon the panel’s discretion only to the extent necessary to guarantee the fundamental protection of due process of law, it imposes a very low threshold to sustain a conviction). 

(credibility determinations are uniquely the province of the trier of fact, and an appellate court will not disturb an appellant’s conviction on this ground).

(an appellate court reviews a military judge’s denial of a proposed instruction for an abuse of discretion). 

(generally, a military judge has substantial discretionary power in deciding on the instructions to give in response to requests by counsel; in the specific context of a military judge’s denial of a requested instruction, an abuse of discretion will occur if: (1) the requested instruction was correct; (2) the instruction was not substantially covered by the main instruction; and (3) the instruction was on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its presentation; more generally, however, any legal ruling based on an erroneous view of the law also constitutes an abuse of discretion). 

(an appellate court reviews a military judge’s interpretation of RCM 1001 (presenting procedure) de novo). 

(an appellate court reviews a military judge’s admission of an unsworn victim statement for an abuse of discretion; and a military judge abuses his discretion when his legal findings are erroneous, or when he makes a clearly erroneous finding of fact). 

(to determine prejudice when errors occur during sentencing, the fundamental question is ‘whether the error substantially influenced the adjudged sentence).   

(to evaluate prejudice when a military judge erroneously denies a requested instruction, an appellate court tests for harmless error). 

(in the sentencing context, harmless error analysis requires an appellate court to determine whether the error substantially influenced the sentence proceedings such that it led to the appellant’s sentence being unfairly imposed). 

(when an appellate court finds error in the admission of sentencing matters, the test for prejudice is ‘whether the error substantially influenced the adjudged sentence, and the government bears the burden of showing the error was harmless, but need not show harmlessness beyond a reasonable doubt; generally, an appellate court considers the four factors in making this determination: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; and finally, an appellate court reviews these four factors de novo). 

United States v. Gilmet, 83 M.J. 398 (an appellate court reviews allegations of UCI de novo). 

(an appellate court accepts as true the military judge’s findings of fact on a motion to dismiss for UCI unless those findings are clearly erroneous). 

United States v. Cunningham, 83 M.J. 367 (interpreting RCM 1001A (now RCM 1001(c) – crime victim’s right to be reasonably heard) is a question of law that an appellate court reviews de novo). 

(an appellate court reviews a military judge’s decision to accept a victim impact statement offered pursuant to RCM 1001A (now 1001(c)) for an abuse of discretion). 

(when an appellate court finds error in the admission of sentencing evidence (or sentencing matters), the test for prejudice is whether the error substantially influenced the adjudged sentence). 

(the government bears the burden of demonstrating that the admission of erroneous evidence was harmless) 

(an appellate court considers four factors when deciding whether an error substantially influenced an appellant’s sentence:  (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; and this analysis is conducted de novo). 

( it is highly relevant when analyzing the effect of error on the sentence that the case was tried before a military judge, who is presumed to know the law). 

(although matters are material if they have some logical connection with the facts of the case or the legal issues presented, an error is more likely to have prejudiced an appellant if the information conveyed as a result of the error was not already obvious from what was presented at trial). 

(the quality of the evidence may be assessed by its tendency, if any, to influence the sentencing authority).

(military judges are presumed to know the law and follow it absent clear evidence to the contrary). 

(whether an appellant has waived an issue is a legal question that this Court reviews de novo). 

M.W. v. United States, 83 M.J. 361 (an appellate court considers de novo the question of whether it has jurisdiction). 

(like all federal courts, a military appellate court has an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party). 

United States v. Smith, 83 M.J. 350 (an appellate court reviews a military judge’s ruling admitting or excluding an excited utterance for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range; where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; on the contrary, if a military judge fails to place his findings and analysis on the record, less deference will be accorded). 

(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).

(an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in reviewing legal sufficiency, an appellate court draws every reasonable inference from the evidence of record in favor of the prosecution; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction). 

United States v. Anderson, 83 M.J. 291 (to succeed in a due process challenge to a statutory court-martial procedure, an appellant must demonstrate that the factors militating in favor of a different procedure are so extraordinarily weighty as to overcome the balance struck by Congress). 

(when Congress acts pursuant to its power to make rules for the government and regulation of the land and naval forces, judicial deference is at its apogee). 

(the threshold question in equal protection analysis is whether the groups treated differently by the law are similarly situated; distinctions between similarly situated groups must satisfy the rational basis test unless the distinction implicates either a suspect class or a fundamental right, in which case strict scrutiny applies).

(under the rational basis test in an equal protection analysis of Article 52, UCMJ, an appellate court must presume that Article 52, UCMJ, is constitutional and the burden falls on appellant to rebut every conceivable basis which might support it).  

United States v. Witt, 83 M.J. 282 (improper argument involves a question of law that an appellate court reviews de novo). 

(the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused). 

(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). 

(even if an appellate court were to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, i.e., resulted in prejudice). 

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel's comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

(where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that appellant was sentenced on the basis of the evidence alone). 

(in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at 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; how much weight to give each factor has not been determined, but if the third factor so overwhelmingly favors the government, it is sufficient to establish lack of prejudice). 

United States v. Mays, 83 M.J. 277 (questions about the meaning of statutes, including the meaning of the UCMJ’s punitive articles, are questions of law that an appellate court reviews de novo). 

(an appellate court reviews de novo the legal sufficiency of the evidence to support a finding that an accused is guilty of an offense, and the evidence is legally sufficient if any rational factfinder could have found all essential elements of the offense beyond a reasonable doubt; and in determining whether the evidence is legally sufficient, the court must draw every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Kim, 83 M.J. 235 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo). 

(an appellate court gives the military judge broad discretion in the decision to accept a guilty plea because the facts are undeveloped in such cases). 

(in reviewing a military judge’s decision to accept a guilty plea, an appellate court applies a substantial basis test: Does the record as a whole show a substantial basis in law and fact for questioning the guilty plea?). 

United States v. Shields, 83 M.J. 226 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion). 

(an abuse of discretion occurs when a military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(an abuse of discretion must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

(when reviewing a lower court’s decision on a military judge’s ruling, an appellate court typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the lower court was right or wrong in its examination of the military judge’s ruling). 

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion). 

(the manner in which a warrant is executed is subject to later judicial review as to its reasonableness). 

(instead of attempting to set out bright line rules for limiting searches of electronic devices, the courts have looked to what is reasonable under the circumstances). 

Fink v. Y.B., 83 M.J. 222 (the CAAF must satisfy itself that it has jurisdiction before it can act on a writ-appeal petition, and it decides the question of jurisdiction de novo; if it lacks jurisdiction, it must dismiss the writ-appeal petition; but if it has jurisdiction, it may either grant or deny review of the issues presented in the petition, depending on whether appellant has shown “good cause” for its review). 

United States v. Pullings, 83 M.J. 205 (with respect to how appellate courts should address claims that depend on the truth of factual assertions in post-trial affidavits rather than on findings of fact by a military judge, if the facts alleged in the affidavits allege an error that would not result in relief even if any factual dispute were resolved in appellant’s favor, the claim may be rejected on that basis). 

United States v. Lattin, 83 M.J. 192 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence under MRE 311(a) for an abuse of discretion). 

(an appellate court reviews a military judge’s balancing of relevance against prejudice under MRE 403 for an abuse of discretion). 

United States v. McAlhaney, 83 M.J. 164 (the scope, applicability, and meaning of Article 66(d), UCMJ, is a matter of statutory interpretation that the CAAF reviews de novo). 

(the appropriate standard of review with respect to the wording of an adjudged reprimand is de novo). 

United States v. Behunin, 83 M.J. 158 (the CAAF’s review of decisions by the CCA’s on issues of sentence appropriateness is limited to the narrow question of whether there has been an obvious miscarriage of justice or abuse of discretion; an abuse of discretion occurs when a CCA’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the CCA’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(in reviewing a CCA’s decision in a sentence disparity case, the CAAF examines three questions: (1) whether the cases are closely related; (2) whether the cases resulted in highly disparate sentences; and (3) whether there is a rational basis for the differences in the adjudged sentences).

(an appellant bears the burden of demonstrating that any cited cases are closely related to his or her case; cases are closely related if they fit within at least one of the following three categories: (1) the servicemembers were coactors involved in a common crime; (2) the servicemembers were involved in a common or parallel scheme; or (3) there was some other direct nexus between the servicemembers whose sentences are sought to be compared). 

United States v. Vargas, 83 M.J. 150 (a military judge’s choice of remedy for discovery violations is reviewed by an appellate court for an abuse of discretion; and a military judge abuses her discretion when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(a ruling by a military judge may be affirmed if the ruling reached the correct result for the wrong reason). 

United States v. King, 83 M.J. 115 (an appellate court reviews whether an issue is waived de novo). 

(an appellate court reviews whether a lower court properly attached documents for an abuse of discretion). 

(an appellate court reviews the issue of jurisdiction de novo). 

(an appellate court’s review for prejudice is de novo).    

(an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error). 

(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). 

United States v. St. Jean, 83 M.J. 109 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; this abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(an absence on the record of a military judge’s reasoning does not, by itself, provide a basis for an appellate court finding error; unless there are contrary indications, an appellate court must assume a military judge properly considered an accused’s claim consistent with the law). 

(under the abuse of discretion standard, a military judge’s ruling will be reversed only if his or her findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(an appellate court may affirm a military judge’s ruling if he or she arrived at the correct result, even if for the wrong reason). 

United States v. Pyron, 83 M.J. 59 (a military judge’s ruling on admissibility of evidence is reviewed for abuse of discretion; in order to be overturned on appeal, a military judge’s ruling must be arbitrary, fanciful, clearly unreasonable or clearly erroneous or influenced by an erroneous view of the law). 

United States v. Day, 83 M.J. 53 (whether an appellant has waived an objection is a legal question that an appellate court reviews de novo). 

(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). 

United States v. Thompson, 83 M.J. 1 (a reviewing court must read specific statements in a judicial opinion in context to determine whether the statements are correct). 

2021 (October Term)

United States v. Richard, 82 M.J. 473 (an appellate court reviews issues of legal sufficiency de novo, and in determining whether a conviction is legally sufficient, it asks whether, viewed in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

United States v. Sigrah, 82 M.J. 463 (the Jencks Act (18 USC 3500(b)) requires a district court judge, upon motion by the defendant, to order the government to disclose prior statements of its witnesses that are related to the subject matter of their testimony after each witness testifies on direct examination; RCM 914 tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused; given the similarities in language and purpose between RCM 914 and the Jencks Act, Jencks Act case law of CAAF and that of the Supreme Court informs the analysis of RCM 914 issues).    

(when a military judge errs in denying an RCM 914 motion, an appellate court must determine whether this error prejudiced appellant; the test for prejudice depends on whether the defect amounts to a constitutional error or a nonconstitutional error; an appellate court’s review for prejudice is de novo).

(when there is a preserved nonconstitutional error in the application of RCM 914, an appellate court must determine if the error had a substantial influence on the findings; in conducting the prejudice analysis, the court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

United States v. Black, 82 M.J. 447 (an appellate court reviews a military judge’s decision to suppress evidence for an abuse of discretion; an abuse of discretion occurs when the military judge either applied the law erroneously or clearly erred in making findings of fact; and an abuse of discretion must be more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(the validity of the third party consent to search does not hinge on niceties of property law or on legal technicalities, but is instead determined by whether the third party has joint access or control of the property for most purposes; the burden lies with the government to prove by clear and convincing evidence that a third party has joint access and control to the degree that such control confers a right to consent to search; the degree of control a third party possesses over property is a question of fact, and whether that control is sufficient to establish common authority is a question of law). 

(when the government unlawfully obtains evidence, that evidence may still be admissible if the evidence would have been obtained even if such unlawful search or seizure had not been made; to prevail under this doctrine, the government must prove by a preponderance of the evidence that at the time of the unlawful search, government agents were already taking actions or pursuing leads such that their simultaneous actions and investigations would have inevitably led to the discovery of the evidence even absent the unlawful conduct; an appellate court reviews a military judge’s ruling on the application of the doctrine of inevitable discovery for an abuse of discretion). 

(to determine whether an accused’s voluntary consent to a search is sufficiently attenuated from an earlier unlawful search, three factors are assessed: (1) the temporal proximity of the unlawful police activity and the subsequent consent; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct; with respect to the third factor, the misconduct need not be outrageous or demonstrate bad motive or intent by the government official; it is sufficient that the misconduct be unnecessary and unwise). 

United States v. Rudometkin, 82 M.J. 396 (the general rule is that a military judge’s determination on a mistrial will not be reversed absent clear evidence of an abuse of discretion). 

(an appellate court need not decide a preliminary issue when it can avoid doing so by assuming the answer). 

(three factors are considered to determine if a remedy is warranted for a judge’s failure to recuse himself: (1) the risk of injustice to the parties in the case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public’s confidence in the judicial process).   

(a military judge abuses his or her discretion when: (1) the military judge predicates a ruling on findings of fact that are not supported by the evidence of record, (2) the military judge uses incorrect legal principles, (3) the military judge applies correct legal principles to the facts in a way that is clearly unreasonable, or (4) the military judge fails to consider important fact). 

United States v. Bench, 82 M.J. 388 (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; waiver usually occurs when there is an intentional relinquishment or abandonment of a known right, but waiver can occur by operation of law). 

(when an appellant fails to raise a Confrontation Clause objection at trial, an appellate court considers the particular circumstances of the case to determine whether there was waiver, but applies a presumption against finding a waiver of constitutional rights). 

United States v. Mellette, 82 M.J. 374 (an appellate court reviews questions regarding the scope of the patient-psychotherapist privilege established by the Military Rules of Evidence de novo). 

(when construing the Military Rules of Evidence, an appellate court applies the standard principles of statutory construction; when the language of a rule is susceptible to only one interpretation, it enforces the rule according to its terms; but when a rule’s language is ambiguous, it interprets that language within the broader context of the rule). 

United States v. Palacios Cueto, 82 M.J. 323 (an appellate court reviews de novo allegations of ineffective assistance of counsel). 

(to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; and as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different). 

(in determining whether an attorney’s conduct was deficient, an appellate court does not simply ask whether the attorney did everything possible that posed little or no risk to the client; instead, the test is whether counsel’s conduct falls within the wide range of reasonable professional assistance). 

(appellate judges must exercise care in determining whether a trial counsel’s statement is improper or has improper connotations; a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations; a statement that might appear improper if viewed in isolation may not be improper when viewed in context; and even if a statement is improper, it may not be sufficiently prejudicial, in the context of the entire trial, to violate the accused’s due process rights). 

(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). 

(the best approach for assessing the prejudice from prosecutorial misconduct involves a balancing of 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). 

(for nonconstitutional errors, an appellate court may grant relief only if the error materially prejudiced the substantial rights of the accused; however, the prejudice analysis is different if the errors involve constitutional rights; if a constitutional error is structural, then reversal is automatic; but if a constitutional error is nonstructural, then the government must prove that the error was harmless beyond a reasonable doubt even on plain error review). 

United States v. Badders, 82 M.J. 299 (an appellate court reviews issues of statutory interpretation and jurisdiction de novo). 

United States v. Tate, 82 M.J. 291 (whether a transcript is substantially verbatim is a question of law that this Court reviews de novo). 

United States v. Horne, 82 M.J. 283 (an appellate court must accept a military judge’s findings of fact unless the findings are clearly erroneous; a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the appellate court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

(an appellate court reviews de novo the legal question of whether the facts establish apparent unlawful command influence). 

(to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than mere allegation or speculation; once the accused meets the some evidence threshold, the burden shifts to the government to prove beyond a reasonable doubt that either: (a) the predicate facts proffered by the appellant do not exist, or (b) the facts as presented do not constitute unlawful command influence; if the government cannot succeed at this step, it must prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding).    

(in applying the apparent unlawful command influence doctrine, an appellate court does not require the parties actually to produce credible evidence that any substantial segment of the general population suffered any loss of confidence in the military justice system; instead, the court simply assesses the aggravating and mitigating facts and circumstances and then decides, in its own estimation, whether the government’s conduct placed an intolerable strain upon the public’s perception of the military justice system). 

(an appellate court must consider all the facts and circumstances in determining whether apparent unlawful command influence occurred and whether an appellant is entitled to relief). 

(an appellate court can find clear error only when there is no evidence to support a finding by the military judge or when, upon reviewing all the evidence, it is left with the definite and firm conviction that a mistake has been committed). 

United States v. Nelson, 82 M.J. 251 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and considers the evidence in the light most favorable to the party that prevailed at trial; a military judge abuses his discretion if ‘his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(the voluntariness of a confession turns on whether an accused’s will has been overborne, and in determining the voluntariness of a confession, an appellate court examines the totality of all the surrounding circumstances by applying a two-part test, looking to both the personal characteristics of the accused as well as the circumstances of the interrogation; regarding personal characteristics, some of the factors taken into account have included the youth of the accused, his lack of education, or his low intelligence; regarding the circumstances of the interrogation, some of the factors taken into account have included the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; there is no requirement that the prosecution prove as part of its initial burden that the accused knew that he had a right to refuse to answer the questions that were put to him). 

United States v. Edwards, 82 M.J. 239 (a military judge’s interpretation of RCM 1001A (2016 ed) (crime victims and presentencing) is a question of law that an appellate court reviews de novo). 

(an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; and a military judge abuses his discretion when his legal findings are erroneous or when he makes a clearly erroneous finding of fact). 

(abuse of discretion is the proper standard of review for determining whether a military judge erroneously admitted an unsworn victim statement under RCM 1001A (2016 ed) (crime victims and presentencing). 

(whether an accused has waived an issue is a question of law that an appellate court reviews de novo). 

(when an appellate court finds error in the admission of sentencing evidence or sentencing matters, the test for prejudice is whether the error substantially influenced the adjudged sentence).

(the government bears the burden of demonstrating that the admission of erroneous evidence was harmless). 

(an appellate court uses a four-factor test to evaluate prejudice when there is a nonconstitutional presentencing error; in deciding whether an error substantially influenced an appellant’s sentence, an appellate court considers de novo (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).

(it is harder for the government to meet its burden of showing that a sentencing error did not have a substantial influence on a sentence than it is to show that an error did not have a substantial influence on the findings where the panel has a binary decision to make with respect to findings (guilty or not guilty), but with respect to sentencing, it has a broad spectrum of lawful punishments that it may adjudge).   

United States v. Givens, 82 M.J. 211 (an appellate court reviews whether an appellant has waived an issue, a question of law, de novo.). 

(an appellate court reviews a military judge’s determination as to whether there was good cause shown to grant review from waiver for an abuse of discretion, and the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; in an appellate court’s review of good cause shown, it routinely analyzes this exception to waiver as a burden upon the moving party). 

United States v. Miller, 82 M.J. 204 (whether a record of trial is complete is a question of law that an appellate court reviews de novo). 

(the standard of review for determining whether post-trial processing was properly completed is de novo). 

(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. Whiteeyes, 82 M.J. 168 (an appellate court reviews a military judge’s decision to admit a statement under MRE 304(c) for an abuse of discretion). 

United States v. Beauge, 82 M.J. 157 (in deciding the correct interpretation of MRE 513, an appellate courts engages in a de novo review of the issue because it is a question of law, and in conducting this de novo review, the court employs principles of statutory construction). 

(one fundamental principle of statutory construction is that the plain language of a rule will control unless it leads to an absurd result). 

(in determining whether statutory language is plain, an appellate court must look to the language itself, the specific context in which that language is used, and the broader context of the rule as a whole; where only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law, that meaning will prevail). 

(the duty-to-report exception contained in MRE 513(d)(3) is facially ambiguous when viewed in isolation; although MRE 513(d)(3) describes the circumstances in which the privilege is vitiated, it does not expressly state the scope and effect of that vitiation; that is, the exception specifies when it applies, but it does not specify in what manner and to what extent it applies; accordingly, an appellate court must interpret it in light of the broader context of the rule; in doing so, the court must keep in mind that the provisions of MRE 513 were crafted to balance the interest of a victim in having private communications protected, the interest of an accused in having potentially exculpatory material disclosed, and the interest of the military in facilitating access to information that bears on the well-being of its servicemembers and the integrity of its operations). 

(an appellate court reviews a military judge’s decision to deny a motion for in camera review of a victim’s psychiatric records under MRE 513(e) for an abuse of discretion). 

(claims of ineffective assistance are reviewed by an appellate court de novo). 

United States v. Guyton, 82 M.J. 146 (an appellate court conducts a de novo review of speedy trial claims; however, it reviews for an abuse of discretion the decision of a military judge to grant a delay, thereby rendering that period of time excludable for speedy trial purposes). 

(an appellate court weighs the following four factors to determine if there is a Sixth Amendment speedy trial violation: (1) the length of the delay; (2) the reasons for the delay; (3) the accused’s demand for a speedy trial; and (4) the prejudice to the accused).    

United States v. Simmons, 82 M.J. 134 (whether a change made to a specification is major or minor is a matter of statutory interpretation that is reviewed by an appellate court de novo). 

United States v. Anderson, 82 M.J. 82 (claims challenging the due process right to a speedy post-trial review and appeal are reviewed by an appellate court de novo). 

(in conducting a post-trial review of whether an appellant’s Article 66, UCMJ, and constitutional rights to timely review have been infringed, an appellate court evaluates the four factors set forth by the Supreme Court in Barker v. Wingo (407 US 514 (1972)) for assessing pretrial speedy trial issues: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; an analysis requires determining which factors favor the government or the appellant and then balancing these factors; no single factor is dispositive, and absence of a given factor does not prevent finding a due process violation).    

United States v. Schmidt, 82 M.J. 68 (whether an appellant has waived an issue is a legal question that an appellate court reviews de novo). 

(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. Hiser, 82 M.J. 60 (where a stipulation of fact has not been withdrawn or stricken, an appellate court accepts the assertions within it as true). 

(an appellate court reviews a military judge’s acceptance of a guilty plea for abuse of discretion; and applying this standard, it must uphold a guilty plea unless there is a substantial basis in law and fact for questioning the plea). 

(the meaning of terms in a statute is a question of statutory interpretation, and an appellate court reviews matters of statutory interpretation de novo).   

(when an accused has pleaded guilty, an appellate court does not review the “evidence” for legal sufficiency for the simple reason that there is no evidence when there is no trial; rather, the appellate court’s task on review is only to determine from any stipulated facts and from the providence inquiry whether the military judge abused his or her discretion in complying with this rule; and in so doing, that court simply must determine whether appellant’s guilty plea has a substantial basis in law and fact). 

United States v. Quezada, 82 M.J. 54 (whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo). 

(an appellate court reviews objections to instructions preserved at trial directly, but reviews objections not raised only for plain error). 

(an appellate court presumes that members follow a military judge’s instructions absent evidence to the contrary). 

United States v. Moratalla, 82 M.J. 1 (because a stipulation of fact is binding on the court-martial and may not be contradicted by the parties, an appellate court accepts as true all of the facts, but not necessarily the legal conclusions, contained in the parties’ stipulation). 

(an appellate court affords military judges significant deference on obtaining an adequate factual basis for a guilty plea, and it grants them substantial leeway in conducting providence inquiries).  

(in determining whether a military judge abused his or her discretion in obtaining an adequate basis for a guilty plea, an appellate court applies the substantial basis test; it asks whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea). 

(an appellate court gives broad discretion to military judges in accepting guilty pleas because it recognizes that facts are by definition undeveloped in such cases). 

(even if a guilty plea is later determined to be improvident, a reviewing court may grant relief only if it finds that the military judge’s error in accepting the plea materially prejudiced the substantial rights of the accused). 

2020 (October Term)

United States v. Becker, 81 M.J. 483 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

(a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; these standards also apply to interlocutory appeals under Article 62, UCMJ). 

(on matters of fact with respect to appeals under Article 62, UCMJ, an appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous; a reviewing court may not find its own facts or substitute its own interpretation of the facts). 

(on an Article 62, UCMJ, appeal, an appellate court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge). 

United States v. Adams, 81 M.J. 475 (deciding whether a statute of limitations has expired is a question of law that an appellate court reviews de novo). 

(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). 

United States v. Brubaker-Escobar, 81 M.J. 471 (CCAs are courts of limited jurisdiction, defined entirely by statute; the scope of that jurisdiction is a legal question that the CAAF reviews de novo).

(the CAAF reviews a CCA’s construction of statutes and executive orders de novo). 

United States v. Hernandez, 81 M.J. 432 (an appellate court reviews a military judge’s denial of a motion to suppress evidence for an abuse of discretion; an abuse of discretion occurs when a military judge’s decision is based on clearly erroneous findings of fact or incorrect conclusions of law}. 

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion at trial). 

(an appellate court reviews a military magistrate’s finding of probable cause for the issuance of a warrant based on whether the magistrate had a substantial basis for concluding that probable cause existed; this review is conducted with great deference to the magistrate’s finding of probable cause because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant). 

(if a law enforcement affidavit on which a magistrate relied included incorrect information, an appellate court should sever that information from the affidavit and examine the remainder to determine if probable cause still exists; if an important fact is omitted from the affidavit, for an appellate court to find that probable cause did not exist, that fact must do more than potentially affect the probable cause determination; it must be necessary to the finding of probable cause). 

(a military judge’s determination that the information in a search authorization application was not false or reckless is a finding of fact that an appellate court may review only for clear error; a finding of fact is clearly erroneous when there is no evidence to support the finding or when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

(credibility determinations are entitled to great deference on appeal and will not be reversed absent a clear abuse of discretion). 

United States v. Navarette, 81 M.J. 400 (the CAAF reviews a CCA’s decision to grant or deny a motion for an RCM 706 inquiry into appellant’s mental status for an abuse of discretion; a court abuses its discretion when its findings of fact are clearly erroneous, its decision is influenced by an erroneous view of the law, or the court’s decision is unreasonable in light of the law and facts).

United States v. Thompson, 81 M.J. 391 (an appellate court reviews a military judge’s ruling on a RCM 914 motion for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect). 

(when a military judge errs in denying a RCM 914 motion, an appellate court determines whether this error prejudiced appellant based on the nature of the right violated).  

United States v. McPherson, 81 M.J. 372 (the questions of which version of the statute of limitations applies to a case and whether the applicable statute of limitations has run are questions of law that an appellate court reviews de novo). 

(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). 

United States v. Long, 81 M.J. 362 (an appellate court reviews de novo the question of whether the evidence was legally sufficient). 

(evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this familiar standard of review gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; in applying this test for legal sufficiency, reviewing courts must remember that findings may be based on direct or circumstantial evidence; and circumstantial evidence is intrinsically no different from testimonial evidence; with both, the jury must use its experience with people and events in weighing the probabilities; if the jury is convinced beyond a reasonable doubt, a reviewing court can require no more). 

(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). 

(where a forfeited constitutional error is clear or obvious, material prejudice under Article 59(a), UCMJ, is assessed using the harmlessness beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction). 

United States v. Willman, 81 M.J. 355 (the scope, applicability, and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation that an appellate court reviews de novo). 

United States v. Jacinto, 81 M.J. 350 (an appellate court reviews a military judge’s decision to deny a motion for a continuance, or to deny a motion for in camera review of records, for an abuse of discretion; as part of this review, the reviewing court examines the military judge’s findings of fact for clear error; the military judge clearly errs when there is no evidence to support the finding, or although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed).    

(when a military judge abuses his discretion denying a continuance or denying in camera review, an appellate court will not grant relief unless the appellant suffers prejudice). 

United States v. Begani, 81 M.J. 273 (whether by his guilty pleas appellant waived the issue of whether subjecting members of the Navy’s Fleet Reserve but not members of the Retired Reserve to UCMJ jurisdiction violated the equal protection component of the Fifth Amendment is a matter reviewed by an appellate court de novo). 

(the question of jurisdiction is a question of law that an appellate court reviews de novo). 

(the constitutionality of a statute is a question of law, and therefore the standard of review of an appellate court is de novo). 

United States v. Steen, 81 M.J. 261 (an appellate court reviews de novo the question whether a nonconstitutional error by a military judge in admitting propensity evidence in violation of MRE 404(b) had a substantial influence on the members’ verdict in the context of the entire case).    

(in assessing whether a nonconstitutional error by a military judge in admitting propensity evidence in violation of MRE 404(b) had a substantial influence on the members’ verdict in the context of the entire case, an appellate court considers four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; in this regard, when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless; conversely, where the evidence doesprovide new ammunition, an error is less likely to be harmless). 

(the government bears the burden of showing that any nonconstitutional error by a military judge in admitting propensity evidence in violation of MRE 404(b) was harmless). 

(an appellate court presumes that court-martial members follow a military judge’s instructions). 

United States v. Proctor, 81 M.J. 250 (an appellate court reviews allegations of unlawful command influence, including allegations of the appearance of unlawful command influence, de novo.). 

(an appellate court accepts as true the military judge’s findings of fact on a motion to dismiss for unlawful command influence unless those findings are clearly erroneous). 

United States v. Castro, 81 M.J. 209 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; in so doing, the court applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea; and in reviewing a military judge’s decision to accept a guilty plea, the court must accept all of the facts in the parties’ stipulation as true). 

United States v. Guinn, 81 M.J. 195 (the CAAF generally reviews a CCA’s actions under Article 66(c), UCMJ, for an abuse of discretion, recognizing that a CCA has broad discretion in conducting its Article 66(c) review, and this includes the review of a CCA’s sentence appropriateness decision; however, the CAAF conducts a de novo review with respect to the scope and meaning of the CCA’s Article 66(c) authority).  

United States v. Harrington, 81 M.J. 184 (an appellate court reviews the decision of whether an accused has received a speedy trial de novo as a legal question, giving substantial deference to a military judge’s findings of fact that will be reversed only if they are clearly erroneous; a finding of fact is clearly erroneous when there is no evidence to support the finding or when although there is evidence to support it, the appellate court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

(an appellate court determines whether an appellant has been denied his right to a speedy trial using the four‑factor test that the Supreme Court established in Barker v. Wingo (407 US 514 (1972)): (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant).    

(in the prejudice analysis of the four-factor speedy trial test, there are three interests that an appellate court considers: (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired). 

(the most serious interest in analyzing the prejudice factor of the four-factor speedy trial test is evaluating the ability of an appellant to assert his or her defense in the event of a retrial or resentencing; this form of prejudice is the most serious because it skews the fairness of the entire system).

United States v. Furth, 81 M.J. 114 (an appellate court conducts a de novo review of ineffective assistance of counsel claims). 

(with respect to a claim of ineffective assistance of counsel, an appellant bears the burden of demonstrating that (a) defense counsel’s performance was deficient, and (b) this deficient performance was prejudicial; and this applies in the context of cases involving guilty pleas; however, the prejudice inquiry is modified to focus on whether the ineffective performance affected the outcome of the plea process; that is, the appellant must establish prejudice by showing that there is a reasonable probability that, but for counsel’s errors, the appellant would not have pleaded guilty and would have insisted on going to trial). 

(the prejudice test for ineffective assistance of counsel objective, which an appellate court reviews de novo). 

(standing alone, an appellant’s post hoc assertions about how he would have pleaded but for his attorney’s deficiencies are not enough to establish prejudice; an appellate court must also look to contemporaneous evidence to substantiate an appellant’s expressed preferences; this is so because the appellant has an incentive to claim, in retrospect, that the result of the plea process would have been different regardless of whether that claim is, in fact, true). 

(in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial).

(in order to satisfy the prejudice requirement of the test for ineffective assistance of counsel, an appellant must show that there is a reasonable probability that, but for the counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

United States v. Tyler, 81 M.J. 108 (improper argument involves a question of law that an appellate court reviews de novo.). 

(if a military judge arrives at the correct result, even if for the wrong reason, an appellate court may affirm the ruling). 

United States v. Mader, 81 M.J. 105 (an appellate court reviews de novo whether consent, or mistake of fact as to consent, is available as a defense). 

United States v. Henry, 81 M.J. 91 (an appellate court reviews a military judge’s ruling admitting or excluding an excited utterance for an abuse of discretion and will only reverse if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law). 

United States v. Scott, 81 M.J. 79 (the question whether an appellant has received ineffective assistance of counsel at trial is a legal issue that an appellate court reviews de novo). 

(when a military judge at a DuBay (17 CMA 147, 37 CMR 411 (1967)), hearing has made findings of fact relevant to the issue of ineffective assistance of counsel, an appellate court accepts the findings as correct unless they are clearly erroneous). 

(an appellate court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies; the object of an ineffectiveness claim is not to grade counsel’s performance; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which will often be so, that course should be followed). 

(in evaluating claims of deficient performance for failing to investigate, an appellate court does not engage in second-guessing tactical decisions that might be characterized as mere Monday-morning quarterbacking). 

United States v. Upshaw, 81 M.J. 71 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion). 

(where there is instructional error with constitutional dimensions, an appellate court tests for prejudice under the standard of harmless beyond a reasonable doubt; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction). 

(with respect to an erroneous propensity instruction, prejudice occurs where a court cannot be certain that the instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence; if it is just certainly possible that an accused was convicted based on properly admitted evidence alone, a Hills error cannot be determined harmless; however, there may be circumstances where the evidence is overwhelming, so an appellate court can rest assured that an erroneous propensity instruction did not contribute to the verdict by tipping the balance in the members’ ultimate determination). 

United States v. Ozbirn, 81 M.J. 38 (the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

(an appellate court will not revive a forfeited argument simply because an appellant gestures toward it in his reply brief). 

United States v. Simpson, 81 M.J. 33 (an appellate court does not automatically accept legal conclusions in a stipulation of facts as true).

(an appellate court must uphold appellant’s guilty plea unless there is a substantial basis in law and fact for questioning the guilty plea). 

(an appellate court reviews an appellant’s legal impossibility argument de novo because the argument concerns an issue of law). 

United States v. Ayala, 81 M.J. 25 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).    

(for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

United States v. Norwood, 81 M.J. 12 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; and a military judge’s decision constitutes an abuse of discretion if his or her findings of fact are clearly erroneous, the decision is influenced by an erroneous view of the law, or the decision is outside the range of choices reasonably arising from the applicable facts and the law). 

(if a military judge did improperly admit evidence, an appellate court evaluates whether the error prejudiced the appellant, weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

(when an accused objects to an improper argument during his court‑martial, an appellate court reviews the issue de novo; in that de novo review, the appellate court determines whether any error materially prejudiced the appellant’s substantial rights under Article 59, UCMJ; in this regard, 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). 
 
(when a trial counsel makes an improper argument during findings, reversal is warranted only when the trial counsel’s comments taken as a whole were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

(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). 

(an appellate court presumes, absent contrary indications, that the panel followed the military judge’s instructions). 

United States v. Brown, 81 M.J. 1 (jurisdiction is a question of law that an appellate court reviews de novo). 

(to determine whether a requested writ is in aid of a lower court’s jurisdiction, an appellate court must first determine the scope and authority for the lower court’s statutory jurisdiction; the second determination concerns whether a requested writ implicates a lower court’s subject-matter jurisdiction over the case or controversy; and to establish subject-matter jurisdiction, a lower court must find that the harm alleged have the potential to directly affect the findings and sentence). 

(an appellate court reads the statutes governing jurisdiction in the military system as an integrated whole, with the purpose of carrying out the intent of Congress). 

United States v. Uribe, 80 M.J. 442 (an appellate court reviews a military judge’s disqualification decision for an abuse of discretion; a military judge’s ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable, or clearly erroneous, and not if an appellate court merely would reach a different conclusion). 

(when a military judge abuses his discretion in denying a recusal motion, an appellate court examines whether, under Liljeberg [486 US 847 (1988)], reversal is warranted; because not every judicial disqualification requires reversal, the Liljeberg standard determines whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system; the first Liljeberg standard examines if there is any specific injustice that the appellant personally suffered; the second factor examines whether granting relief would encourage a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered; and the third factor uses an objective standard by determining whether the circumstances of a case will risk undermining the public’s confidence in the military justice system; although similar to the standard applied in the initial RCM 902(a) analysis, the third factor differs from the initial RCM 902(a) inquiry because it is not limited to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority action, the action of the CCA, or other facts relevant to the Liljeberg test). 

United States v. Bavender, 80 M.J. 433 (an appellate court’s review of a military judge’s suppression ruling is for an abuse of discretion; it reviews the military judge’s factfinding for clear error, and it conducts a de novo review of legal conclusions; the evidence is viewed in a light most favorable to the prevailing party at trial). 

United States v. Chandler, 80 M.J. 425 (the issue of whether an SJA is disqualified from participating in the post-trial review of a case is a question of law which an appellate court review de novo.). 

(in determining whether an SJA is disqualified, an appellate court will consider the action taken, the position of the person that would normally take that action, and the capacity in which the action is claimed to have been taken). 

United States v. Cardenas, 80 M.J. 420 (the scope of an appellate court’s authority is a legal question reviewed de novo). 

(when asked to overrule one of its precedents, an appellate court must analyze the matter under the doctrine of stare decisis). 

United States v. Garcia, 80 M.J. 379 (in Article 62, UCMJ, cases, an appellate court reviews a trial judge’s suppression ruling directly for an abuse of discretion; moreover, it examines the evidence in a light most favorable to the party which prevailed at trial; and when conducting this discretionary review of the trial judge’s suppression ruling, it reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed; an abuse of discretion occurs when a trial judge makes clearly erroneous factual findings or when the trial judge misapprehends the law). 

(in this case, the central question is whether the inclusion of intentionally and recklessly omitted information from the search authorization affidavit would have extinguished probable cause in the search authorization request; and in making this determination, an appellate court must first examine the affidavit and accompanying material as it was presented to the military judge who authorized the search to determine whether probable cause initially existed; it is a fundamental fact that probable cause is not a high bar; an appellate court is simply required to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place; next, the appellate court must consider whether the information that the government deliberately or recklessly omitted from the affidavit served to extinguish probable cause). 

United States v. White, 80 M.J. 322 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion). 

(in both an Article 62, UCMJ, appeal, and any review of a ruling on a motion to suppress, an appellate court views the evidence in the light most favorable to the party that prevailed on the motion at trial). 

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (an appellate court reviews a military judge’s resolution of an accused’s request to excuse and replace his civilian counsel for an abuse of discretion).    

United States v. Bergdahl, 80 M.J. 230 (an appellate court reviews allegations of unlawful command influence de novo). 

(when employing de novo review, an appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings). 

(courts adhere to the plain meaning of any text—statutory, regulatory, or otherwise). 

United States v. Reyes, 80 M.J. 218 (whether an accused was denied his right to a speedy trial under Article 10, UCMJ, is a question of law that an appellate court reviews de novo, deferring to the military judge’s findings of fact unless those findings are clearly erroneous). 

(in an appellate court’s examination of reasonable diligence in bringing the charges to trial under Article 10, UCMJ, it must remain mindful that it is looking at the proceeding as a whole and not mere speed, and it must give substantial deference to the military judge’s findings of fact unless they are clearly erroneous; however, it is the government’s burden to show due diligence, and it is the government’s responsibility to provide evidence showing the actions necessitated and executed in a particular case justified delay when an accused was in pretrial confinement).  

(an appellate court determines whether the prosecution was reasonably diligent in bringing the charges to trial under Article 10, UCMJ, by employing the four-factor test articulated by the Supreme Court in Barker v. Wingo, 407 US 514 (1972): (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant; none of these factors alone are a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial). 

United States v. Blackburn, 80 M.J. 205 (an appellate court reviews de novo whether an accused has waived an issue). 

(when constitutional rights are at issue, an appellate court applies a presumption against finding waiver).

(an appellate court reviews a military judge’s denial of a motion to suppress evidence for abuse of discretion; an abuse of discretion occurs when a military judge’s findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the party that prevailed on the motion). 

(the question whether an affiant who authors a search warrant affidavit provided evidence that was intentionally false or with a reckless disregard for the truth is a question of fact, which an appellate court reviews for clear error; this deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant).

United States v. Armendariz, 80 M.J. 130 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion). 

United States v. Baas, 80 M.J. 114 (an appellate court reviews de novo whether statements are testimonial for purposes of the Sixth Amendment). 

(in determining whether a statement is testimonial, an appellate court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant; in the end, the question is whether, in light of all the circumstances, viewed objectively, the primary purpose of the statement was to create an out-of-court substitute for trial testimony).    

(under Article 59(a), UCMJ, the 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). 

(for nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; the government bears the burden of demonstrating that the admitted evidence was not prejudicial; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; and when assessing the materiality and quality of the evidence, the court considers the particular factual circumstances of each case). 

United States v. Washington, 80 M.J. 106 (under Article 59(a), UCMJ, the government has the burden to persuade an appellate court that the erroneous admission of evidence did not materially prejudice the substantial rights of appellant; for nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; when assessing the materiality and quality of the evidence, an appellate court considers the particular factual circumstances of each case to determine how much the erroneously admitted evidence may have affected the court-martial; and in evaluating the materiality and quality of the evidence, the following non-exhaustive list factors may be considered: the extent to which the evidence contributed to the government’s case, the extent to which instructions to the panel may have mitigated the error, the extent to which the government referred to the evidence in argument, and the extent to which the members could weigh the evidence using their own layperson knowledge). 

United States v. Rice, 80 M.J. 36 (whether a prosecution violates double jeopardy is a question of law that an appellate court reviews de novo). 

United States v. Prasad, 80 M.J. 23 (appellate courts apply the clear law at the time of appeal, not the time of trial). 

(when issues of constitutional dimension are at play, as they are when charged sexual misconduct is improperly used as MRE 413 propensity evidence, the erroneous admission of that evidence and the corresponding instructions to the panel members must be tested for prejudice under the harmless beyond a reasonable doubt standard). 

(an appellate court reviews de novo the issue of whether a constitutional error was harmless beyond a reasonable doubt; and it is the government that bears the burden of proving that a constitutional error is harmless beyond a reasonable doubt). 

(the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence; this standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction; on the other hand, where a court cannot be certain that the erroneous propensity instruction did not taint the proceedings or otherwise contribute to the defendant’s conviction or sentence, there is prejudice).

(in analyzing whether a Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt, both the strength of the government’s case against the accused and the content of the military judge’s findings instructions are evaluated; with respect to the strength of the government’s case against the accused, where there has been overwhelming evidence of an appellant’s guilt, an appellate court may be convinced beyond a reasonable doubt that the accused was convicted on the strength of the evidence alone and that an erroneous propensity instruction did not contribute to the verdict; however, where the government’s case is weak, an appellate court cannot know whether the instructions may have tipped the balance in the members’ ultimate determination and thus will find that any error was not harmless beyond a reasonable doubt; likewise, where it is merely certainly possible that the accused was convicted solely based on properly admitted evidence, an appellate court will not conclude that a Hills error was harmless; furthermore, with respect to the content of the military judge’s findings instructions, where an instruction clearly tells the members that all offenses must be proven beyond a reasonable doubt, even those used to draw an inference of propensity, an appellate court may hold that there is no risk the members would apply an impermissibly low standard of proof; but, where a military judge gives a propensity instruction that explicitly refers to the preponderance of the evidence standard, an appellate court cannot deny that the military judge’s muddled instructions potentially implicated fundamental conceptions of justice under the Due Process Clause and heightened the risk that the members would apply an impermissibly low standard of proof). 

United States v. Bess, 80 M.J. 1 (where a CCA’s findings are neither clearly erroneous nor unsupported by the record, the CAAF defers to those factual findings). 

(where, at trial, appellant adequately preserved for appeal his Fifth Amendment argument that a racial group was systematically excluded from his court-martial, an appellate court reviews de novo, rather than for plain error, the question of law as to whether the convening authority’s selection of members violated the Fifth Amendment’s implicit guarantee of equal protection of the laws). 

(unlawful command influence claims are reviewed by an appellate court de novo). 

(an appellate court reviews a military judge’s ruling on a request for production of evidence for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous or her ruling is influenced by an erroneous view of the law; a military judge also abuses her discretion when a decision is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Carter, 79 M.J. 478 (an appellate court reviews assertions of ineffective assistance of counsel de novo). 

(to prevail on an ineffective assistance claim, an appellant bears the burden of proving that the performance of his defense counsel was deficient and that he was prejudiced by the error; judicial scrutiny of counsel’s performance must be highly deferential, and an appellate court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; to overcome the presumption, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms). 

(absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial). 

United States v. Rich, 79 M.J. 472 (whether an appellant has waived an issue is a legal question that an appellate court reviews de novo). 

(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. Wall, 79 M.J. 456 (whether an issue is ripe for review, and (2) whether a CCA is authorized to set aside a sentence and then reassess it before remanding the case to the convening authority are clearly questions of law that an appellate court reviews de novo). 

United States v. Clark, 79 M.J. 449 (a military judge’s decision whether to strike testimony under RCM 914 is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge’s findings of facts are clearly erroneous or his conclusions of law are incorrect).  

(an appellate court tests for prejudice based on the nature of the right violated; the standard of review and allocation of burdens depend on whether the defect amounted to a constitutional error or nonconstitutional error; generally, a Jencks Act violation will not rise to a constitutional level; however, this principle is not absolute; it may be that in some situations, denial of production of a Jencks Act type of a statement might be a denial of a Sixth Amendment right to confrontation; as such, the failure to provide material to which an accused is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation). 

(for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

(in this case, despite the erroneous admission of the law enforcement agents’ testimony in violation of RCM 914, appellant was not prejudiced where admissions that appellant made during other portions of his interview that were admissible were damning, where the record revealed that both appellant and the alleged victim had genital herpes and this type of herpes is transmitted by direct sexual contact, where appellant’s participation in the interrogation gave trial defense counsel sufficient information to cross-examine the agents, and where appellant chose to testify and had the opportunity to explain to the members the manner in which the agents conducted the interrogation; accordingly, the military judge’s RCM 914 error did not have a substantial influence on the findings). 

United States v. Jessie, 79 M.J. 437 (whether a CCA is authorized to consider materials outside the record that appellant submits in support of constitutional claims when assessing his sentence is question of law that an appellate court reviews de novo). 

United States v. Turner, 79 M.J. 401 (the lens through which an appellate court evaluates the sufficiency of a specification differs depending on when counsel first raised the issue; when a charge and specification are first challenged at trial, the wording will be read narrowly and interpretations will only be adopted that hew closely to the plain text; hewing closely to the plain text means that only the language contained in the specification will be considered in deciding whether it properly states the offense in question; however, a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; under the latter scenario, the specification will be viewed with maximum liberality). 

(if a specification fails to state an offense, the appropriate remedy is dismissal of that specification unless the government can demonstrate that this constitutional error was harmless beyond a reasonable doubt). 

(the question of whether a specification fails to state an offense is a question of law which an appellate court reviews de novo). 

(although in order to state the elements of an inchoate offense under Articles 80 and 81, UCMJ, a specification is not required to expressly allege each element of the predicate offense, sufficient specificity is required so that an accused is aware of the nature of the underlying target or predicate offense). 

(a flawed specification first challenged after trial is viewed with greater tolerance than one which was attacked before findings and sentence; although failure of a specification to state an offense is a fundamental defect which can be raised at any time, specifications are liberally construed in favor of validity when they are challenged for the first time on appeal). 

(although a claim that a specification fails to state an offense may be made at any time, if the claim is first raised after trial, then the deficient specification will be viewed with greater tolerance and will be liberally construed in favor of validity). 

(as soon as the finder of fact announces a guilty verdict regarding a facially deficient specification, the trial has ended, and the liberal construction and greater tolerance standards apply). 

(what it means to liberally construe a specification in favor of validity and to view it with greater tolerance is to view the specification with maximum liberality; when a failure to state an offense claim is first raised after trial, the claim will fail absent a clear showing of substantial prejudice to the accused - such as a showing that the specification is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had). 

United States v. Finch, 79 M.J. 389 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Hennis, 79 M.J. 370 (an appellate court reviews questions of jurisdiction de novo). 

(an appellate court reviews a military judge’s ruling on the production of witnesses for an abuse of discretion; it will not set aside a judicial denial of a witness request unless it has a definite and firm conviction that the trial court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors). 

(an appellate court reviews a military judge’s ruling on requests for expert assistance for an abuse of discretion; the trial court abuses its discretion if its ruling is arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(an appellate court reviews a military judge’s limitations on voir dire for a clear abuse of discretion). 

(a trial court’s resolution of a question of actual bias with respect to a challenge for cause is entitled on direct appeal to special deference; although the CAAF has recognized that the legal question of actual bias approximates a factual question, it reviews actual bias claims for an abuse of discretion).  

(the CAAF has taken a broader view of implied bias based on its interpretation of RCM 912(f)(1)(N), which provides that a member shall be excused for cause whenever it appears that the member should not sit as a member in the interest of having the court-martial free from substantial doubt as to legality, fairness, and impartiality; the question to ask with respect to implied bias is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; and to answer this question, the totality of the circumstances are reviewed and it is assumed that the public is familiar with the unique structure of the military justice system; implied bias challenges are reviewed pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review). 

United States v. Avery, 79 M.J. 363 (whether an Article 134, UCMJ, offense is preempted depends on statutory interpretation, which is a question of law that an appellate court reviews de novo). 

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). 

(where an appellant has affirmatively waived any objection to the military judge’s findings instructions, there is nothing left for an appellate court to correct on appeal).

(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 (the test for when a military judge must instruct on the impact of a punitive discharge on retirement benefits is that there must be (1) an evidentiary predicate and (2) a request for the instruction; this test applies to all forms of retirement benefits, including retirement for disability). 

(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). 

United States v. Guardado, 79 M.J. 301 (the question of whether appellant is entitled to credit for an Article 13, UCMJ, violation is reviewed de novo; it is a mixed question of law and fact, and the military judge’s findings of fact will not be overturned unless they are clearly erroneous; appellant bears the burden of proof to establish a violation of Article 13, UCMJ). 

2018 (October Term)

United States v. Hyppolite, 79 M.J. 161 (to reverse for an abuse of discretion involves far more than a difference in opinion; the challenged action must be found to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous in order to be invalidated on appeal). 

United States v. Navarette, 79 M.J. 123 (generally, the decision to grant or deny a motion for a sanity board is reviewed by an appellate court for an abuse of discretion; under the abuse of discretion standard, findings of fact are reviewed under a clearly erroneous standard and conclusions of law are reviewed de novo). 

United States v. English, 79 M.J. 116 (the scope of an appellate court’s authority is a legal question that a superior appellate court reviews de novo). 

United States v. Frost, 79 M.J. 104 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law; findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed). 

(an appellate court may not find an abuse of discretion if the court’s conclusion is that the military judge was maybe wrong or probably wrong; rather, instead, an appellate court may only conclude that findings of fact are clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake by the trial judge has been committed).    

(the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless).

(for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

United States v. Coleman, 79 M.J. 100 (where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not; this test is to be applied to the elements of the statutes violated and not to the pleadings or proof of these offenses; the focus is on a strict facial comparison of the elements of the charged offenses). 

United States v. Haynes, 79 M.J. 17 (an appellate court considers the issue of waiver as a question of law under a de novo standard of review). 

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 assessing prejudice with respect to prosecutorial misconduct, 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; under this test, appellant has the burden to prove that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different).

(questions pertaining to the substance of a military judge’s instructions, as well as those involving statutory interpretation, are reviewed by an appellate court de novo). 

(where an appellant does 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).

(when a statute is silent as to mens rea, an appellate court only reads into the statute that mens rea which is necessary to separate wrongful conduct from innocent conduct; a statute’s silence can be indicative of a general intent scienter).

United States v. Rodriguez, 79 M.J. 1 (an appellate court reviews questions of legal sufficiency de novo; to determine whether evidence is legally sufficient, an appellate court asks whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this determination is based on the evidence before the factfinder; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, and preserves the factfinder’s role as weigher of the evidence; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction). 

United States v. Gonzales, 78 M.J. 480 (whether one offense is a lesser included offense of another offense is a question of law). 

(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). 

United States v. Gleason, 78 M.J. 473 (whether a specification fails to state an offense is a question of law that an appellate court reviews de novo). 

(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 (Article 59(a), UCMJ, provides that 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; just as a substantial right can be either constitutional or nonconstitutional, material prejudice for purposes of Article 59, UCMJ, must be understood by reference to the nature of the violated right). 

(where a forfeited constitutional error was clear or obvious, material prejudice is assessed using the harmless beyond a reasonable doubt standard; that standard is met where a court is confident that there was no reasonable possibility that the error might have contributed to the conviction). 

(in the context of preserved and unpreserved nonconstitutional errors, appellate courts consider whether there is a reasonable probability that, but for the error, the outcome of the proceedings would have been different; for constitutional errors, rather than the probability that the outcome would have been different, courts must be confident that there was no reasonable possibility that the error might have contributed to the conviction). 

(when an appellate court reviews a constitutional issue for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt). 

(an appellant gets the benefit of changes to the law between the time of trial and the time of his appeal; in other words, on direct review, an appellate court applies the clear law at the time of the appeal, not the time of trial).

(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 preserved or forfeited error, a finding or sentence may only be corrected for interference with a substantial right involving an error of law; where the error is constitutional, the government must show that the error was harmless beyond a reasonable doubt to obviate a finding of prejudice). 

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

(an appellate court applies the harmless beyond a reasonable doubt standard when assessing prejudice for a forfeited constitutional error under Article 59, UCMJ).  

(there is no legitimate military justification for interpreting material prejudice under Article 59(a), UCMJ, differently for preserved and forfeited constitutional errors).

(absent articulation of a legitimate military necessity or distinction, or a legislative or executive mandate to the contrary, the CAAF has a duty to follow Supreme Court precedent). 

(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)).

United States v. Lewis, 78 M.J. 447 (a military judge’s decision to exclude evidence is reviewed for an abuse of discretion). 

(a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range). 

(the voluntariness of a confession is a question of law that an appellate court reviews de novo). 

(the prosecution bears the burden of establishing by a preponderance of the evidence that the confession was voluntary; voluntariness turns on whether an accused’s will has been overborne; the necessary inquiry is whether the confession is the product of an essentially free and unconstrained choice by its maker). 

(in determining whether an accused’s will was overborne in a particular case, the totality of all the surrounding circumstances are considered, to include both the characteristics of the accused and the details of the interrogation; some of the factors taken into account include the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, the use of physical punishment such as the deprivation of food or sleep, an earlier violation of Article 31(b), UCMJ, whether the admission was made as a result of the questioner’s using earlier, unlawful interrogations, and the presence of a cleansing warning, although the absence of such is not fatal to a finding of voluntariness; the fact that a suspect chooses to speak after being informed of his rights, is of course, highly probative). 

United States v. Hutchins, 78 M.J. 437 (an appellate court reviews a military judge’s ruling to admit or suppress evidence for an abuse of discretion; an abuse of discretion occurs when the military judge’s factual findings are clearly erroneous, view of the law is erroneous, or decision is outside of the range of reasonable choices). 

(questions of whether a prosecution violates the Double Jeopardy Clause or the doctrine of issue preclusion are issues of law that an appellate court reviews de novo). 

(an appellant bears the burden to demonstrate that the issue whose relitigation he seeks to foreclose was actually decided in the first proceeding; courts examine all the circumstances of the first trial, including the pleadings, evidence, charge, and other relevant matter, to determine whether a rational factfinder could have grounded its verdict upon an issue other than that which appellant seeks to foreclose from consideration). 

United States v. Harris, 78 M.J. 434 (an appellate court reviews the question whether an appellant is entitled to pretrial confinement credit de novo; the court will not set aside a military judge’s findings of fact unless they are clearly erroneous, but reviews the application of those facts to the law de novo; a military judge’s factual findings are clearly erroneous when there is no evidence in the record to support the finding or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

(when a term is not statutorily defined, an appellate court accords that term its ordinary meaning). 

United States v. Meakin, 78 M.J. 396 (an appellate court reviews questions of legal sufficiency de novo, and the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

United States v. Perkins, 78 M.J. 381 (overruling precedent by implication is disfavored). 

(when precedents conflict, an appellate court typically follows the more recent decision). 

(an appellate court will not overturn precedent that has been treated as authoritative for a long time unless the most cogent reasons and inescapable logic require it). 

United States v. McDonald, 78 M.J. 376 (the mens rea applicable to an offense is an issue of statutory construction that an appellate court reviews de novo). 

(when panel instructions are not objected to at trial, they are reviewed by an appellate court for plain error). 

(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. Hamilton, 78 M.J. 335 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion). 

(interpreting the interplay between unsworn victim impact statements under RCM 1001A (now incorporated as RCM 1001(c)) and the MREs is a question of law and reviewed by an appellate court de novo). 

(if an error occurs in the admission of evidence at sentencing, the test for prejudice is whether the error substantially influenced the adjudged sentence). 

(when determining whether an error substantially influenced a sentence, an appellate court considers the following four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question). 

United States v. Kohlbek, 78 M.J. 326 (for purposes of construing the MREs, it is a well established rule that an appellate court uses principles of statutory construction). 

(an appellate court reviews questions of statutory construction de novo). 

(where the language of an MRE is susceptible to only a single interpretation, an appellate court applies the rule as written; but where the language is susceptible to more than one interpretation, an appellate court can and may consider whether one interpretation or the other creates potential constitutional or other issues). 

(whether a rule promulgated by the President is consistent with his authority under Article 36, UCMJ, is a question of statutory construction, which an appellate court reviews de novo). 

(an appellate court reviews a military judge’s decision to exclude evidence is reviewed for an abuse of discretion; and a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo). 

(Article 59(a), UCMJ, provides that the 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). 

(for nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings; in conducting the prejudice analysis, an appellate court weighs: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

(if excluding evidence was a constitutional error, the test for prejudice would be whether the error was harmless beyond a reasonable doubt).

United States v. Briggs, 78 M.J. 289 (an appellate court generally applies the statute of limitations that was in effect at the time of the offense). 

(an appellate court generally presumes that subsequent amendments do not apply because there is both a presumption against retroactive legislation and a presumption in favor of repose). 

(congressional enactments will not be construed to have retroactive effect unless their language requires this result). 

United States v. Forbes, 78 M.J. 279 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion, and the test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea). 

United States v. Hale, 78 M.J. 268 (an appellate court conducts a de novo review of jurisdiction questions). 

(when challenged, the government must prove jurisdiction by a preponderance of evidence). 

(an appellate court presumes that the panel followed the instructions given by the military judge). 

(whether a panel was properly instructed is a question of law reviewed by an appellate court de novo). 

(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 terms of prejudice, while prosecutorial misconduct does not automatically require a new trial or the dismissal of the charges against the accused, relief will be granted if the trial counsel’s misconduct actually impacted on a substantial right of an accused (i.e., resulted in prejudice); in evaluating 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 considers: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction). 

United States v. Nicola, 78 M.J. 223 (a finding of guilt is legally sufficient if any rational factfinder, when viewing the evidence in the light most favorable to the government, could have found all essential elements of the offense beyond a reasonable doubt; when applying this test for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution).    

(an appellate court cannot affirm a criminal conviction on the basis of a theory of liability not presented to the trier of fact). 

United States v. King, 78 M.J. 218 (an appellate court reviews questions of legal sufficiency de novo, and the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution; as such, the standard for legal sufficiency involves a very low threshold to sustain a conviction; the criterion thus impinges upon jury discretion only to the extent necessary to guarantee the fundamental protection of due process of law). 

(in determining whether any rational trier of fact could have determined that the evidence at trial established guilt beyond a reasonable doubt, the term “reasonable doubt” does not mean that the evidence must be free from any conflict or that the trier of fact may not draw reasonable inferences from the evidence presented). 

(the government is free to meet its burden of proof with circumstantial evidence; the government’s ability to rely on circumstantial evidence is especially important in cases where the offense is normally committed in private). 

United States v. Tucker, 78 M.J. 183 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo). 

United States v. Criswell, 78 M.J. 136 (an appellate court reviews a military judge’s ruling on a motion to suppress an eyewitness identification for abuse of discretion, viewing the evidence in the light most favorable to the prevailing party; it does not undertake a de novo analysis of whether the in-court identification should have been admitted; instead, it focuses on appellant’s objections to the military judge’s findings of fact, view of the law, and conclusions in applying the law to the facts). 

(a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed). 

United States v. Eugene, 78 M.J. 132 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion, viewing the evidence in the light most favorable to the prevailing party; a military judge abuses his discretion when his findings of fact are clearly erroneous or he misapprehends the law; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).    

2017 (October Term)

United States v. Barry, 78 M.J. 70 (an appellate court reviews questions of statutory construction de novo). 

(an appellate court reviews an allegation of unlawful influence de novo, assessing findings of fact that inform this legal question under a clearly erroneous standard; in such cases, where a military judge made detailed findings of fact and these findings are clearly supported by the record, an appellate court will adopt them for its analysis).    

United States v. Jones, 78 M.J. 37 (an appellate court reviews a military judge’s determination that an appellant’s statement was adequately corroborated by independent admissible evidence under MRE 304(c) for an abuse of discretion). 

(when hearsay is admitted in violation of the Military Rules of Evidence, the ordinary rule is that an appellate court can affirm only if it does not find material prejudice; however, if admission of the evidence also violates the Constitution, and the error is not waived, the standard of review is higher). 

(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).

(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. Christensen, 78 M.J. 1 (an appellate court reviews issues of personal jurisdiction de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record). 

United States v. Armstrong, 77 M.J. 465 (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). 

United States v. Hendrix, 77 M.J. 454 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; the court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous). 

(an appellate court reviews de novo the question of whether an accused received a speedy trial). 

(when a term is not statutorily defined, a court accords it its ordinary meaning). 

United States v. Dinger, 77 M.J. 447 (whether, as a result of a court-martial conviction, appellant is subject to a punitive discharge is a question of law that an appellate court reviews de novo). 

United States v. Hardy, 77 M.J. 438 (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). 

United States v. Kelly, 77 M.J. 404 (the construction of a statute is a question of law that an appellate court reviews de novo). 

(it is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme; as such, courts typically seek to harmonize independent provisions of a statute). 

United States v. Andrews, 77 M.J. 393 (an appellate court reviews prosecutorial misconduct and improper argument de novo; if proper objection is made, an appellate court reviews for prejudicial error; 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, upholding US v. Fletcher, 62 MJ 175 (CAAF 2005)). 

United States v. Barker, 77 M.J. 377 (interpreting RCM 1001A is a question of law that is reviewed de novo). 

(an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; a military judge abuses his discretion when he admits evidence based on an erroneous view of the law). 

(when there is error in the admission of sentencing evidence, the test for prejudice is whether the error substantially influenced the adjudged sentence; when determining whether an error had a substantial influence on a sentence, an appellate court considers the following four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; an error is more likely to be prejudicial if the fact was not already obvious from the other evidence presented at trial and would have provided new ammunition against an appellant).

United States v. Eppes, 77 M.J. 339 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; in reviewing such a ruling, it considers the evidence in the light most favorable to the prevailing party; it reverses for an abuse of discretion if the military judge’s findings of fact are clearly erroneous or if his decision is influenced by an erroneous view of the law). 

(probable cause determinations made by a neutral and detached search authority are entitled to substantial deference; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the search authority’s decision; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense manner; a grudging or negative attitude by reviewing courts towards warrants is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant). 

(appellate courts may read an affidavit and warrant to include inferences the issuing magistrate reasonably could have made in authorizing a probable cause search). 

(in evaluating the issuing search authority’s probable cause finding, an appellate court examines: 1) the facts known to the authority when he issued the warrant, and 2) the manner in which he came to know these facts). 

United States v. Robinson, 77 M.J. 294 (an appellate court reviews questions of legal sufficiency de novo). 

(the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(this legal sufficiency assessment draws every reasonable inference from the evidence of record in favor of the prosecution). 

(with respect to an appellate issue of whether evidence should have been admitted at trial under the constitutionally required exception of MRE 412(b)(1)(C), the government bears the burden of establishing harmlessness beyond a reasonable doubt; and in assessing harmlessness, an appellate court evaluates the entire record to determine whether there is a reasonable possibility that this evidentiary error contributed to appellant’s conviction).

(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). 

United States v. Wheeler, 77 M.J. 289 (whether an offense is preempted depends on statutory interpretation, which is a question of law that an appellate court reviewsde novo). 

United States v. Carpenter, 77 M.J. 285 (when reviewing a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion, the CAAF pierces the CCA’s opinion and examine the military judge’s ruling directly).    

(an appellate court reviews a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion, and this is a stringent standard of review). 

(an appellate court’s review of a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 is properly based on a military judge’s disposition of the motion submitted to him or her and not on the motion that appellate defense counsel later wishes trial defense counsel had submitted). 

United States v. Simpson, 77 M.J. 279 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo). 

(an appellate court affords significant deference to a military judge in determining whether he obtained an adequate factual basis from an accused to support a guilty plea). 

(an appellate court will not set aside an accused’s guilty plea on appeal unless there is a substantial basis in law or fact for questioning the plea). 

United States v. Mooney, 77 M.J. 252 (an appellate court reviews questions of statutory construction de novo.). 

United States v. Katso, 77 M.J. 247 (whether the government has a sua sponte duty to hold a continued confinement hearing within seven days of a certification to the CAAF under Article 67(a)(2), UCMJ, is a question of law, that the CAAF reviews de novo). 

United States v. Condon, 77 M.J. 244 (an appellate court reviews claims of an improper reference to an accused’s invocation of his constitutional rights de novo). 

(a finding or sentence of court-martial may not be held incorrect by an appellate court on the ground of an error of law unless the error materially prejudiced the substantial rights of the accused; where the alleged error is of constitutional dimensions, an appellate court must conclude beyond a reasonable doubt that it was harmless before it can affirm; to conclude that such an error was harmless beyond a reasonable doubt, an appellate court must be convinced that the error did not contribute to the verdict; that an error did not contribute to the verdict is not of course to say that the members were totally unaware of that feature of the trial later held to have been erroneous; it is, rather, to find that error unimportant in relation to everything else the members considered on the issue in question as revealed in the record). 

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). 

(when an appellate court considers a request to overrule a prior decision of the court, it analyzes the matter under the doctrine of stare decisis). 

(the doctrine of stare decisis is not an inexorable command; an appellate court considers the following factors in evaluating the application of stare decisis: whether the prior decision is unworkable or poorly reasoned; any intervening events; the reasonable expectations of servicemembers; and the risk of undermining public confidence in the law; a party must present a special justification for us to overrule prior precedent). 

United States v. Harpole, 77 M.J. 231 (the question of whether a communication is privileged is a mixed question of fact and law; factual findings are reviewed for clear error and legal questions, including the interpretation of a rule’s language, are reviewed de novo). 

(the party claiming the military’s victim advocate-victim privilege (MRE 514) privilege has the burden of establishing by a preponderance of the evidence that the communication is privileged). 

(an appellate court uses principles of statutory construction when interpreting MRE privileges; these privileges are construed narrowly because they run contrary to a court’s truth-seeking function). 

(an appellate court reviews claims of ineffective assistance of counsel de novo). 

(when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; the appellant must also demonstrate that there is a reasonable probability that the verdict would have been different absent the excludable evidence). 

United States v. Jerkins, 77 M.J. 225 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect). 

(an appellate court review questions of unlawful influence de novo). 

(the standard for determining prejudice in cases in which the military judge has abused her discretion by admitting or excluding sentencing evidence appears to be linked to whether the evidence has constitutional implications; the harmless error standard is applied for nonconstitutional issues and the appellate court must determine whether the excluded evidence may have substantially influenced the adjudged sentence; for constitutional issues, the harmless beyond a reasonable doubt standard is applied). 

(in this case, application of the harmless beyond a reasonable doubt standard is consistent with the position that unlawfully influencing a court-martial raises constitutional due process concerns where it undermines an accused’s right to a fair trial). 

(before a federal constitutional error can be held harmless, an appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; to conclude that such an error is harmless beyond a reasonable doubt, the court must be convinced that the error did not contribute to the sentence).

United States v. Mangahas, 77 M.J. 220 (the applicable statute of limitations is a question of law that an appellate court reviews de novo). 

(criminal statutes of limitations are to be liberally interpreted in favor of repose). 

United States v. Acevedo, 77 M.J. 185 (an appellate court reviews challenges to the legal sufficiency of the evidence de novo; the standard for determining the legal sufficiency of evidence supporting a guilty verdict is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in applying this test, all inferences and credibility determinations must be drawn in favor of the prosecution). 

United States v. Chisum, 77 M.J. 176 (a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the jury was totally unaware of that feature of the trial later held to have been erroneous, but rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record).    

(when an error constitutes a constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, an appellate court’s harmless beyond a reasonable doubt review includes weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 

United States v. Riesbeck, 77 M.J. 154 (an appellate court reviews the selection of court-martial members for error de novo). 

(an appellate court applies a case-specific analysis when deciding issues of improper member selection). 

(in cases involving the misapplication of Article 25(d), UCMJ, when the error derives from court stacking and unlawful command influence, an appellate court places the burden on the government to prove that the error was harmless beyond a reasonable doubt). 

(in order to prevail on the issue of prejudice when the error derives from court stacking and unlawful command influence, the government must convince an appellate court, beyond a reasonable doubt, that appellant received a fair trial, free from the effects of unlawful command influence; and in the improper member selection context, any doubt must be resolved in favor of the accused). 

United States v. Short, 77 M.J. 148 (absent clear evidence of an abuse of discretion, an appellate court will not reverse a military judge’s determination on a motion for mistrial; in determining whether the military judge abused his discretion by not granting a mistrial, an appellate court looks to the actual grounds litigated at trial; the challenge is to assess the probable impact of the inadmissible evidence upon the court members; that judgment is rooted in a simple tolerable risk assessment that the members would be able to put aside the inadmissible evidence). 

United States v. Guardado, 77 M.J. 90 (instructional errors are reviewed by an appellate court de novo). 

(when an accused fails to object to a military judge’s propensity instruction at trial, an appellate court reviews for plain error). 

(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). 

United States v. Jacobsen, 77 M.J. 81 (an appellate court reviews issues of statutory interpretation and jurisdiction de novo). 

(in interpreting a statute, an appellate court first looks to the text of the statute, and when statutory language is unambiguous, the statute’s plain language will control). 

(it is a fundamental rule of statutory interpretation that a court afford all parts of a statute the same construction). 

United States v. Bailey, 77 M.J. 11 (when deciding whether the military judge properly instructed a panel, an appellate court uses a de novo standard of review). 

(in reviewing whether a military judge erred by not providing a requested instruction in a specific case, an appellate court uses a three-pronged test to determine whether: (1) the requested instruction is correct; (2) the main instruction given does not substantially cover the requested material; and (3) the instruction is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation; all three prongs must be satisfied for there to be error). 

United States v. Hennis, 77 M.J. 7 (a claim of ineffective assistance of counsel is not ripe for review until after there is a record of counsel’s performance). 

United States v. Pugh, 77 M.J. 1 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; on matters of fact with respect to appeals under Article 62, UCMJ, the appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous). 

(the legality of a military order is a question of law that an appellate court reviews de novo). 

(an appellate court determines whether an order is overbroad by examining the specific conduct at issue rather than the theoretical limits of the order). 

2016 (October Term)

United States v. Mitchell, 76 M.J. 413 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and consider the evidence in the light most favorable to the party that prevailed at trial).

(a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect). 

(two discrete inquiries are essential to the determination of whether an accused is in custody for the purposes of Miranda (384 US 436 (1966)), and Edwards (451 US 477 (1981)): first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave; the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest; courts evaluate: (1) whether the person appeared for questioning voluntarily; (2) the location and atmosphere of the place in which questioning occurred; (3) the length of the questioning; (4) the number of law enforcement officers present at the scene; and (5) the degree of physical restraint placed upon the suspect).

(for the inevitable discovery exception to apply to warrant the admission of unlawfully obtained evidence, the government must demonstrate by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner). 

United States v. Forrester, 76 M.J. 479 (an appellate court reviews multiplicity claims de novo). 

United States v. Gurczynski, 76 M.J. 381 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard). 

(when an appeal presents a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

United States v. Ramos, 76 M.J. 372 (on a motion to suppress, an appellate court reviews a military judge’s ruling for an abuse of discretion). 

(the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion). 

(in deciding whether a judge abused his discretion in denying a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and it reviews conclusions of law de novo). 

(on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented). 

United States v. Richards, 76 M.J. 365 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when that court determines that the military judge’s findings of fact are clearly erroneous or that he misapprehended the law).

(when an appellate court reviews a decision on a motion to suppress, it considers the evidence in the light most favorable to the prevailing party)

(an appellate court reviews de novo questions regarding whether a search authorization is overly broad). 

United States v. Claxton, 76 M.J. 356 (in military practice, where an appellant demonstrates that the government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the government can show that nondisclosure was harmless beyond a reasonable doubt; failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial). 

United States v. Darnall, 76 M.J. 326 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous or he misapprehended the law; the court reviews the legal question of sufficiency for finding probable cause de novo using a totality of the circumstances test, and it considers the evidence in the light most favorable to the prevailing party; however, when there are misstatements or improperly obtained information, the court severs that information and examines the remainder to determine if probable cause still exists). 

United States v. Commisso, 76 M.J. 315 (failure to grant a motion for a mistrial is an abuse of discretion if, had the members answered material questions honestly at voir dire, defense counsel would have had a valid basis to challenge them for cause). 

United States v. Chikaka, 76 M.J. 310 (an appellate court reviews allegations of unlawful command influence de novo; in conducting this review, the court first must determine whether an appellant has met his or her initial burden of presenting some evidence of unlawful command influence; this some evidence standard is low, although an appellant must allege more than mere allegation or speculation; once an appellant has met this initial evidentiary burden, the burden shifts to the government to rebut the allegation of UCI beyond a reasonable doubt). 

United States v. Herrmann, 76 M.J. 304 (an appellate court review questions of legal sufficiency de novo; in conducting this legal sufficiency review, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

United States v. Reese, 76 M.J. 297 (whether a change made to a specification is minor is a matter of statutory interpretation and is reviewed by an appellate court de novo). 

(an appellate court applies ordinary rules of statutory construction in interpreting the RCM).

(courts must presume that a legislature says in a statute what it means and means in a statute what it says there; when the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete). 

United States v. Carter, 76 M.J. 293 (an appellate court reviews questions of jurisdiction and statutory interpretation de novo). 

United States v. Hendrix, 76 M.J. 283 (an appellate court reviews a military judge’s decision denying a request for an expert consultant for an abuse of discretion; it also reviews a military judge’s admission of evidence for an abuse of discretion; this abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous; where a military judge provides no explanation for his decision to deny an expert consultant or to admit evidence, the judge’s decision is entitled to less deference). 

United States v. Oliver, 76 M.J. 271 (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).  

(an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; an appellant must show that under the totality of the circumstances in his case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice).   

United States v. Tucker, 76 M.J. 257 (as a first step in statutory construction, an appellate court is obligated to engage in a plain language analysis of the relevant statute). 

United States v. Boyce, 76 M.J. 242 (an appellate court reviews allegations of unlawful command influence de novo). 

(an appellate court applies a harmless beyond a reasonable doubt standard for both actual and apparent unlawful command influence because in the military justice system both the right to a trial that is fair, and the right to a trial that is objectively seen to be fair, have constitutional dimensions sounding in due process). 

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). 

United States v. Erikson, 76 M.J. 231 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard is strict, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

United States v. Davis, 76 M.J. 224 (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). 

(whether a required instruction on findings contained within RCM 920(e) is reasonably raised by the evidence is a question of law that an appellate court reviews de novo).

(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). 

(the threshold question in determining whether a military judge erred in failing to give a mistake-of-fact instruction is whether that defense was reasonably raised by the evidence — in other words, was there error at all — a question of law that an appellate court reviews de novo).

(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). 

United States v. Hukill, 76 M.J. 219 (a military judge’s decision to admit evidence is reviewed for an abuse of discretion). 

(the meaning and scope of MRE 413 is a question of law that is reviewed de novo). 

(constitutional concerns exist if, in a military judge-alone trial, a military judge uses charged sexual misconduct as propensity evidence under MRE 413; as there are constitutional dimensions at play, the erroneous admittance of evidence must be tested for prejudice under the harmless beyond a reasonable doubt standard; the government must prove there was no reasonable possibility that the error contributed to a conviction). 

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). 

(an appellate court presumes that the panel followed the instructions given by the military judge).

United States v. Ahern, 76 M.J. 194 (whether an accused has waived an issue is a question of law that an appellate court review de novo). 

United States v. Ortiz, 76 M.J. 189 (an appellate court decides questions of statutory construction de novo). 

United States v. Fetrow, 76 M.J. 181 (the standard of review for a military judge’s decision to admit evidence is abuse of discretion). 

(whether admitted testimony constitutes evidence that the accused committed another offense of child molestation under MRE 414 is one of law, reviewed de novo.). 

(questions involving the construction of statutes and rules are reviewed de novo). 

(under Article 59(a), UCMJ, 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 test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; it is the government that bears the burden of demonstrating that the admission of erroneous evidence was harmless; in evaluating whether an erroneous admission of evidence was harmless, an appellate court uses a four-part analysis, weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

(an appellate court reviews de novo whether an accused was prejudiced by a nonconstitutional evidentiary error).   

United States v. Sager, 76 M.J. 158 (an appellate court reviews questions of statutory interpretation de novo). 

(the ordinary meaning canon of statutory construction provides that the words of a statute are to be taken in their natural and ordinary signification and import; the surplusage canon of statutory construction provides that, if possible, every word and every provision is to be given effect and that no word should be ignored or needlessly be given an interpretation that causes it to duplicate another provision or to have no consequence). 

(courts must presume that a legislature says in a statute what it means and means in a statute what it says there; when the words of a statute are unambiguous, then, the first canon of statutory construction is also the last, and judicial inquiry is complete). 

(words and phrases used in the UCMJ are interpreted by examining the ordinary meaning of the language, the context in which the language is used, and the broader statutory context; in any such analysis, a court should give meaning to each word of the statute; only where the statute remains unclear does the court look next to the legislative history). 

United States v. Lopez, 76 M.J. 151 (when an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews for plain error; appellant thus 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). 

(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 accused must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different). 

(an evidentiary issue that has been preserved with a timely objection is reviewed by an appellate court not for plain error, but for abuse of discretion). 

(an appellate court evaluates prejudice from an erroneous evidentiary ruling by weighing (1) the strength of the Government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

United States v. Bartee, 76 M.J. 141 (whether a court-martial panel was selected free from systematic exclusion is a question of law reviewed de novo). 

(the burden is on the defense to establish the improper exclusion of qualified personnel from the selection process; once the defense establishes such exclusion, the government must show by competent evidence that the member selection process was free from impropriety). 

United States v. Price, 76 M.J. 136 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion, and the appellant bears the burden of establishing that the military judge abused that discretion). 

(an appellate court affords military judges substantial deference when they decide which facts to elicit during a providence inquiry in order to establish a factual basis for a guilty plea). 

United States v. Rosario, 76 M.J. 114 (the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the appellate question for this legal sufficiency test is whether a reasonable factfinder reading the evidence one way could have found all the elements of the offense beyond a reasonable doubt). 

(the test for a factual sufficiency review by the lower courts is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the members of the service court are themselves convinced of appellant’s guilt beyond a reasonable doubt). 

United States v. Nieto, 76 M.J. 101 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion). 

(when reviewing a military magistrate’s issuance of a search authorization, an appellate court does not review the military magistrate’s probable cause determination de novo; instead, it examines whether a military magistrate had a substantial basis for concluding that probable cause existed; a substantial basis exists when, based on the totality of the circumstances, a common-sense judgment would lead to the conclusion that there is a fair probability that evidence of a crime will be found at the identified location). 

(an appellate court gives great deference to a magistrate’s probable cause determination because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; however, this deference is not boundless, and a reviewing court may conclude that the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances; however, if a military magistrate has a substantial basis to find probable cause, a military judge does not abuse his discretion in denying a motion to suppress). 

(an appellate court is ordinarily bound by the MREs). 

United States v. Dockery, 76 M.J. 91 (an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review; an abuse of discretion has occurred if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law). 

(a military judge’s ruling on a challenge for cause is given great deference; although it is not required for a military judge to place his or her implied bias analysis on the record, doing so is highly favored and warrants increased deference from appellate courts; although record dissertations from the military judge’s decision on implied bias are not expected, there should be a clear signal that the military judge applied the right law; however, a mere incantation of the legal test for implied bias without analysis is rarely sufficient in a close case; in cases where less deference is accorded, the analysis logically moves more towards a de novo standard of review). 

(if a military judge does not put any analysis on the record in granting a challenge of a court member for implied bias, an appellate court need not afford his ruling much deference).

(whether a lower court utilized the appropriate standard to test for prejudice is a question of law reviewed de novo).

(where a military judge erroneously granted the government’s actual bias challenge on the basis of implied bias, and the error is nonconstitutional, the error is subject to harmless error analysis, and appellant is entitled to relief only if he or she can demonstrate prejudice).

United States v. Bowen, 76 M.J. 83 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact). 

(whether an error, constitutional or otherwise, was harmless is a question of law that an appellate court reviews de novo; and for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings). 

(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; an appellate court evaluates the harmlessness of an evidentiary ruling by weighing: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

Randolph v. HV, 76 M.J. 27 (jurisdiction is a question of law that an appellate court reviews de novo). 

(the burden to establish jurisdiction rests with the party invoking the court’s jurisdiction, and in making this determination, a federal court reads the statutes governing its jurisdiction as an integrated whole, with the purpose of carrying out the intent of Congress in enacting them). 

United States v. Sewell, 76 M.J. 14 (an appellate court reviews questions of improper argument and prosecutorial misconduct de novo). 

(when preserved by objection, allegations of improper argument are reviewed by an appellate court de novo to determine whether the military judge’s ruling constitutes an abuse of discretion; on the other hand, if there is no objection at trial, appellant has the burden of establishing the prejudice; in either case, reversal is warranted only when the trial counsel’s comments, taken as a whole, were so damaging that the appellate court cannot be confident that the members convicted appellant on the basis of the evidence alone). 

United States v. Pabelona, 76 M.J. 9 (improper argument involves a question of law that this Court reviews de novo; the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused). 

(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).

(even were an appellate court to conclude that prosecutorial misconduct occurred, relief is merited only if that misconduct actually impacted on a substantial right of an accused, that is, resulted in prejudice). 

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

(where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the appellant was sentenced on the basis of the evidence alone). 

(in assessing prejudice in cases of prosecutorial misconduct, an appellate court looks at 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; no determination has been made regarding how much weight to give each factor; however, if the third factor overwhelmingly favors the government, that may be sufficient to establish lack of prejudice). 

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 (whether a panel was properly instructed is a question of law reviewed de novo).    

(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). 

United States v. Wilson, 76 M.J. 4 (an appellate court reviews questions of legal sufficiency de novo; when reviewing for legal sufficiency, it considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(an appellate court reviews questions of statutory construction de novo). 

(it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language). 

(the President has the power to prescribe regulations for trial procedures, including modes of proof, for cases arising under the UCMJ; however, this power does not extend to Part IV of the MCM, and an appellate court is not bound by the President’s interpretation of the elements of substantive offenses; still, when the President’s narrowing construction of a statute does not contradict the express language of a statute, it is entitled to some deference, and an appellate court will not normally disturb that construction).

2015 (September Term)

United States v. Sterling, 75 M.J. 407 (the legality of an order is a question of law that an appellate court reviews de novo). 

(appellate review of the requirements of the RFRA, although largely factual in nature, presents mixed questions of fact and law; an appellate court reviews legal questions, including the application of RFRA, de novo; factual findings are reviewed for clear error).

Howell v. United States, 75 M.J. 386 (jurisdiction is a question of law that an appellate court reviews de novo).    

(under the facts of this case, where appellant’s conviction and sentence, including a reduction from E-6 to E-1 were set aside and he was pending a rehearing, there was no intent to punish the accused by paying him as an E-1 while he was performing duties as and wearing the uniform of an E-6; thus, no violation of Article 13, UCMJ, occurred and the military judge abused his discretion in awarding confinement credit). 

United States v. Witt, 75 M.J. 380 (the disqualification of an appellate judge may be evaluated for harmlessness by examining three factors:  the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process). 

United States v. Harrell, 75 M.J. 359 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion, considering the evidence in the light most favorable to the prevailing party; while a military judge’s findings of fact are reviewed for clear error, conclusions of law are reviewed de novo). 

(the meaning and scope of MRE 413 is a question of law that an appellate court reviews de novo). 

(in this case, an appellate court must first review de novo the meaning and scope of MRE 413 to determine whether the military judge’s admission of charged conduct under MRE 413 was guided by erroneous legal conclusions, before determining whether the military judge abused his discretion in admitting the MRE 413 evidence as propensity evidence). 

(instructional errors are reviewed by an appellate court de novo, and that court evaluates a military judge’s instructions in the context of the overall message conveyed to the members). 

(if instructional error is found when there are constitutional dimensions at play, an appellate court tests an appellant’s claims for prejudice under the standard of harmless beyond a reasonable doubt; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to appellant’s conviction or sentence; an error is not harmless beyond a reasonable doubt when there is a reasonable possibility that the error complained of might have contributed to the conviction). 

EV v. United States, 75 M.J. 331 (an appellate court reviews questions of jurisdiction de novo). 

(in construing statutes, jurisdictional and otherwise, an appellate court applies the accepted rules of statutory construction, and one is that an unambiguous statute is to be enforced according to its terms; when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms). 

United States v. Martin, 75 M.J. 321 (the question of whether trial defense counsel invited an error at trial is a question of law, which an appellate court reviews de novo).  

United States v. Evans, 75 M.J. 302 (the protections afforded to servicemembers under Article 31(b), UCMJ, are in many respects broader than the rights afforded to those servicemembers under the Fifth Amendment of the Constitution; accordingly, when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented; if the Article 31(b), UCMJ, violation also implicates the constitutional rights of the accused, then the harmless beyond a reasonable doubt test applies; but if the Article 31(b), UCMJ, violation stands alone as a statutory violation (that is, if the violation does not also present a constitutional violation), then the nonconstitutional test for prejudice spelled out in US v. Kerr, 51 MJ 401, 405 (CAAF 1999) applies). 

(what standard of review to apply is a question of law that is reviewed by an appellate court de novo). 

(the mere fact that Article 31(b), UCMJ, rights have a constitutional analog does not change the means by which those rights are ultimately conferred, i.e., by statute, nor does it otherwise convert those statutory rights into constitutional rights; indeed, Article 31(b), UCMJ, derives primarily from statutory enactment, not constitutional adjudication; and Article 31(b), UCMJ, rights are in certain respects more extensive than those provided under the Fifth Amendment; therefore, when it comes to such rights, the Constitution prescribes a floor, not a ceiling; in light of these circumstances, violations of Article 31(b), UCMJ, must be viewed as falling into one of two distinct categories: either (a) purely statutory violations; or (b) statutory violations that also present a constitutional violation; this dichotomy leads to the following determination about the appropriate prejudice test that must be applied in each instance: (a) purely statutory violations must be tested for prejudice under the factors provided in US v. Kerr, 51 MJ 401, 405 (CAAF 1999); and (b) statutory violations that also present a constitutional violation must be tested for prejudice under the harmless beyond a reasonable doubt standard). 

United States v. Caldwell, 75 M.J. 276 (questions pertaining to the substance of a military judge’s instructions, as well as those involving statutory interpretation, are reviewed by an appellate court de novo). 

United States v. Rogers, 75 M.J. 270 (an appellate court’s standard of review on a challenge for cause premised on implied bias is less deferential than abuse of discretion, but more deferential than de novo review; under this standard, an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; indeed, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted; however, an appellate court will afford a military judge less deference if an analysis of the implied bias challenge on the record is not provided; in cases where less deference is accorded, the analysis logically moves more towards a de novo standard of review). 

United States v. Gay, 75 M.J. 264 (CAAF reviews a CCA’s sentence appropriateness determination for abuse of discretion). 

(the scope and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation, which, as a question of law, is reviewed de novo). 

United States v. Cooley, 75 M.J. 247 (an appellate court reviews questions of statutory interpretation de novo). 

(an appellate court reviews de novo the question of whether the accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; it is similarly bound by the facts as found by the military judge unless those facts are clearly erroneous; when speedy trial allegations involve several specifications, each specification must be considered separately). 

United States v. Chin, 75 M.J. 220 (the scope and meaning of both Article 66(c), UCMJ, and Article 61, UCMJ, are matters of statutory interpretation, questions of law reviewed de novo). 

United States v. Killion, 75 M.J. 209 (where the defense has preserved an instructional error for appeal, an appellate court reviews the adequacy of the military judge’s panel instruction de novo; and if instructional error is found, an appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt; it is also clear that it is solely the government’s burden to persuade the court that constitutional error is harmless beyond a reasonable doubt). 

United States v. Atchak, 75 M.J. 193 (an appellate court reviews questions of statutory interpretation de novo).   

(CAAF generally reviews a CCA’s action under Article 66, UCMJ, for an abuse of discretion). 

United States v. Henning, 75 M.J. 187 (in an Article 62, UCMJ, appeal, an appellate court reviews a military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

(an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus, on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(an appellate court reviews de novo whether the Daubert (US v. Daubert, 509 US 579 (1993)) framework for the admissibility of expert testimony was correctly followed; as long as the Daubert framework is properly followed, an appellate court will not overturn the ruling unless it is manifestly erroneous). 

(where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted). 

United States v. Rapert, 75 M.J. 164 (an appellate court reviews an issue of statutory construction de novo). 

(if the speech involved in wrongfully communicating a threat under Article 134, UCMJ, is protected under the First Amendment, and the government has successfully carried its burden of proving the elements the offense, then a court may undertake to determine whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger; this is a question of proximity and degree). 

(in conducting a legal sufficiency review, an appellate court approaches this question in the light most favorable to the prosecution). 

(there is a fundamental difference between suggesting that the constitutionally protected status of speech may affect legal sufficiency and suggesting that legal sufficiency review can be used to determine whether an appellant’s speech is constitutionally protected; only the former assertion is correct; the constitutionally protected status of conduct may affect legal sufficiency, but not vice versa). 

(because the military is, by necessity, a specialized society separate from civilian society, the right of free speech in the armed services is not unlimited and must be brought into balance with the paramount consideration of providing an effective fighting force for the defense of the country; to achieve this balance, a court must first weigh the gravity of the evil posed by the speech at issue against the probability of this evil’s manifestation; if the resulting danger justifies the invasion of free speech necessary to avoid it, the rights of individual servicemembers must yield to the needs of the nation, and this is a question of law that an appellate court reviews de novo). 

United States v. Pease, 75 M.J. 180 (CAAF reviews questions of law de novo). 

United States v. Gifford, 75 M.J. 140 (whether a mens rea requirement applies to a general order that prohibited servicemembers 21 years of age and older from providing alcohol to individuals under 21 years of age for the purpose of consumption is a question of law that an appellate court reviews de novo). 

United States v. Wilder, 75 M.J. 135 (the conclusion whether an accused received a speedy trial is a legal question that is reviewed de novo). 

United States v. Williams, 75 M.J. 129 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

United States v. Hoffmann, 75 M.J. 120 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion, viewing the evidence in the light most favorable to the party prevailing below; that means that an appellate court reviews the military judge’s findings of fact for clear error but her conclusions of law de novo). 

(an appellate court does not review a probable cause determination de novo; instead, its duty is to make sure that the authorizing official had a substantial basis for concluding that probable cause existed; sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others). 

United States v. Captain, 75 M.J. 99 (an appellate court reviews claims of ineffective assistance of counsel de novo, giving substantial deference to a military judge’s findings of fact unless they are clearly erroneous). 

(to prevail on an ineffective assistance claim, appellant bears the burden of proving that the performance of defense counsel was deficient and that he was prejudiced by the error; with respect to deficiency prong, courts indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; as to the prejudice prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; in this case, the prejudice analysis requires that the appellate court determine whether there was a reasonable probability that, but for the alleged errors, the adjudged sentence would have been less than that provided in the pretrial agreement).

(an appellate court need not apply the two pronged ineffective assistance of counsel test in any particular order; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed). 

(whether a convening authority has met the requirements of RCM 1107 in taking his action, as a question of law, is reviewed de novo). 

United States v. Busch, 75 M.J. 87 (an appellate court reviews questions of constitutional law de novo; if a constitutional error is found, whether it is harmless beyond a reasonable doubt is also reviewed de novo).    

(the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo; while the court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion). 

United States v. Riggins, 75 M.J. 78 (an appellate court conducts a de novo review to determine whether one offense is a lesser included of another). 

(where a conviction violated appellant’s constitutional rights to notice and to not be convicted of a crime that is not a lesser included offense of the offenses with which he was charged, such a constitutional error does not require automatic reversal, but instead is tested for prejudice). 

(a constitutional error is harmless when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; for preserved constitutional errors, the government bears the burden of establishing that the error is harmless beyond a reasonable doubt). 

United States v. Bess, 75 M.J. 70 (an appellate court reviews a military judge’s decision to admit or exclude evidence for abuse of discretion; this standard requires more than just our disagreement with the military judge’s decision; instead, an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(for constitutional errors, the government must persuade an appellate court that the error was harmless beyond a reasonable doubt; this is a question of law which an appellate court reviews de novo; and in this review, an appellate court will not look at some hypothetical reasonable panel, but at whether the guilty verdict actually rendered in the trial was surely unattributable to the error). 

United States v. LaBella, 75 M.J. 52 (the burden to establish jurisdiction rests with the party invoking the court’s jurisdiction). 

2014 (September Term)

United States v. Stellato, 74 M.J. 473 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s rulings directly). 

(a military judge’s discovery rulings and remedies for discovery violations are reviewed for an abuse of discretion).  

(the abuse of discretion standard calls for more than a mere difference of opinion; instead, an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

(in an Article 62, UCMJ, appeal, an appellate court is bound by the facts as found by the military judge unless those facts are clearly erroneous). 

(in determining whether discovery violations have prejudiced an accused’s right to a fair trial, a military judge may examine (1) whether the delayed disclosure hampered or foreclosed a strategic option, (2) whether the belated disclosure hampered the ability to prepare a defense, (3) whether the delay substantially influenced the factfinder, and (4) whether the nondisclosure would have allowed the defense to rebut evidence more effectively; in essence, prejudice can arise from discovery violations when those violations interfere with an accused’s ability to mount a defense). 

(in this case, the military judge did not abuse his discretion in finding prejudice from the discovery violations where the violations resulted in the inability of the defense to call a key witness and the violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party, thus compromising the ability of the accused to mount a defense; furthermore, the military judge, after considering all possible lesser, alternative remedies, did not abuse his discretion in concluding that no remedy short of dismissal with prejudice would adequately address the prejudice). 

United States v. Sullivan, 74 M.J. 448 (an appellate court reviews claims of error in the selection of members of courts-martial de novo as questions of law; it also conducts a de novo review to determine whether an error in member selection is harmless). 

(an appellate court reviews a military judge’s disqualification decision for an abuse of discretion; a military judge’s ruling constitutes an abuse of discretion if it is arbitrary, fanciful, clearly unreasonable or clearly erroneous, not if an appellate court merely would reach a different conclusion). 

(an appellate court applies an objective standard for identifying an appearance of bias with respect to a military judge by asking whether a reasonable person knowing all the circumstances would conclude that the military judge’s impartiality might reasonably be questioned). 

United States v. Akbar, 74 M.J. 364 (an appellate court reviews ineffective assistance of counsel claims de novo; to prevail, appellant must show that counsel’s performance was deficient, and that the deficiency prejudiced the defense; an attorney is deficient when his representation falls below an objective standard of reasonableness).  

(to prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) his counsel’s performance fell below an objective standard of reasonableness, and (2) the counsel’s deficient performance gives rise to a reasonable probability that the result of the proceeding would have been different without counsel’s unprofessional errors). 

(an appellate court is required to be highly deferential in its review of counsel’s performance, and it must presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment; further, it is constrained by the principle that strategic choices made by trial defense counsel are virtually unchallengeable after thorough investigation of the law and the facts relevant to the plausible options).

(an appellate court does not measure deficiency based on the success of a trial defense counsel’s strategy, but instead examines whether counsel made an objectively reasonable choice in strategy from the available alternatives; similarly, an appellate court must remain mindful that counsel have wide latitude in making tactical decisions; thus, an appellate court’s scrutiny of a trial defense counsel’s performance is highly deferential, and it makes every effort to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate conduct from counsel’s perspective at the time).   

(an appellant is prejudiced by counsel’s deficient performance where there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the capital sentencing context, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence to determine if there is a reasonable probability that the panel would have returned a different sentence). 

(trial defense counsel have a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary; strategic choices made by counsel after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; in considering whether an investigation was thorough, an appellate court addresses not what is prudent or appropriate, but only what is constitutionally compelled; the notion that the same type and breadth of investigation will be required in every case has been rejected). 

(in determining whether there was ineffective assistance of counsel, an appellate court does not assess trial defense counsels’ performance through the prism of appellate hindsight and then apply its own subjective view of how it thinks defense counsel should have conducted the trial; rather, it is obligated to determine whether trial defense counsels’ performance fell below an objective standard of reasonableness and, if so, whether there was a reasonable probability that the result of the proceeding would have been different absent counsels’ deficient performance). 

(an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel).

(in a capital case, if trial defense counsels’ mitigation presentation was deficient, in order to determine if prejudice has been established, an appellate court asks whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance; the new mitigating evidence must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing).

(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). 

(a challenge for change of venue based on pervasive pretrial publicity is reviewed by an appellate court for an abuse of discretion). 

(servicemembers are entitled to have their cases adjudged by fair and impartial court-martial panels whose evaluation is based solely upon the evidence, not pretrial publicity; pretrial publicity by itself is not enough, however, for a change of venue; instead, an accused is entitled to a change of venue if the pretrial publicity creates so great a prejudice against the accused that the accused cannot obtain a fair and impartial trial). 

(the CAAF does not adopt the ABA Guidelines in analyzing capital defense counsels’ performance; instead it adheres to the Supreme Court’s guidance that no particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant; it examines whether counsel made objectively reasonable choices based on all the circumstances of a case). 

(a denial by the CCA of an appellant’s request for appellate assistance by mental health experts is reviewed for an abuse of discretion by the CAAF; an abuse of discretion arises if the CCA’s factual findings are clearly erroneous or if its decision is based on a misapplication of the law). 

(ordinarily, an appellate court reviews the adequacy of a military judge’s instructions de novo; however, if an appellant fails to object to the instruction at trial, the appellate court reviews for plain error). 

(when evaluating the voluntariness of a statement, an appellate court reviews the totality of the circumstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; this inquiry examines the accused’s age, education, experience and intelligence). 

(in a capital case, failing to charge aggravating factors regarded as elements is an Apprendi error subject to harmless error review to determine whether the constitutional error was harmless beyond a reasonable doubt; where appellant preserved the charging issue at trial, the government bears the burden of establishing the error was harmless beyond a reasonable doubt; a specification’s failure to allege an element is not harmless if this error frustrated an accused’s right to notice and opportunity to zealously defend himself). 

United States v. Quick, 74 M.J. 332 (when considering whether to overrule a precedent, an appellate court is guided by the doctrine of stare decisis; under this fundamental principle, adherence to precedent is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process; stare decisis is a principle of decision making, not a rule, and need not be applied when the precedent at issue is unworkable or badly reasoned; as a general matter, however, adhering to precedent is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right). 

(under the doctrine of stare decisis, a decision should not be overruled without examining intervening events, reasonable expectations of servicemembers, and the risk of undermining public confidence in the law).

(for purposes of an appellate court’s analysis under the doctrine of stare decisis, the court does not limit its review to whether the prior precedent was wrongly decided, but rather it examines whether the prior decision is unworkable or poorly reasoned, any intervening events, the reasonable expectations of servicemembers, and the risk of undermining public confidence in the law).  

United States v. Schloff, 74 M.J. 312 (an appellate court reviews de novo questions of statutory interpretation and whether a specification states an offense). 

(in the absence of any specific statutory definition of a word in a statute, a court looks to the ordinary meaning of the word). 

(canons of statutory construction are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent; however, these rules of thumb give way when the words of a statute are unambiguous). 

United States v. Plant, 74 M.J. 297 (an appellate court reviews the legal sufficiency of an offense de novo; to determine whether evidence is legally sufficient, the court asks whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this determination is based on the evidence before the factfinder). 

United States v. Murphy, 74 M.J. 302 (an appellate court will not disturb a guilty plea unless appellant has demonstrated that there is a substantial basis in law or fact for questioning the plea). 

(an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).    

(it is axiomatic that in determining the scope of a statute, an appellate court looks first to its language; it further looks to provisions of related statutes; the same interpretive process is applied when analyzing a rule promulgated by the President in the MCM).   

United States v. McIntosh, 74 M.J. 294 (in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo).    

(there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance). 

United States v. Nettles, 74 M.J. 289 (personal jurisdiction claims are reviewed by an appellate court de novo). 

(the law of discharges for the purposes of criminal jurisdiction is judicially created, and therefore an appellate court is free to modify it). 

(because of the duties imposed by military status, an appellate court reviews the laws and regulations governing enlistment and separation with sensitivity; this is especially salient in the context of most reserve personnel, who inherently occupy a gray area and are therefore most in need of clear rules so as to guide their conduct). 

United States v. Katso, 74 M.J. 273 (whether evidence is testimonial hearsay is a question of law reviewed by an appellate court de novo). 

(an appellate court reviews a military judge’s ruling on a motion to exclude evidence for an abuse of discretion, considering the evidence in the light most favorable to the prevailing party; also, an appellate court will not overturn factual findings unless they are clearly erroneous or unsupported by the record). 

(determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment). 

(for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant). 

United States v. Blouin, 74 M.J. 247 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion; if an accused sets up matter inconsistent with the plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; in reviewing a military judge’s decision to accept a guilty plea, an appellate court applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion). 

United States v. Woods, 74 M.J. 238 (a military judge’s ruling on a challenge for cause is reviewed for an abuse of discretion; military judges are afforded a high degree of deference on rulings involving actual bias; this reflects, among other things, the importance of demeanor in evaluating the credibility of a member’s answers during voir dire; by contrast, issues of implied bias are reviewed under a standard less deferential than abuse of discretion, but more deferential than de novo). 

(the test for implied bias is, ultimately in the military context, one of public perception: unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; the test takes into account, among other distinct military factors, the confidence appellate courts have that military members will follow the instructions of military judges and thus, while it will often be possible to rehabilitate a member on a possible question of actual bias, questions regarding the appearance of fairness may nonetheless remain; the question before an appellate court is whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; to answer this question, an appellate court reviews the totality of the circumstances, and assumes the public to be familiar with the unique structure of the military justice system). 

United States v. Keefauver, 74 M.J. 230 (when reviewing a decision of a CCA on a military judge’s ruling, the CAAF typically pierces through that intermediate level and examines the military judge’s ruling, and then decides whether the CCA was right or wrong in its examination of the military judge's ruling). 

(an appellate court reviews a military judge’s decision to suppress evidence for an abuse of discretion; factfinding is reviewed under the clearly erroneous standard while conclusions of law are reviewed de novo; evidence is considered in the light most favorable to the prevailing party). 

(whether facts in toto justify a protective sweep is a question of law).    

United States v. Ward, 74 M.J. 225 (where there is a nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused under Article 59(a), UCMJ). 

(an appellate court reviews prejudice determinations under a de novo standard of review). 

United States v. Carter, 74 M.J. 204 (a military judge's decision to admit or exclude evidence at sentencing is reviewed for an abuse of discretion).

(with respect to a military judge's decision to admit or exclude evidence at sentencing, a military judge is given wide discretion and more deference if he or she properly conducts a MRE 403 balancing test and articulates his or her reasoning on the record).

United States v. Simmermacher, 74 M.J. 196 (when evidence is lost or destroyed, a military judge’s failure to abate proceedings is reviewed for an abuse of discretion). 

(an abuse of discretion occurs when a court’s findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law). 

United States v. Muwwakkil, 74 M.J. 187 (an appellate court reviews a military judge’s decision to strike testimony under the Jencks Act and RCM 914 using an abuse of discretion standard). 

United States v. Castillo, 74 M.J. 160 (to successfully advance a facial challenge to the constitutional validity of a statute or regulation, the challenger must establish that no set of circumstances exists under which the regulation would be valid). 

(interpretation of a service instruction is a question of law that is reviewed by an appellate court de novo). 

(questions of constitutional law are reviewed by an appellate court de novo, including a question of whether a self-reporting requirement of civilian arrests conflicts with the Fifth Amendment privilege against self-incrimination). 

United States v. Torres, 74 M.J. 154 (an appellate court reviews de novo the instructions given by a military judge). 

(in determining whether appellant was prejudiced by a military judge’s instructional error on findings, an appellate court applies a harmlessness analysis:  whether it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error). 

United States v. Norman, 74 M.J. 144 (an appellate court reviews a military judge’s application of MRE 701 for an abuse of discretion). 

(an appellate court conducts de novo review of whether an error, constitutional or otherwise, was harmless; for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings; an appellate court determines whether prejudice resulted from an erroneous evidentiary ruling by weighing four factors: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question). 

(an appellate court reviews the issue of legal sufficiency de novo). 

(in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt).   

(the legal sufficiency standard does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, and preserves the factfinder’s role as weigher of the evidence; in other words, an appellate court’s decision does not hinge on whether or how the parties’ lists of circumstantial evidence or negating factors stack up against each other; rather, it hinges on whether reasonable factfinders could have drawn inferences one way or the other under a given set of circumstances; an appellate court evaluates whether there is an avenue through which a rational factfinder could find the essential elements of the crime). 

United States v. Adams, 74 M.J. 137 (an appellate court reviews a military judge’s admission of evidence for an abuse of discretion). 

United States v. Olson, 74 M.J. 132 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(in reviewing a military judge’s finding that a consent to search was voluntary, an appellate court reviews the evidence in the light most favorable to the prevailing party at trial; and it will not overturn a military judge’s finding that a consent to search was voluntary unless it was unsupported by the evidence or clearly erroneous). 

(although recognizing that voluntariness of a consent to search is determined from the totality of the circumstances, an appellate court focuses on six nonexclusive Wallace factors (US v. Wallace, 66 MJ 5 (CAAF 2008)) to assist in analyzing the voluntariness of a consent to search:  (1) the degree to which the suspect’s liberty was restricted, (2) the presence of coercion or intimidation, (3) the suspect’s awareness of her right to refuse to consent based on inferences of the suspect’s age, intelligence, and other factors, (4) the suspect’s mental state at the time, (5) the suspect’s consultation, or lack thereof, with counsel, and (6) the coercive effects of any prior violations of the suspect’s rights). 

United States v. Piolunek, 74 M.J. 107 (while members are not presumed to be suited to make legal determinations of constitutional law, they are presumed to be competent to make factual determinations as to guilt; when jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error; the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, because jurors are well equipped to analyze the evidence; moreover, in the absence of evidence indicating otherwise, a jury is presumed to have complied with the instructions given them by the judge). 

United States v. Buford, 74 M.J. 98 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed below). 

(in reviewing a military judge’s ruling on a motion to suppress, an appellate court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard).

(when an appeal presents a mixed question of law and fact, an appellate court will find that a military judge abused her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect; a finding by an appellate court that a military judge abused her discretion requires more than a mere difference of opinion). 

United States v. Morita, 74 M.J. 116 (an appellate court reviews questions of jurisdiction de novo). 

United States v. McFadden, 74 M.J. 87 (an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion). 

(absent evidence to the contrary, court members are presumed to comply with the military judge’s instructions). 

United States v. Newton, 74 M.J. 69 (when faced with the task of distinguishing between a substantive and an interpretative agency rule, appellate courts use some variation of the legal effects test; the critical question under the legal effects test is whether the rule imposes a duty on affected parties; if it does, the rule is substantive; this inquiry looks primarily at the language of the statute to determine the substance of the congressional enactment and the scope of the agency’s delegated authority, and then compares this to the language of the rule). 

(an appellate court reviews de novo the question whether an agency’s rule is substantive or interpretative as a matter of law). 

United States v. Gutierrez, 74 M.J. 61 (in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; further, in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Castillo, 74 M.J. 39 (an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review). 

(RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel; in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well). 

United States v. Peters, 74 M.J. 31 (an appellate court reviews implied bias challenges pursuant to a standard that is less deferential than abuse of discretion, but more deferential than de novo review; whereas a military judge can observe the demeanor of the court members in order to determine credibility in the case of actual bias, cases of implied bias are based upon an objective test and therefore the military judge is given less deference in such cases). 

(although an appellate court does not expect record dissertations from the military judge’s decision on implied bias, it does require a clear signal that the military judge applied the right law; incantation of the legal test without analysis is rarely sufficient in a close case). 

(where a military judge determines not to grant the challenge, additional analysis on the record will better inform appellate courts in their review and determination as to whether there was an abuse of discretion; a military judge is afforded less deference if an analysis of the implied bias challenge on the record is not provided). 

(RCM 912(f)(1)(N) sets the basis for an implied bias challenge, which stems from the historic concerns about the real and perceived potential for command influence in courts-martial; unlike the test for actual bias, an appellate court looks to an objective standard in determining whether implied bias exists; the core of that objective test is the consideration of the public’s perception of fairness in having a particular member as part of the court-martial panel). 

(in reaching a determination of whether there is implied bias, namely, a perception or appearance of fairness of the military justice system, the totality of the circumstances should be considered; while cast as a question of public perception, this test may well reflect how members of the armed forces, and indeed the accused, perceive the procedural fairness of the trial as well).

(at times, appellate courts have cast the test for implied bias as one asking whether most people in the same position would be prejudiced; that may well inform the implied bias analysis, but this question is better oriented to objectively evaluate actual bias than to serve as the test for implied bias). 

(an appellate court tests for implied bias not on the subjective qualities of the panel member, but on the effect that panel member’s presence will have on the public’s perception of whether the appellant’s trial was fair; thus, although a panel member’s good character can contribute to a perception of fairness, it is but one factor that must be considered in the context of the other issues raised concerning that individual’s panel membership). 

United States v. Piren, 74 M.J. 24 (an appellate court reviews a military judge’s admission of the evidence for an abuse of discretion; under that analysis, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo; the abuse of discretion standard is strict, calling for the challenged action to be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(a search may be conducted with lawful consent; consent is a factual determination, and a military judge’s findings will not be disturbed on appeal unless unsupported by the evidence or clearly erroneous; courts evaluate voluntariness with regard to consent based on the totality of circumstances; where the government has prevailed on a motion to suppress, an appellate court reviews the evidence in the light most favorable to the government). 

United States v. Phillips, 74 M.J. 20 (a military judge has significant discretion in deciding whether to accept an accused’s guilty pleas, and appellant bears the burden of establishing that the military judge abused that discretion, i.e., that the record shows a substantial basis in law or fact to question the plea).  

United States v. Gilbreath, 74 M.J. 11 (the question of whether Article 31(b), UCMJ, applies in the circumstance of an active duty servicemember questioning a member of the IRR, as a question of law, is reviewed de novo). 

(when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews a military judge’s findings of fact on a clearly-erroneous standard, and it reviews conclusions of law de novo; under these standards, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

United States v. Vargas, 74 M.J. 1 (an appellate court reviews issues of jurisdiction and statutory interpretation de novo). 

2013 (September Term)

United States v. MacDonald, 73 M.J. 426 (the adequacy of a military judge’s instructions is reviewed by an appellate court de novo). 

(where an instructional error raises constitutional implications, an appellate court tests the error for prejudice using a harmless beyond a reasonable doubt standard; the test for determining if the constitutional error is harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; whether the error is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo). 

United States v. McPherson, 73 M.J. 393 (interpreting Article 12, UCMJ, is an issue of statutory interpretation, which an appellate court reviews de novo).    

(as in all statutory construction cases, a court begins with the language of the statute; the first step is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case; the inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent and consistent; whether the statutory language is ambiguous is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole). 

(a court must presume that a legislature says in a statute what it means and means in a statute what it says there). 

(when the words of a statute are unambiguous, judicial inquiry is complete). 

(when a statute is a part of a larger Act, the starting point for ascertaining legislative intent is to look to other sections of the Act in pari materia with the statute under review).  

(one rule of statutory interpretation is that where Congress includes particular language in one section of a statute but omits it in another section of the same Act, Congress intentionally and purposely intended the disparate inclusion or exclusion). 

(a court has no license to generate a statutory conflict where none exists or to construe statutes in a way that undercuts the clearly expressed intent of Congress). 

United States v. Moon, 73 M.J. 382 (an appellate court reviews a military judge’s acceptance of a guilty plea for an abuse of discretion; the test for an abuse of discretion in accepting a guilty plea is whether the record shows a substantial basis in law or fact for questioning the plea; an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient). 

United States v. Davenport, 73 M.J. 373 (whether a record is complete and a transcript is verbatim are questions of law that an appellate court reviews de novo). 

United States v. Leahr, 73 M.J. 364 (when challenging a military judge’s impartiality on appeal, the test is objective and considers whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions). 

(the conclusion whether an accused received a speedy trial is a legal question that is reviewed de novo). 

(an appellate court reviews interpretations of RCM provisions de novo). 

United States v. Jones, 73 M.J. 357 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion). 

(when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and it reviews conclusions of law de novo; on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).    

(whether a questioner was acting or could reasonably be considered to be acting in either an official law enforcement or disciplinary capacity is a question of law that is reviewed by an appellate court de novo). 

United States v. Treat, 73 M.J. 331 (whether there was a fatal variance in a charged offense is a question of law reviewed de novo). 

(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). 

(in order to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby). 

(the test for whether a variance in a charged offense is material is whether it substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense). 

(a variance from the charged offense can prejudice an appellant by (1) putting him at risk of another prosecution for the same conduct, (2) misleading him to the extent that he has been unable adequately to prepare for trial, or (3) denying him the opportunity to defend against the charge).   

(an appellate court looks closely at the specifics of the defense’s trial strategy when determining whether a material variance denied an accused the opportunity to defend against a charge; in so doing, it considers how the defense channeled its efforts and what defense counsel focused on or highlighted). 

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

United States v. Flesher, 73 M.J. 303 (an appellate court reviews de novo the question of whether the military judge properly performed the required gatekeeping function of MRE 702 (the rule governing the testimony by expert witnesses), i.e. whether the military judge properly followed the Daubert (509 US 579 (1993)) framework; however, it reviews for abuse of discretion the decision by the military judge to permit a person to testify as an expert witness, the limitations he placed on the scope of her permitted testimony, and his enforcement of those limitations). 

(while not required in making a ruling, where the military judge places on the record his analysis and application of the law to the facts, deference is clearly warranted; however, the reverse is also true; if the military judge fails to place his findings and analysis on the record, less deference will be accorded).

(when the standard of review is abuse of discretion, and an appellate court does not have the benefit of a military judge’s analysis of the facts before him, that court cannot grant the great deference it generally accords to a trial judge’s factual findings because it has no factual findings to review; nor does it have the benefit of the military judge’s legal reasoning in determining whether he abused his discretion). 

(when a military judge does not hold a Daubert (509 US 579 (1993)) hearing and does not address the Houser (36 MJ 392 (1993)) factors in some manner, an appellate court will generally show less deference to that military judge’s decisions on the admissibility of the testimony of expert witnesses). 

(under Article 59(a), UCMJ, 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 test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings; importantly, it is the government that bears the burden of demonstrating that the admission of erroneous evidence is harmless; to determine whether the government has carried its burden, an appellate court weighs four factors: (1) the strength of the government’s case; (2) the strength of the defense’s case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question).  

United States v. Cimball Sharpton, 73 M.J. 299 (questions of law, including questions of legal sufficiency, are reviewed by an appellate court de novo). 

(the appellate standard for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

United States v. Paul, 73 M.J. 274 (the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(an appellate court reviews questions of law de novo). 

(it is a fundamental principle of due process that in order to prove its case, the government must present evidence at trial supporting each element of the charged offenses beyond a reasonable doubt; further, the review of findings, of guilt or innocence, is limited to the evidence presented at trial; a fact essential to a finding of guilty must appear in the evidence presented on the issue of guilt; it cannot be extracted from evidence presented in other proceedings in the case). 

United States v. Davis, 73 M.J. 268 (an appellate court reviews the adequacy of a military judge’s instruction de novo; where an instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; in assessing prejudice under this standard, the government must prove beyond a reasonable doubt that the error did not contribute to the accused’s conviction or sentence; in applying the harmless beyond a reasonable doubt standard, an appellate court asks whether a rational panel could have found appellant not guilty if it had been instructed properly). 

United States v. Frey, 73 M.J. 245 (improper argument involves a question of law that an appellate court reviews de novo; the legal test for improper argument is whether the argument was erroneous and whether it materially prejudiced the substantial rights of the accused; where improper argument occurs during the sentencing portion of the trial, an appellate court determines whether or not it can be confident that the accused was sentenced on the basis of the evidence alone).    

(three factors are balanced to assess whether misconduct, including improper sentencing argument, impacted the accused’s substantial rights and the integrity of his trial: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction). 

United States v. Janssen, 73 M.J. 221 (whether Congress has “by law” vested the Secretary of Defense, the head of a department, with the authority to appoint a civilian as an appellate military judge under the Appointments Clause is a question of law that an appellate court reviews de novo). 

United States v. Talkington, 73 M.J. 212 (an appellate court reviews a military judge’s sentencing instructions for an abuse of discretion, and a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances). 

United States v. Danylo, 73 M.J. 183 (an appellate court reviews de novo Sixth Amendment speedy trial issues).  

(in analyzing an appellant’s speedy trial right, an appellate court gives substantial deference to the military judge’s findings of fact unless they are clearly erroneous).   

(in determining whether an appellant has been denied his right to a speedy trial under the Sixth Amendment, an appellate court considers the following factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant). 

United States v. Kearns, 73 M.J. 177 (an appellate court reviews challenges to the legal sufficiency of the evidence de novo). 

(the standard for determining the legal sufficiency of evidence supporting a guilty verdict is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(when reviewing evidence for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Gutierrez, 73 M.J. 172 (an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in performing its legal review, the appellate court is not limited to appellant’s narrow view of the record; further, the appellate question is not whether the evidence is better read one way or the other, but whether under Jackson v. Virginia, 443 US 307, 319 (1979), a reasonable factfinder reading the evidence one way could have found all the elements of the offense beyond a reasonable doubt).    

(a criminal defendant is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts; this review should not be confused with the problems caused by inconsistent verdicts; sufficiency-of-the evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilty beyond a reasonable doubt; this review should be independent of the jury’s determination that evidence on another count was insufficient; the government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilty beyond a reasonable doubt; further safeguards against jury irrationality are unnecessary). 

United States v. Hornback, 73 M.J. 155 (where proper objection is entered at trial, an appellate court reviews alleged prosecutorial misconduct for prejudicial error). 

(in determining whether prejudice resulted from prosecutorial misconduct, an appellate court will look 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 to the prejudice inquiry requires the balancing of 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).   

(prosecutorial misconduct by a trial counsel will require reversal when the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

United States v. Finch, 73 M.J. 144 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion). 

(an error by the military judge in failing to advise an accused of the nature of the offense and the correct definition of its legal concepts does not always render a guilty plea improvident; where the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle, the guilty plea may be accepted). 

(to prevail on a claim that a guilty plea was improvident, an appellant has the burden to demonstrate a substantial basis in law and fact for questioning the plea; the mere possibility of a conflict between an appellant’s plea and statements or other evidence in the record is not a sufficient basis to overturn the trial results). 

United States v. Hines, 73 M.J. 119 (the question whether wrongful receipt of money on a recurring basis constitutes one crime for the total amount, or multiple offenses for the amount received in each instance, is a question of law, which an appellate court reviews de novo). 

(an appellate court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient). 

United States v. Wicks, 73 M.J. 93 (in an Article 62, UCMJ, interlocutory appeal, an appellate court reviews a military judge’s decision directly and reviews evidence in the light most favorable to the prevailing party at trial; in reviewing a military judge’s ruling on a motion to suppress, the court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; the same standard is applied when reviewing evidentiary rulings; on mixed questions of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, clearly unreasonable, or clearly erroneous). 

(where the government obtains evidence in a search conducted pursuant to one of the exceptions to the warrant requirement, it bears the burden of establishing that the exception applies). 

United States v. Moss, 73 M.J. 64 (whether the personal authorization of an appellant is required to appeal to an appellate court is a legal issue which the appellate court reviews de novo). 

(where all of the evidence relating to whether appellant personally authorized an appeal is in the record and is not disputed, the issue before the court necessarily reduces to a question of law). 

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). 

(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 Statesv. Passut, 73 M.J. 27 (a military judge’s acceptance of a guilty plea is reviewed for an abuse of discretion; a ruling based on an erroneous view of the law constitutes an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea). 

United States v. Payne, 73 M.J. 19 (the question of whether the members were properly instructed is a question of law and thus review by an appellate court is de novo). 

(where there is 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). 

(the failure to instruct on an element does not constitute structural error and can be tested for harmlessness, overruling US v. Mance, 26 MJ 244 (CMA 1988)). 

United States v. Winckelmann, 73 M.J. 11 (in light of the experience, training, and independence of military judges, CCAs act with broad discretion when reassessing sentences; a CCA’s reassessment will only be disturbed in order to prevent obvious miscarriages of justice or abuses of discretion). 

(when determining whether to reassess a sentence or to order a sentence rehearing, CCAs should consider the totality of the circumstances presented; the following factors are illustrative, rather than exhaustive or dispositive, points of analysis that CCAs should consider when determining whether to reassess a sentence or order a rehearing: (1) dramatic changes in the penalty landscape and exposure; (2) whether an appellant chose sentencing by members or a military judge alone; in this regard, as a matter of logic, judges of the CCAs are more likely to be certain of what a military judge would have done as opposed to members, and this factor could become more relevant where charges address service custom, service discrediting conduct, or conduct unbecoming; (3) whether the nature of the remaining offenses capture the gravamen of criminal conduct included within the original offenses and, in related manner, whether significant or aggravating circumstances addressed at the court-martial remain admissible and relevant to the remaining offenses; and (4) whether the remaining offenses are of the type that judges of the CCAs should have the experience and familiarity with to reliably determine what sentence would have been imposed at trial). 

(when determining whether to reassess a sentence or to order a sentence rehearing, where a CCA conducts a reasoned and thorough analysis of the totality of the circumstances presented, greater deference is warranted on review before the CAAF).  

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). 

(the test for constitutional notice that conduct is subject to criminal sanction is one of law; it does not turn on whether an appellate court approves or disapproves of the conduct in question). 

United States v. Merritt, 72 M.J. 483 (whether a military judge correctly understood and applied the proper legal principle in denying a motion to dismiss is a question that an appellate court reviews de novo). 

(a four-factor test is employed to review claims of unreasonable post-trial delay, evaluating (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

2012 (September Term)

United States v. Salyer, 72 M.J. 415 (allegations of unlawful command influence are reviewed by an appellate court de novo). 

(on appeal, the accused bears the initial burden of raising unlawful command influence; appellant must show:  (1) facts, which if true, constitute unlawful command influence, (2) that the proceedings were unfair, and (3) that the unlawful command influence was the cause of the unfairness; thus, the initial burden of showing potential unlawful command influence is low, but is more than mere allegation or speculation; the quantum of evidence required to raise unlawful command influence is some evidence).   

(once an issue of unlawful command influence is raised by some evidence, the burden shifts to the government to rebut an allegation of unlawful command influence by persuading the court beyond a reasonable doubt that (1) the predicate facts do not exist, (2) the facts do not constitute unlawful command influence, or (3) the unlawful command influence did not affect the findings or sentence).          

(allegations of unlawful command influence are reviewed for actual unlawful command influence as well the appearance of unlawful command influence; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the test for the appearance of unlawful influence is objective, focusing upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; an appearance of unlawful command influence arises where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(an appellate court’s review of unlawful influence in a given case is not limited to actual influence; an appellate court is concerned not only with eliminating actual unlawful influence, but also with eliminating even the appearance of unlawful command influence at courts-martial).    

LRM v. Kastenberg, 72 M.J. 364 (jurisdiction is a question of law that an appellate court reviews de novo). 

(construction of a military rule of evidence, as well as the interpretation of statutes, the UCMJ, and the RCM, are questions of law reviewed by an appellate court de novo). 

United States v. Brown, 72 M.J. 359 (an appellate court reviews a military judge’s control of the mode of witness interrogation pursuant to MRE 611 for abuse of discretion; similarly, an appellate court reviews a military judge’s exercise of reasonable control over the proceedings pursuant to RCM 801 for abuse of discretion; for a ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous). 

United States v. Wilson, 72 M.J. 347 (an appellate court reviews de novo the question of whether an accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; however, it is bound by the facts as found by the military judge unless those facts are clearly erroneous). 

(the standard of diligence under which an appellate court reviews claims of a denial of speedy trial under Article 10 is not constant motion, but reasonable diligence in bringing the charges to trial; short periods of inactivity are not fatal to an otherwise active prosecution). 

(an appellate court’s framework to determine for Article 10 purposes whether the government proceeded with reasonable diligence in bringing an accused to trial includes balancing the four Barker v. Wingo (407 US 514, 530 (1972)) factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether appellant made a demand for a speedy trial; and (4) prejudice to appellant; none of the four factors has any talismanic power; rather, a court must weigh all the factors collectively before deciding whether appellant’s right to a speedy trial has been violated). 

United States v. Schell, 72 M.J. 339 (an appellate court reviews questions of law arising from a guilty plea de novo). 

(a military judge’s acceptance of an accused’s guilty plea is reviewed by an appellate court for an abuse of discretion; the test for an abuse of discretion is whether the record shows a substantial basis in law or fact for questioning the plea; for an appellate court to find a plea of guilty to be knowing and voluntary, the record of trial must reflect that the elements of each offense charged have been explained to the accused by the military judge; if the military judge fails to explain the elements to an accused, it is reversible error unless it is clear from the entire record that the accused knew the elements, admitted them freely, and pleaded guilty because he was guilty; rather than focusing on a technical listing of the elements of an offense, an appellate court looks at the context of the entire record to determine whether an accused is aware of the elements, either explicitly or inferentially).    

United States v. Porter, 72 M.J. 335 (given that the error in the admission of testimonial evidence in violation of the confrontation clause is constitutional, the question is not whether the evidence was legally sufficient without the testimonial evidence, but whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record). 

United States v. Mott, 72 M.J. 319 (whether a panel was properly instructed is a question of law that an appellate court reviews de novo). 

(an appellate court reviews a military judge’s decision to deny a motion to suppress evidence, like other decisions to admit or exclude evidence, for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range; in certain cases, even when the evidence in the record may well have supported the military judge’s decision, the military judge may nonetheless have abused his discretion where the military judge’s ruling was based on a misapprehension of the applicable law and the military judge’s findings failed to address the relevant considerations). 

(constitutional errors are reviewed by an appellate court for harmlessness beyond a reasonable doubt; constitutional error is not harmless beyond a reasonable doubt if there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case; erroneous admission of a confession requires an appellate court to exercise extreme caution before determining that the admission of the confession at trial was harmless). 

United States v. Hutchins, 72 M.J. 294 (for an error in admitting a statement obtained in violation of the Fifth Amendment right to have counsel present during a custodial interrogation to be harmless beyond a reasonable doubt, an appellate court must be convinced that there was no reasonable likelihood that its erroneous admission contributed to the verdict). 

United States v. Squire, 72 M.J. 285 (whether a statement is inadmissible testimonial hearsay under the Confrontation Clause as interpreted in Crawford v. Washington (541 US 36 (2004)), is a question of law that an appellate court reviews de novo). 

United States v. Jasper, 72 M.J. 276 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; to find an abuse of discretion requires more than a mere difference of opinion; the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous).    

(where an appellate court finds constitutional error, the question remains whether that error was harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo). 

(where a constitutional error improperly limits an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination, the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty). 

(to find that a constitutional error limiting an accused’s opportunity to present exculpatory evidence through direct testimony and cross-examination warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry focuses on whether the military judge’s ruling essentially deprived appellant of his best defense that may have tipped the credibility balance in appellant’s favor). 

(where a constitutional error violates the accused’s right to be confronted with the witnesses against him, an appellate court applies a balancing test, weighing the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 

United States v. Bennitt, 72 M.J. 266 (an appellate court reviews questions of legal sufficiency de novo). 

(the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(an appellate court reviews questions of law, such as the interpretation and statutory construction of Article 119(b)(2), UCMJ, de novo). 

United States v. Kelly, 72 M.J. 237 (an appellate court reviews a military judge’s decision to suppress or admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).  

(in order to determine whether a search is reasonable, a court must balance its intrusion against its promotion of legitimate governmental interests; the test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts).   

United States v. Gaskins, 72 M.J. 225 (where a defective specification: (1) was tried prior to the decision in Fosler (70 MJ 225 (CAAF 2011)) and (2) was raised for the first time on appeal, an appellate court tests that error for prejudice, which turns on whether that error frustrated an accused’s right to notice and opportunity to zealously defend himself, which depends in turn on whether notice of the missing element is somewhere extant in the trial record, or whether the element is essentially uncontroverted). 

(an appellate court applies the elements test to determine whether one offense is an LIO of another; applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense). 

United States v. Goings, 72 M.J. 202 (an appellate court reviews whether a statute is unconstitutional as applied de novo). 

(to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry). 

(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). 

(when the sexual conduct being charged does not fall directly within the focal point of Lawrence (539 US 558 (2003)) - sexual conduct between two individuals in a wholly private setting that was criminal for no other reason than the act of the sexual conduct itself – and where, as here, the predicate sexual conduct is criminal because of some additional factor (in this case, the violation of clauses 1 and 2 of Article 134, UCMJ), the burden of demonstrating that such conduct should nonetheless be constitutionally protected rests with the defense at trial). 

(having found plain and obvious error that was forfeited rather than waived where the government failed to allege the terminal element in an Article 134, UCMJ, specification charged before Fosler (70 MJ 225 (CAAF 2011)), an appellate court must then determine whether there is a remedy for the error, which will depend on whether the error has prejudiced the substantial rights of the accused; in the context of a defective specification, the prejudice analysis demands close review of the trial record; the 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. Tunstall, 72 M.J. 191 (whether an offense is a lesser included offense is a question of law that is reviewed de novo). 

(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). 

(an appellate court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements). 

(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. Coleman, 72 M.J. 184 (an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion). 

(an appellate court reviews all cases in which the trial counsel failed to disclose evidence that is favorable to the defense on the issue of guilt or sentencing for harmless error - whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different). 

(there are two categories of disclosure error: (1) cases in which the defense either did not make a discovery request or made only a general request for discovery; and (2) cases in which the defense made a specific request for the undisclosed information; for cases in the first category, an appellate court applies the harmless error standard; and for cases in the second category, an appellate court applies the heightened constitutional harmless beyond a reasonable doubt standard; failing to disclose requested material favorable to the defense is not harmless beyond a reasonable doubt if the undisclosed evidence might have affected the outcome of the trial).

(an appellate court’s review of discovery/disclosure issues utilizes a two-step analysis: first, it determines whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, it tests the effect of that nondisclosure on the appellant’s trial).  

United States v. Solomon, 72 M.J. 176 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(when a military judge articulates his properly conducted MRE 403 balancing test on the record, the decision will not be overturned absent a clear abuse of discretion). 

(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; when a military judge abuses his discretion in the MRE 403 balancing analysis, the error is nonconstitutional; for a nonconstitutional error such as this one, the government has the burden of demonstrating that the error did not have a substantial influence on the findings). 

United States v. Lubich, 72 M.J. 170 (on appeal, an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range).

United States v. Caldwell, 72 M.J. 137 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; it will not reject the plea unless there is a substantial basis in law and fact for questioning the guilty plea). 

United States v. Riley, 72 M.J. 115 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; an abuse of discretion occurs when there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea). 

(in order to determine whether a guilty plea is knowing and voluntary, an appellate court looks to the record of trial and the documents considered by the court below). 

United States v. Irizarry, 72 M.J. 100 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion). 

United States v. Tearman, 72 M.J. 54 (whether admitted evidence constitutes testimonial hearsay is a question of law reviewed de novo). 

(relief for Confrontation Clause errors will be granted only where they are harmless beyond a reasonable doubt; whether a constitutional error was harmless beyond a reasonable doubt is a question of law reviewed de novo; in the context of the erroneous admission of testimonial hearsay, the harmless beyond a reasonable doubt inquiry of an appellate court focuses on whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction). 

(to determine whether a Confrontation Clause error is harmless beyond a reasonable doubt, an appellate court balances factors such as: (1) the importance of the unconfronted testimony in the prosecution’s case, (2) whether that testimony was cumulative, (3) the existence of corroborating evidence, (4) the extent of confrontation permitted, and (5) the strength of the prosecution’s case; this list of factors is not exhaustive, and the determination is made on the basis of the entire record; to conclude that a Confrontation Clause error was harmless beyond a reasonable doubt, an appellate court must be convinced that the testimonial hearsay was unimportant in light of everything else the court members considered on the issue in question). 

United States v. Cote, 72 M.J. 41 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews findings of fact under the clearly erroneous standard and conclusions of law de novo). 

(on direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, CAAF reviews whether the military judge’s initial decision was an abuse of discretion). 

United States v. Vazquez, 72 M.J. 13 (the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo; to determine if a statute is unconstitutional as applied, an appellate court conducts a fact-specific inquiry). 

(the accused has the burden to demonstrate that a statute is unconstitutional). 

(given the plenary authority of Congress, itself subject to the requirements of the Due Process Clause, to legislate in the area of rules relating to the rights of servicemembers at courts-martial, an appellate court must recognize that the choices made by Congress and the President in establishing the procedures for courts-martial under Article 29(b), UCMJ, and RCM 805(d) are entitled to a high degree of deference; while it is axiomatic that an accused is entitled to a fair trial, absent an argument that the statutory scheme is facially unconstitutional, or an accused demonstrating that it is unconstitutional as applied to him, an appellate court presume that the statutory scheme established by Congress and implemented by the President constitutes both the parameters of what process is due and a fair trial in the military context). 

(to determine whether Article 29(b), UCMJ, and the procedures to implement it set forth in RCM 805(d)(1) are unconstitutional as applied to the accused, the accused has the burden to demonstrate that the factors militating in favor of the accused’s interest are so extraordinarily weighty as to overcome the balance struck by Congress). 

United States v. Clifton, 71 M.J. 489 (under a plain error analysis, this 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). 

(an appellate court reviews a military judge’s denial of a panel member’s request to recall a witness for abuse of discretion). 

(appellant bears the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error). 

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. Spicer, 71 M.J. 470 (an appellate court reviews questions of legal sufficiency de novo; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt).

United States v. Garner, 71 M.J. 430 (whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo). 

(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. Datavs, 71 M.J. 420 (to establish ineffective assistance of counsel, an accused must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo). 

(with respect to the first prong of establishing ineffective assistance of counsel, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance). 

(with respect to the second prong of establishing ineffective assistance of counsel, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different; the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; it is not enough to show that the errors had some conceivable effect on the outcome; instead, a reasonable probability is a probability sufficient to undermine confidence in the outcome). 

(defense counsel do not perform deficiently when they make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so).

(when reviewing ineffectiveness claims, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the accused; rather, if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed). 

Hasan v. Gross, 71 M.J. 416 (to prevail on a writ of mandamus, appellant must show that: (1) there is no other adequate means to attain relief; (2) the right to issuance of the writ is clear and indisputable; and (3) the issuance of the writ is appropriate under the circumstances). 

(the standard for identifying the appearance of bias requiring the recusal of a military judge is objective: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned). 

United States v. Wilkins, 71 M.J. 410 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).    

(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). 

(an appellate court applies the elements test to determine whether one offense is an LIO of another; the test does not require that the offenses at issue employ identical statutory language; rather, after applying normal rules of statutory interpretation and construction, an appellate court will determine whether the elements of the LIO would necessarily be proven by proving the elements of the greater offense). 
           
(an error in charging an offense is not subject to automatic dismissal, even though it affects constitutional rights; rather, an appellate court tests for prejudice). 

(where appellant failed to object at trial to a lesser included offense instruction, he bears the burden of proving prejudice; he must show that under the totality of the circumstances in this case, the government’s error resulted in material prejudice to his substantial, constitutional right to notice). 

2011 (September Term)

United States v. Vela, 71 M.J. 283 (the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this familiar standard gives full play to the responsibility of the trier of fact to draw reasonable inferences from basic facts to ultimate facts; the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution).    

(whether the government has shown by a preponderance of the evidence that it has based appellant’s prosecution on sources independent of the immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of this question unless it is clearly erroneous or is unsupported by the evidence). 

(in reviewing for clear error, an appellate court asks whether, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed). 

United States v. Ali, 71 M.J. 256 (jurisdiction is a legal question which an appellate court reviews de novo). 

(the constitutionality of an act of Congress is a question of law that an appellate court reviews de novo).

(where an appellant argues that a statute is unconstitutional as applied, an appellate court must conduct a fact-specific inquiry). 

(to succeed in an as-applied challenge that the exercise of court-martial jurisdiction violated his rights under the Fifth and Sixth Amendments, appellant must show that he was entitled to Fifth and Sixth Amendment protections and that, under the facts of this case, these protections were violated when he was subjected to military jurisdiction). 

United States v. Barnett, 71 M.J. 248 (an appellate court reviews issues concerning non-mandatory instructions for an abuse of discretion). 

United States v. Behenna, 71 M.J. 228 (an allegation that the members were improperly instructed is an issue that an appellate court reviews de novo). 

(in reviewing the propriety of an instruction, appellate courts must read each instruction in the context of the entire charge and determine whether the instruction completed its purpose). 

(when instructional errors have constitutional implications, as instructions involving self-defense do, then the error is tested for prejudice under a harmless beyond a reasonable doubt standard; only when the reviewing authority is convinced beyond a reasonable doubt that the error did not contribute to appellant’s conviction or sentence is a constitutional error harmless).     

(generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous). 

(once a Brady v. Maryland, 373 US 83 (1963), discovery violation is established, courts need not test for harmlessness; this makes sense; if there is a reasonable probability that the evidence would have changed the result at trial, then, by definition, the failure to disclose cannot be harmless; there is no need to conduct a redundant test).  

United States v. Rauscher, 71 M.J. 225 (whether a specification states an offense is a question of law that an appellate court reviews de novo). 

United States v. Humphries, 71 M.J. 209 (whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo). 

(where the law was settled at the time of trial and has subsequently changed, an appellate court applies the law as it exists today). 

(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 contested cases where the error in a defective specification that failed to allege the terminal element was preserved, each case must be reviewed for harmless error to determine whether the constitutional error to the accused’s right to notice under the Fifth and Sixth Amendments was harmless beyond a reasonable doubt).

(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. Norwood, 71 M.J. 204 (whether a specification is defective and the remedy for such error are questions of law, which an appellate court  reviews de novo). 

United States v. Easton, 71 M.J. 168 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).

(an appellate court reviews a military judge’s findings of fact under a clearly erroneous standard). 

United States v. Rose, 71 M.J. 138 (to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice). 

(the Strickland ineffective assistance of counsel test applies in the context of guilty pleas where an appellant challenges the plea based on ineffective assistance of counsel). 

(ineffective assistance of counsel claims involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo). 

(in determining whether a counsel’s performance was deficient in a claim of ineffective assistance of counsel, appellate courts must indulge a strong presumption that the counsel’s conduct falls within the wide range of reasonable professional assistance). 

(in determining whether there was prejudice in a claim of ineffective assistance of counsel, an appellant in a guilty plea case establishes prejudice by showing that, but for counsel’s deficient performance, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial). 

(in order to establish deficient performance in a claim of ineffective assistance of counsel, an appellant must establish that counsel’s representation amounted to incompetence under prevailing professional norms). 

(while an appellate court indulges a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, there are nevertheless important guides by which it must measure that conduct, one of which is the Rules of Professional Conduct). 

(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. Barberi, 71 M.J. 127 (where a general verdict of guilt is based in part on conduct that is constitutionally protected, the Due Process Clause requires that the conviction be set aside). 

(the longstanding common law rule is that when the factfinder returns a guilty verdict on an indictment charging several acts, the verdict stands if the evidence is sufficient with respect to any one of the acts charged; however, an exception to the general verdict rule is where one of the grounds of the conviction is found to be unconstitutional; if a factfinder is presented with alternative theories of guilt and one or more of those theories is later found to be unconstitutional, any resulting conviction must be set aside when it is unclear which theory the factfinder relied on in reaching a decision). 

(if, under the instructions to the members, one way of committing the offense charged is to perform an act protected by the Constitution, the rule requires that a general verdict of guilt be set aside even if appellant’s unprotected conduct, considered separately, would support the verdict).

(most constitutional errors, i.e., non-structural ones, constitute trial errors and are subject to harmless error review). 

(a constitutional trial error is not harmless beyond a reasonable doubt where there is a reasonable possibility that the evidence complained of might have contributed to the conviction; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the members considered on the issue in question, as revealed in the record; an error in admitting plainly relevant evidence which possibly influenced the members adversely to a litigant cannot be conceived of as harmless). 

United States v. Ignacio, 71 M.J. 125 (whether a panel was properly instructed is a question of law reviewed de novo). 

United States v. Dease, 71 M.J. 116 (an appellate court reviews a military judge’s evidentiary ruling on a motion to suppress for an abuse of discretion).

(in order to find an abuse of discretion in a military judge’s evidentiary ruling, an appellate court must find that the judge committed a clear error in his conclusions). 

United States v. Hayes, 71 M.J. 112 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all of the essential elements beyond a reasonable doubt). 

United States v. Nash, 71 M.J. 83 (appellate courts will review a military judge’s ruling on a challenge for cause for actual bias for abuse of discretion). 

(because a challenge based on actual bias involves judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire, a military judge’s ruling on actual bias is afforded great deference). 

(great deference that is afforded a military judge’s ruling on actual bias of a panel member is not a separate standard; rather, it is a recognition by appellate courts that the legal question of actual bias rests heavily on the sincerity of an individual’s statement that he or she can remain impartial, an issue approximating a factual question on which the military judge is given greater latitude of judgment; the standard, however, remains an abuse of discretion). 

United States v. McClain, 71 M.J. 80 (an appellate court reviews issues of legal sufficiency of the evidence de novo).

(evidence is legally sufficient if, viewed in the light most favorable to the government, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt; in applying this test, an appellate court draws every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Nealy, 71 M.J. 73 (jurisdiction is a legal question that an appellate court reviews de novo). 

United States v. Stanley, 71 M.J. 60 (whether a panel was properly instructed is a question of law reviewed by an appellate court de novo).

United States v. Watson, 71 M.J. 54 (while an appellate court generally examines a military judge’s decision to accept a guilty plea for abuse of discretion, where the issue appealed involves pure questions of law, it utilizes a de novo review). 

(when a statute’s language is plain, the sole function of the courts, at least where the disposition required by the text is not absurd, is to enforce it according to its terms). 

(a court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient). 

United States v. King, 71 M.J. 50 (whether a specification states an offense is a question of law that is reviewed de novo). 

(in reviewing the adequacy of a specification, the analysis is limited to the language as it appears in the specification, which must expressly allege the elements of the offense, or do so by necessary implication). 

United States v. Weeks, 71 M.J. 44 (an appellate court reviews a military judge’s decision to accept a plea of guilty for abuse of discretion).

(an appellate court reviews questions of law, such as whether appellant falsely made a check or whether something constitutes a signature or writing, de novo). 

(if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside).

United States v. Stewart, 71 M.J. 38 (absent evidence to the contrary, an appellate court may presume that members follow a military judge’s instructions). 

United States v. Ballan, 71 M.J. 28 (while it is error to fail to allege the terminal element of Article 134, UCMJ, expressly or by necessary implication, in the context of a guilty plea, where the error is alleged for the first time on appeal, whether there is a remedy for the error will depend on whether the error has prejudiced the substantial rights of the accused). 

(an appellate court reviews jurisdictional questions de novo).

(a jurisdictional defect goes to the underlying authority of a court to hear a case; however, where an error is procedural rather than jurisdictional in nature, an appellate court tests for material prejudice to a substantial right to determine whether relief is warranted). 

(whether a specification is defective and the remedy for such error are questions of law, which an appellate court reviews de novo).

(while in the case of a guilty plea where the appellant raises the validity of a specification for the first time on appeal, an appellate court views the specification with maximum liberality; such construction still does not permit the court to necessarily imply a separate and distinct element from nothing beyond allegations of the act or failure to act itself). 

(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). 

United States v. Campbell, 71 M.J. 19 (a military judge’s decision to deny relief for unreasonable multiplication of charges is reviewed for an abuse of discretion).

United States v. Bradley, 71 M.J. 13 (an appellate court reviews assertions of ineffective assistance of counsel de novo). 

(in the guilty plea context, the first part of the Strickland ineffective assistance of counsel test remains the same - whether counsel’s performance fell below a standard of objective reasonableness expected of all attorneys; the second prong is modified to focus on whether the ineffective performance affected the outcome of the plea process). 

(in determining whether appellant was denied effective assistance of counsel, it is not necessary to decide the issue of deficient performance when it is apparent that the alleged deficiency has not caused prejudice). 

(to satisfy the prejudice requirement for ineffective assistance of counsel, appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial; a reasonable probability is a probability sufficient to undermine confidence in the outcome; that requires a substantial, not just conceivable, likelihood of a different result). 

(when an appellant argues that counsel was ineffective for erroneously waiving a motion, it makes sense to deny the claim if the appellant would not be entitled to relief on the erroneously waived motion, because appellant cannot show he was harmed by not preserving the issue). 

(merely being entitled to relief on an erroneously waived motion does not by itself satisfy the prejudice analysis for an ineffective assistance of counsel claim in the guilty plea context; appellant also must satisfy a separate, objective inquiry - he must show that if he had been advised properly, then it would have been rational for him not to plead guilty). 

United States v. Fry, 70 M.J. 465 (when an accused contests personal jurisdiction on appeal, an appellate court reviews that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record; whether appellant is mentally competent is a question of fact, and an appellate court will only set aside findings of fact if they are clearly erroneous). 

United States v. Hayes, 70 M.J. 454 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; an abuse of discretion occurs when there exists something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea). 

United States v. Morrissette, 70 M.J. 431 (whether the government has shown, by a preponderance of the evidence, that it has based an accused’s prosecution on sources independent of his immunized statements is a preliminary question of fact; an appellate court will not overturn a military judge’s resolution of that question unless it is clearly erroneous or is unsupported by the evidence). 

(factors used to determine whether the government made direct or indirect use of an accused’s immunized statements include (1) whether the statements reveal anything which was not already known to the government by virtue of the accused’s own pretrial statements, (2) whether the investigation against the accused was completed prior to the immunized statement, (3) whether the decision to prosecute the accused had been made prior to the immunized statement, and (4) whether the trial counsel who had been exposed to the immunized testimony participated in the prosecution; however, these factors are not necessarily determinative as to whether the government has or has not met its burden; that is because the ultimate question is whether the government has made any direct or derivative use of immunized evidence, not whether it adhered to a particular timeline or process). 

United States v. St. Blanc, 70 M.J. 424 (the interpretation of UCMJ and RCM provisions and the military judge’s compliance with them are questions of law, which an appellate court reviews de novo).

(the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo). 

United States v. Winckelmann, 70 M.J. 403 (an appellate court reviews issues of legal sufficiency de novo). 

(evidence is legally sufficient if, viewed in the light most favorable to the government, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; in applying this test, an appellate court must draw every reasonable inference from the evidence of record in favor of the prosecution).

(if a servicemember on appeal alleges error in the application of a sentence that involves forfeitures, the servicemember must demonstrate that the alleged error was prejudicial; to establish prejudice, an appellant bears the burden of demonstrating that he or she was entitled to pay and allowances at the time of the alleged error).  

United States v. Goodman, 70 M.J. 396 (once a military judge has accepted an accused’s guilty pleas and entered findings of guilty, an appellate court will not set them aside unless it finds a substantial basis in law or fact for questioning the plea). 

(in determining on appeal whether there is a substantial inconsistency in a guilty plea, an appellate court considers the full context of the plea inquiry, including appellant’s stipulation of fact). 

United States v. Pierce, 70 M.J. 391 (whether a specification alleged all elements of an offense and whether instructions were proper are questions of law, which an appellate court reviews de novo). 

United States v. Schumacher, 70 M.J. 387 (an allegation of error in regard to a failure to give a mandatory instruction is reviewed de novo). 

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (an appellate court reviews a military judge’s ruling on whether to exclude evidence pursuant to MRE 412 for an abuse of discretion; findings of fact are reviewed under a clearly erroneous standard, and conclusions of law are reviewed de novo).

(an appellate court tests constitutional evidentiary error to see if it was harmless beyond a reasonable doubt - whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction). 

(to determine whether an error affecting an accused’s right to cross-examination was harmless beyond a reasonable doubt, an appellate court considers the following nonexclusive, five factors: the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 

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). 

(an appellate court grants relief for Confrontation Clause errors only where they are not harmless beyond a reasonable doubt; among other factors, the court considers the importance of the unconfronted testimony in the prosecution’s case, whether that testimony was cumulative, the existence of corroborating evidence, the extent of confrontation permitted, and the strength of the prosecution’s case). 

(in assessing harmlessness in the constitutional context, the question is not whether the evidence was legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable probability that the evidence complained of might have contributed the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case).

United States v. Baker, 70 M.J. 283 (an appellate court reviews a military judge’s ruling on a motion to suppress for abuse of discretion; it reviews the judge’s factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; thus on a mixed question of law and fact, a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect; the abuse of discretion standard calls for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(when reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 

(where a military judge provides a detailed ruling on pretrial eyewitness identification evidencing an accurate understanding of the Biggers reliability factors (Neil v. Biggers, 409 US 188 (1973)) and their application to the facts on the record, an appellate court gives deference to his ruling in its analysis). 

(with respect to pretrial identification, reviewing courts must determine whether under the totality of the circumstances the pretrial identification procedure was reliable even though the confrontation procedure itself was unnecessarily suggestive). 

United States v. Gaddis, 70 M.J. 248 (in determining whether the exclusion of evidence of a witness’s bias or motive to fabricate deprived an accused of a fair trial or an opportunity for cross-examination is whether a reasonable jury might have received a significantly different impression of the witness’s credibility had defense counsel been permitted to pursue his proposed line of cross-examination). 

United States v. Eslinger, 70 M.J. 193 (a military judge’s decisions to admit or exclude evidence are reviewed for an abuse of discretion). 

(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). 

United States v. Schuber, 70 M.J. 180 (an appellate court reviews de novo the question of whether appellant was denied his rights to a speedy trial under Article 10, UCMJ, as a matter of law, and it is bound by the facts as found by the military judge unless those facts are clearly erroneous; under Article 10, UCMJ, when any person subject to the UCMJ is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him; in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, the term “immediate steps” has been interpreted to mean not constant motion, but reasonable diligence in bringing the charges to trial; thus, the government must demonstrate reasonable diligence in proceeding toward trial during appellant’s pretrial confinement; however, brief inactivity is not fatal to an otherwise active, diligent prosecution; the test is reasonable diligence, not textbook prosecution). 

(although Article 10, UCMJ, creates a more stringent speedy trial standard than a Sixth Amendment analysis, alleged Article 10, UCMJ, violations are analyzed using the same Barker v. Wingo [407 US 514 (1972)] four-factor structure: (1) the length of the delay, (2) the reasons for the delay, (3) whether appellant made a demand for speedy trial, and (4) prejudice to appellant; the first factor is to some extent a triggering mechanism, and unless there is a period of delay that appears, on its face, to be unreasonable under the circumstances, there is no necessity for inquiry into the other factors that go into the balance). 

(whether the amount of time is facially unreasonable in an Article 10, UCMJ, context depends on the seriousness of the offense, the complexity of the case, and the availability of proof, and it also depends on other factors specific to the purposes of Article 10, UCMJ, which is to prevent an accused from languishing in prison without notice of the charges and without an opportunity for bail; these additional circumstances include whether appellant was informed of the accusations against him, whether the government complied with procedures relating to pretrial confinement, and whether the government was responsive to requests for reconsideration of pretrial confinement). 

United States v. Zarbatany, 70 M.J. 169 (the proper application of credit for illegal pretrial punishment is a question of law, reviewed de novo by an appellate court).

(whether action taken by the CCA provided meaningful relief for an Article 13, UCMJ, violation is a question of law that the CAAF considers under a de novo standard of review). 

United States v. Phillips, 70 M.J. 161 (in deciphering the meaning of a statute, an appellate court normally applies the common and ordinary understanding of the words in the statute).

(in determining legal sufficiency, an appellate court must decide whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(when sitting as the trier of fact, the military judge is presumed to know the law and apply it correctly). 

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). 

(when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of this trial, a court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; the appearance of impartiality is reviewed on appeal objectively and is tested under the following standard: any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned is a basis for the judge’s disqualification; because not every judicial disqualification requires reversal, the standards announced by the Supreme Court in Liljeberg [486 US 847 (1988)] are used to determine whether a military judge’s conduct warrants that remedy to vindicate public confidence in the military justice system). 

(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). 

(in the context of judicial disqualification, the Supreme Court’s Liljeberg [486 US 847 (1988)] test provides that in determining whether a judgment should be vacated, it is appropriate for an appellate court to consider the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process). 

(with respect to the third part of the Liljeberg test in the context of judicial disqualification, an appellate court considers whether denying a remedy to appellant under the circumstances of the case will risk undermining the public’s confidence in the military justice system; this risk is considered by applying an objective standard similar to the standard applied in the initial RCM 902(a) analysis; this analysis, however, differs from the initial RCM 902(a) inquiry in which appellate courts determine whether the military judge should have recused himself or herself; in the remedy analysis, an appellate court does not limit its review to facts relevant to recusal, but rather reviews the entire proceedings, to include any post-trial proceeding, the convening authority’s action, the action of the Court of Criminal Appeals, and other facts relevant to the Liljeberg [486 US 847 (1988)] test; this remedy analysis involves the public confidence in the military justice system in the context of how that system responds once it has been determined that a military judge was disqualified under RCM 902(a) and should have been recused; that analysis must necessarily include a review of all post-trial actions to evaluate how the public would perceive that response; for example, if further proceedings provided an explanation for a situation that occurred at trial, that may be sufficient to minimize the risk that the conduct would undermine the public’s confidence in the military justice system; if a remedy is granted after further proceedings, that too would impact the risk of undermining the public’s confidence; on the other hand, if the appearance is created and is not explained at trial, or if no remedy is granted, or if there was a remedy that appears inadequate from the perspective of a reasonable person, those facts would increase the risk that the conduct (creating the appearance) would undermine the public’s confidence in the military justice system). 

United States v. Hull, 70 M.J. 145 (requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored, and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence).

United States v. Sullivan, 70 M.J. 110 (an appellate court reviews a military judge’s evidentiary decisions for an abuse of discretion). 

United States v. Marsh, 70 M.J. 101 (improper argument is a question of law that an appellate court reviews de novo).

(in determining whether an improper sentencing argument prejudiced appellant, an appellate court balances the severity of the improper argument, any measures by the military judge to cure the improper argument, and the evidence supporting the sentence to determine whether the 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. Hohman, 70 M.J. 98 (an appellate court tests for prejudice a military judge’s error in failing to place any of the approved reasons for severing the attorney-client relationship on the record prior to the departure of the detailed trial defense counsel from active duty). 

United States v. Savala, 70 M.J. 70 (an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo).

(for constitutional errors at trial, the government must persuade an appellate court that the error was harmless beyond a reasonable doubt). 

(where the constitutional trial error is a violation of the Confrontation Clause, whether such an error is harmless in a particular case depends upon a host of factors that may include the importance of the witness’s testimony to the government’s case, whether the testimony was cumulative, the presence of contradictory or corroborating evidence, the extent of other cross-examination allowed, and the strength of the government case; an appellate court applies a four-part test in assessing prejudice in the event of an evidentiary error, balancing (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the excluded evidence; and (4) the quality of the evidence in question; regardless of factors employed, the balancing test involves consideration of whether, assuming that the damaging potential of the cross-examination were fully realized, an appellate court might nonetheless say that the error was harmless beyond a reasonable doubt). 

United States v. Oliver, 70 M.J. 64 (in reviewing for legal sufficiency of the evidence, the relevant question an appellate court must answer is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; it does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, rather it requires that a reviewing court examine only whether any rational trier of fact could have made that determination; this standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts; and it requires courts to review the evidence in a light most favorable to the prosecution, which preserves the factfinder’s role as weigher of evidence and impinges upon the factfinder’s discretion only to the extent necessary to guarantee the fundamental protection of due process).

(an appellate court reviews the issue of legal sufficiency de novo). 

United States v. Arriaga, 70 M.J. 51 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).

(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). 

(a court applies the elements test to determine whether one offense is a lesser included offense of another; under the elements test, one compares the elements of each offense; if all of the elements of one offense are also elements of the charged offense, then the offense is a lesser included offense of the charged offense; the two offenses need not have identical statutory language; instead, the meaning of the offenses is ascertained by applying the normal principles of statutory construction). 

United States v. Beaty, 70 M.J. 39 (the maximum punishment authorized for an offense is a question of law, which an appellate court reviews de novo).

(while an appellate court reviews a military judge’s sentencing determination under an abuse of discretion standard, where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion). 

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). 

(whether there was plain error is a question of law that an appellate court reviews de novo).

(the Court of Appeals for the Armed Forces has indulged a strong presumption against structural error, and has declined to find it unless the error was of such a nature that its effect was difficult to assess or harmlessness was irrelevant; whenever an accused has been convicted of an offense on the mistaken assumption that it was an LIO of the charged offense, the CAAF cannot say that prejudice was always irrelevant, and it cannot say that the effect of such an error was necessarily difficult to assess; thus, rather than assume structural error, it determines whether the constitutional error was prejudicial).

United States v. Girouard, 70 M.J. 5 (whether an offense is an LIO is a question of law that is reviewed de novo; in determining whether an offense is an LIO, a court applies the elements test).

(deviation from a legal rule is error unless the rule has been waived). 

(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). 

United States v. Bonner, 70 M.J. 1 (the elements test to determine whether one offense is an LIO of a charged offense does not require that the two offenses at issue employ identical statutory language; instead, after applying the normal principles of statutory construction, a court asks whether the elements of the alleged LIO are a subset of the elements for the charged offense; thus, it first determines the elements of the charged offense and the alleged LIO by applying the principles of statutory construction; then, it compares the elements of the two offenses to see if the latter is a subset of the former).  

United States v. Daly, 69 M.J. 485 (jurisdiction is a question of law that an appellate court reviews de novo).

United States v. Medina, 69 M.J. 462 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).

(whether a court-martial panel was properly instructed is a question of law reviewed by an appellate court de novo). 

(if instructional error is found, because there are constitutional dimensions at play, the error must be tested for prejudice under the standard of harmless beyond a reasonable doubt). 

United States v. Clark, 69 M.J. 438 (whether there has been improper reference to an accused’s exercise of his constitutional rights is a question of law that an appellate court reviews de novo).

(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). 

(when assessing the admissibility of the evidence of an accused’s demeanor, an appellate court must identify the demeanor at issue and ask whether the demeanor is itself testimonial or not testimonial in nature, or whether evidence of the demeanor at issue includes improper commentary on the accused’s silence; if evidence of an accused’s demeanor is testimonial or includes an improper comment on silence, the court analyzes the evidence under the Fifth Amendment or applicable statutory and regulatory safeguards; where the evidence is neither testimonial nor an improper comment on silence, the court then considers whether the accused’s demeanor is relevant under MRE 404(b) or other evidentiary rules relating to relevance). 

(in order to determine whether trial counsel’s comments in his rebuttal closing argument to claims made by defense counsel in his closing argument were fair, an appellate court must examine them in context, given the defense theory of the case).  

(with respect to constitutional error, an appellate court must be satisfied beyond a reasonable doubt that the error was harmless beyond a reasonable doubt).

United States v. Watson, 69 M.J. 415 (an appellate court reviews the laws and regulations governing enlistment and separation with sensitivity to the distinction between military and civilian status).

 
(an appellate court interprets regulations under a de novo standard of review).

United States v. Lofton, 69 M.J. 386 (an appellate court reviews questions of legal sufficiency de novo).

(the test for determining legal sufficiency is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; this test requires that an appellate court draw every reasonable inference from the evidence of record in favor of the prosecution).   

(an appellate court reviews a convening authority’s decision not to grant a post-trial hearing for an abuse of discretion). 

United States v. Lewis, 69 M.J. 379 (the issue whether trial counsel’s cross-examination of a defense witness and his comments in closing argument constituted a due process violation by suggesting that the defense bore the burden of proof to demonstrate that appellant was not guilty involves a question of law that an appellate court reviews de novo).

(in the absence of defense objection to questions in cross-examination and to comments in closing argument, 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). 

(when determining whether prosecutorial comment was improper, the statement must be examined in light of its context within the entire court-martial; in the course of reviewing whether an appellant was deprived of a fair trial by such comments, the question an appellate court must resolve is whether, viewed within the context of the entire trial, defense counsel’s comments clearly invited the reply).

United States v. Edwards, 69 M.J. 375 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; in doing so, it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea). 

United States v. Flores, 69 M.J. 366 (whether a trial counsel’s comments improperly reference an accused’s invocation of an accused’s constitutional right to remain silent is a question of law that an appellate court reviews de novo).

(when an objection is made to a nonconstitutional error, appellate courts determine whether the error materially prejudiced the substantial rights of the accused). 

(when no objection is made to a nonconstitutional error during the 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).    

(regardless of whether there was an objection or not to a nonconstitutional error, in the context of a constitutional error, the burden is on the government to establish that the comments were harmless beyond a reasonable doubt). 

(comments made by trial counsel in argument that are challenged as being an improper reference to an accused’s right to remain silent are reviewed in context rather than in isolation). 

(the test for determining whether an indirect remark by trial counsel during closing argument on the merits constitutes improper comment on an accused’s failure to testify is whether the language used was manifestly intended to be, or was of such character that the factfinder would naturally and necessarily take it to be a comment on the failure of the accused to testify).

United States v. Gooch, 69 M.J. 353 (whether a panel has been properly selected is a question of law reviewed by an appellate court de novo; the reviewing court is bound by the military judge’s findings of fact unless they are clearly erroneous). 

(having found nonconstitutional error in the application of Article 25, UCMJ, an appellate court must determine if the error materially prejudiced the substantial rights of the accused). 

(with respect to nonconstitutional error, the burden of persuasion depends on the nature of the error; first, in the case of administrative mistake, the appellant must demonstrate prejudice; second, where the government has intentionally included or excluded a class of eligible members, the government must demonstrate lack of harm; and third, in the case of unlawful command influence, the government must prove beyond a reasonable doubt that the error was harmless). 

(where there was a nonconstitutional error in the categorical exclusion of a class of potential members from appellant’s court-martial based on dates of service at his base, the burden of persuasion rests with the government to show lack of harm). 

(in assessing the effectiveness of counsel, an appellate court applies the standard set forth in Strickland v. Washington, 466 US 668, 687 (1984), and begins with the presumption of competence announced in United States v. Cronic, 466 US 648, 658 (1984); the court applies a three-part test to determine whether the presumption of competence has been overcome: (1) are appellant’s allegations true; if so, is there a reasonable explanation for counsel’s actions; (2) if the allegations are true, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors, there would have been a different result). 

(an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms).

(claims of ineffective assistance of counsel are reviewed by an appellate court de novo). 

United States v. Prather, 69 M.J. 338 (the constitutionality of a statute is a question of law that an appellate court reviews de novo).

(an appellate court must evaluate the instructions given by the military judge in the context of the overall message conveyed to the jury).

United States v. Pope, 69 M.J. 328 (the CAAF will not reverse a conviction for an error of law unless that error materially prejudiced an accused’s substantial rights; it reviews de novo whether the government has met its burden of establishing that the error did not have a substantial influence on the findings in the context of the entire case).

(an appellate court affords substantial discretion to a military judge’s evidentiary rulings; however, where an objection invokes the MRE 403 balancing test but the military judge fails to conduct the test on the record, less deference is due).

(whether a jury was properly instructed is a question of law reviewed by an appellate court de novo). 

(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). 

(the cumulative effect of all plain errors and preserved errors is reviewed de novo). 

(under the cumulative-error doctrine, a number of errors, no one perhaps sufficient to merit reversal, in combination necessitate the disapproval of a finding; an appellate court will reverse only if it finds the cumulative errors denied appellant a fair trial). 

United States v. Luke, 69 M.J. 309 (with respect to whether a new trial should be granted based on newly discovered evidence, the reviewing court must make a credibility determination, insofar as it must determine whether the newly discovered evidence, if considered by a court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the accused; the reviewing court does not determine whether the proffered evidence is true; nor does it determine historical facts; it merely decides if the evidence is sufficiently believable to make a more favorable result probable).

(an appellate court may resolve a discovery issue without determining whether there has been a discovery violation if the court concludes that the alleged error would not have been prejudicial). 

(the CAAF’s methodology for reviewing issues of post-trial and appellate delay is to first determine whether the delay is facially unreasonable and, if so, it examines the four factors set forth by the Supreme Court in Barker v. Wingo, 407 US 514; those four factors are:  (1) the length of the delay, (2) the reasons for the delay, (3) the appellant’s assertion of the right to timely review and appeal, and (4) prejudice; if this analysis leads it to conclude that the appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

(issues of due process and whether constitutional error is harmless beyond a reasonable doubt are reviewed de novo). 

United States v. Jones, 69 M.J. 294 (an appellate court reviews a military judge’s ruling on a discovery request for an abuse of discretion).

(an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion). 

United States v. Hutchins, 69 M.J. 282 (in this case, the procedural deficiencies concerning the termination and replacement of the first detailed military assistant defense counsel present trial errors that can be evaluated under the standard formula for assessing prejudice against the defense, in which the defense must establish that the error produced material prejudice to the substantial rights of the accused; Article 59(a), UCMJ, requires that a case not be reversed for error unless the error materially prejudices the substantial rights of the accused).

United States v. Stefan, 69 M.J. 256 (whether Article 6(c), UCMJ, and RCM 1106(b) disqualify an individual from acting as the SJA is a question of law, which an appellate court reviews de novo).

(SJA recommendations prepared by a disqualified officer are not void; rather an appellate court tests for prejudice under Article 59(a), UCMJ, which requires material prejudice to the substantial rights of the accused; to find reversible error, an appellant must, inter alia, make some colorable showing of possible prejudice). 

United States v. Staton, 69 M.J. 228 (an appellate court reviews the military judge’s evidentiary rulings for an abuse of discretion).

(an appellate court reviews the admissibility of uncharged misconduct under MRE 404(b) using a three-part test: (1) Does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; (2) What fact of consequence is made more or less probable by the existence of this evidence - a question of logical relevance; and, (3) Is the probative value substantially outweighed by the danger of unfair prejudice).

United States v. Blazier, 69 M.J. 218 (for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of the Confrontation Clause of the Sixth Amendment is subject to that standard; in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold a conviction without the erroneously admitted evidence; rather, the question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction; this determination is made on the basis of the entire record, and its resolution will vary depending on the facts and particulars of the individual case).

United States v. White, 69 M.J. 236 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous; the military judge’s findings of fact are reviewed under a clearly erroneous standard and conclusions of law, de novo; if the court finds the military judge abused his discretion, it then reviews the prejudicial effect of the ruling de novo).

United States v. Savard, 69 M.J. 211 (if a military judge errs by declining to grant an Article 39(a) session under RCM 905(h), an appellant’s convictions may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused).

(with respect to a nonconstitutional error, the government has the burden of establishing that the error did not have a substantial influence on the findings). 

(in evaluating errors to see if they are harmless, the following test is employed:  if, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand).

United States v. Nerad, 69 M.J. 138 (the scope and meaning of Article 66(c), UCMJ, is a matter of statutory interpretation, a question of law reviewed by an appellate court de novo). 

(a CCA may approve only that part of a sentence that it finds should be approved; in reviewing the exercise of this power, the CAAF asks if the CCA abused its discretion or acted inappropriately - that is, arbitrarily, capriciously, or unreasonably - as a matter of law). 

United States v. Diaz, 69 M.J. 127 (an appellate court reviews a military judge’s decision to exclude evidence for an abuse of discretion; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect).

(a question of statutory interpretation is a question of law subject to de novo review). 

(an appellate court reviews a military judge’s decision to accept or reject a guilty plea as irregular for an abuse of discretion, and military judges are afforded broad discretion in deciding whether or not to accept a guilty plea). 

(an appellate court reviews nonconstitutional errors for prejudice under Article 59(a), UCMJ, and the burden is on the government to demonstrate that the error did not have a substantial influence on the findings; when evaluating claims of prejudice from an evidentiary ruling, an appellate court weighs four factors: (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).

United States v. Contreras, 69 M.J. 120 (whether a particular Article 130, UCMJ, criminal offense is a purely military offense is a question of law, which an appellate court reviews de novo). 

(an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal; when considering appellate delay, a court must balance four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice; no single factor is required for finding a due process violation, and the absence of a given factor will not prevent such a finding; where an appellant meets his burden in demonstrating unreasonable appellate delay, the burden shifts to the government to show that the due process violation was harmless beyond a reasonable doubt). 

United States v. Graner, 69 M.J. 104 (an appellate court reviews a military judge’s ruling on a request for the production of evidence under the strict standard of an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law).

(an appellate court reviews a military judge’s decision on whether to admit evidence for an abuse of discretion).

United States v. Lloyd, 69 M.J. 95 (a military judge’s ruling on a request for expert assistance is reviewed for an abuse of discretion; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; the abuse of discretion standard is a strict one, calling for more than a mere difference of opinion; the challenged action must be arbitrary, fanciful, clearly unreasonable, or clearly erroneous). 

(in reviewing for abuse of discretion a military judge’s ruling on a defense motion for expert assistance in the form of a blood spatter expert, an appellate court reviews the record material before the military judge at the time of the motion; although on appeal, more compelling theories may be made to demonstrate that a blood spatter expert was necessary, the military judge did not abuse her discretion by failing to adopt a theory that was not presented in the motion at the trial level; this is consistent with the general rule that a legal theory not presented at trial may not be raised for the first time on appeal absent exigent circumstances).

United States v. Yammine, 69 M.J. 70 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion).

(the threshold question under MRE 414 whether the proffered evidence is evidence of the accused’s commission of another offense of child molestation as defined by the rule is one of law, reviewed by an appellate court de novo). 

(when an appellate court finds a nonconstitutional error, it tests for prejudice; the question, which it reviews de novo, is whether the error had a substantial influence on the members’ verdict in the context of the entire case; in answering this question, it considers four factors: (1) the strength of the government’s case; (2) the strength of the defense case; (3) the materiality of the evidence in question; and (4) the quality of the evidence in question; when a fact was already obvious from testimony at trial and the evidence in question would not have provided any new ammunition, an error is likely to be harmless; conversely, where the evidence does provide new ammunition, an error is less likely to be harmless). 

United States v. Ayala, 69 M.J. 63 (the military judge’s finding regarding the primary purpose of an inspection is a matter of fact and the issue of whether the examination is an inspection is a matter of law that an appellate court will review de novo; purpose and intent are themselves classic questions of fact).

United States v. Estrada, 69 M.J. 45 (construction of regulations is a question of law, which an appellate court reviews de novo; similarly, an appellate court reviews a challenge to the lawfulness of a regulation de novo). 

(in interpreting regulations, an appellate court applies the general rules of statutory construction). 

United States v. Garner, 69 M.J. 31 (when considering a conviction pursuant to a guilty plea, an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; in doing so, the court applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea). 

United States v. Roberts, 69 M.J. 23 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; in doing so, it reviews findings of fact under a clearly erroneous standard and conclusions of law under a de novo standard). 

(to determine whether an error was harmless beyond a reasonable doubt, an appellate court applies the five-part balancing test articulated by the Supreme Court in Delaware v. Van Arsdall, 475 US 673 (1986): (1) the importance of the witness’s testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and, (5) of course, the overall strength of the prosecution’s case). 

United States v. Roach, 69 M.J. 17 (the question of whether a judge has acted consistent with a recusal, as a mixed question of law and fact, is reviewed de novo).

(a structural error in a judge’s recusal is inherently prejudicial; with respect to a nonstructural error in a judge’s recusal, it is tested for prejudice and an appellate court must determine if the error was harmless under the three factors set forth in Liljeberg v. Health Services Acquisition Corp, 486 US 847 (1988): the risk of injustice to the parties in the particular case, the risk that the denial of relief will produce injustice in other cases, and the risk of undermining the public’s confidence in the judicial process). 

(whether an appellant’s due process right to a speedy post-trial review has been violated is reviewed de novo). 

United States v. Serianne, 69 M.J. 8 (an appellate court reviews both the constitutionality and interpretation of a service instruction under a de novo standard of review).

United States v. Huntzinger, 69 M.J. 1 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs when the military judge’s findings of fact are clearly erroneous or based upon a misapprehension of the law).

(an appellate court reviews the legal question of sufficiency for finding probable cause de novo, using a totality of the circumstances test). 

(in determining whether a search was supported by probable cause, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed).

(reviewing court applies four key principles in reviewing probable cause determinations for a search authorization under MRE 315:  (1) the court views the facts in the light most favorable to the prevailing party; (2) the court gives substantial deference to the probable cause determination made by a neutral and detached magistrate; (3) the court resolves close cases in favor of the magistrate’s decision; and (4) the court views the facts in a commonsense manner). 

United States v. Jones, 68 M.J. 465 (in determining what constitutes a lesser-included offense in the military justice system, an appellate court applies the elements test and looks to whether the elements of the purported LIO are a subset of the elements of the charged offense; under the elements test, one compares the elements of each offense; if all of the elements of offense X are also elements of offense Y, then X is an LIO of Y; offense Y is called the greater offense because it contains all of the elements of offense X along with one or more additional elements). 

United States v. Bagstad, 68 M.J. 460 (in carrying out the objective test for implied bias, an appellate court determines whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high; challenges for actual or implied bias are evaluated based on the totality of the factual circumstances). 

(an appellate court’s standard of review on a challenge for cause premised on implied bias is less deferential than abuse of discretion, but more deferential than de novo review; it applies less deference in a case such as this one where the military judge did not place his analysis concerning the senior-subordinate relationship portion of the challenge on the record). 

United States v. Sutton, 68 M.J. 455 (the question of whether a specification states an offense is a question of law that an appellate court reviews de novo). 

United States v. Smith, 68 M.J. 445 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion; this abuse of discretion standard is also applied to alleged violations of the Sixth Amendment’s Confrontation Clause). 

(testimony is material if it is of consequence to the determination of an accused’s guilt; in determining whether evidence is of consequence to the determination of an accused’s guilt, an appellate court considers the importance of the issue for which the evidence was offered in relation to the other issues in the case, the extent to which this issue is in dispute, and the nature of other evidence in the case pertaining to this issue). 

United States v. Blazier, 68 M.J. 439 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion).

 
(whether evidence that was admitted constitutes testimonial hearsay is a question of law reviewed by an appellate court de novo).

United States v. Ferguson, 68 M.J. 431 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; in doing so, it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea).

(an appellate court will not overturn a military judge’s acceptance of a guilty plea based on a mere possibility of a defense; nor will it speculate post-trial as to the existence of facts which might invalidate an appellant’s guilty pleas). 

United States v. Clayton, 68 M.J. 419 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs when an appellate court determines that the military judge’s findings of fact are clearly erroneous or that he misapprehended the law). 

(in addressing whether a military judge erred in denying a motion to suppress evidence of a search authorized by a magistrate, an appellate court considers whether the military judge abused his discretion when he ruled as a matter of law that there was a substantial basis for finding that probable cause existed under MRE 315(f)(2)); an appellate court reviews the legal question of sufficiency for finding probable cause de novo using a totality of the circumstance test). 

(the framework for reviewing probable cause determinations under MRE 315 focuses on four key principles: (1) determinations of probable cause made by a neutral and detached magistrate are entitled to substantial deference; (2) resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the magistrate’s decision; (3) courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner; and (4) the evidence must be considered in the light most favorable to the prevailing party). 

(where an affidavit submitted in support of a search warrant application included erroneous information, an appellate court, on review of the trial judge’s motion to suppress, would set aside the erroneous information in the affidavit and determine whether there remained sufficient content in the warrant affidavit to support a finding of probable cause). 

United States v. Ross, 68 M.J. 415 (whether a verdict is ambiguous and thus precludes a CCA from performing a factual-sufficiency review is a question of law reviewed by the Court of Appeals for the Armed Forces de novo). 

United States v. Cowgill, 68 M.J. 388 (a military judge’s decision to find that probable cause existed to support a search authorization as well as to admit or exclude evidence is reviewed for an abuse of discretion; an abuse of discretion occurs if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law; in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 

United States v. Anderson, 68 M.J. 378 (a military judge’s ruling regarding the appointment of a government-funded expert is reviewed for an abuse of discretion and will only be overturned if the findings of fact are clearly erroneous or the decision is influenced by an erroneous view of the law).

(where appellant raises a due process argument, an appellate court’s test for prejudice must be whether the challenged action was harmless beyond a reasonable doubt). 

(an appellate court reviews multiplicity claims de novo). 

United States v. Maynulet, 68 M.J. 374 (the question of whether a jury was properly instructed is a question of law, and thus, review is de novo). 

United States v. Green, 68 M.J. 360 (in order to prevail on a claim of ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice; an appellate court may address these prongs in any order it chooses, because appellant must meet both in order to prevail). 

(an appellate court reviews ineffective assistance of counsel claims de novo). 

(in order to show prejudice on a claim of ineffective assistance of counsel, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome). 

United States v. Douglas, 68 M.J. 349 (once unlawful command influence is raised at the trial level, a presumption of prejudice is created; to affirm in such a situation, an appellate court must be convinced beyond a reasonable doubt that the unlawful command influence had no prejudicial impact on the court-martial).

(in a case involving unlawful command influence, an appellate court reviews issues involving a military judge’s decision not to dismiss for abuse of discretion; under this standard, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors). 

(an appellate court grants a military judge broad discretion in crafting a remedy to remove the taint of unlawful command influence, and it will not reverse so long as the decision remains within that range). 

(when a military judge crafts a reasonable and tailored remedy to remove unlawful command influence, and if the record reflects that the remedy has been implemented fully and no further objections or requests were made by the defense, then rather than requiring the government to prove a negative, an appellate court would be satisfied that the presumptive prejudice had been eliminated; however, when the record fails to include evidence that key components of the remedy were implemented, the presumption of prejudice flowing from the unlawful command influence has not been overcome; the government must then find an alternative way to meet its burden). 

United States v. Ellis, 68 M.J. 341 (an appellate court reviews a military judge’s decision to admit or exclude expert testimony over a defense objection for an abuse of discretion).

(when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of the relevant factors). 

United States v. Harmon, 68 M.J. 325 (an appellate court reviews questions of legal sufficiency de novo as a matter of law).

(the test for legal sufficiency is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

United States v. Smith, 68 M.J. 316 (the question of whether a jury was properly instructed is a question of law, and thus, review is de novo). 

(the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

(an appellate court reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty). 

United States v. Thompson, 68 M.J. 308 (an appellate court conducts its analysis of an Article 10 claim review de novo, giving substantial deference to the military judge’s findings of fact unless they are clearly erroneous). 

United States v. Neal, 68 M.J. 289 (the constitutionality of a statute is a question of law that an appellate court reviews de novo). 

United States v. Durbin, 68 M.J. 271 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion; whether a marital communication is privileged is a mixed question of fact and law; an appellate court reviews a trial court’s legal conclusions de novo, but gives its factual findings more deference, and will not reverse such findings unless they are clearly erroneous; the party asserting the marital privilege has the burden of establishing its applicability by a preponderance of the evidence). 

United States v. Green, 68 M.J. 266 (an appellate court reviews the issue of legal sufficiency de novo; in reviewing for legal sufficiency of evidence, this court must determine, whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact-finder could have found all the essential elements beyond a reasonable doubt). 

United States v. Lubasky, 68 M.J. 260 (the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt.).

United States v. Williams, 68 M.J. 252 (an appellate court defers to a military judge’s findings of fact unless they are clearly erroneous). 

(an appellate court reviews de novo the legal question as to whether the established facts and the violation of an Air Force regulation entitled appellant to additional confinement credit under RCM 305(k)). 

United States v. Ediger, 68 M.J. 243 (a military judge’s decision to admit or exclude evidence is reviewed for an abuse of discretion).

(where a military judge properly conducts the balancing test under MRE 403, an appellate court will not overturn his decision unless there is a clear abuse of discretion; however, where the military judge is required to do a balancing test under MRE 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference from that court). 

United States v. Ashby, 68 M.J. 108 (in reviewing for the legal sufficiency of evidence, an appellate court takes the facts in the light most favorable to the government and asks whether those facts would permit a reasonable factfinder to find all the elements of the charged offenses beyond a reasonable doubt; an appellate court reviews questions of legal sufficiency de novo).

(where the government chooses to incorporate separate offenses into a Article 133, UCMJ, charge and where the military judge has instructed on the elements of those offenses, an appellate court will analyze the legal sufficiency of the Article 133, UCMJ, offense by determining whether there was legally sufficient evidence supporting all of the elements instructed upon by the military judge). 

(an appellate court reviews a military judge’s decision on the admission of evidence in aggravation at sentencing for an abuse of discretion). 

(where the military judge conducts a proper MRE 403 balancing on the record, an appellate court will not overturn his ruling unless it finds a clear abuse of discretion). 

(an appellate court will not reverse a military judge’s determination on a mistrial absent clear evidence of an abuse of discretion). 

(when a trial error is of constitutional dimension, an appellate court must determine whether the error and the military judge’s curative efforts rendered it harmless beyond a reasonable doubt; in analyzing this question, an appellate court asks whether there is a reasonable possibility that the error complained of might have contributed to the conviction; the question is not whether the members were totally unaware of the error; rather, the essence of a harmless error is that it was unimportant in relation to everything else the members considered on the issue in question; the error is analyzed in the context of the entire court-martial). 

(in assessing whether a facially unreasonable delay has resulted in a due process violation, an appellate court weighs the following four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice). 

(having found a due process violation in unreasonable post-trial delay, an appellate court will grant relief unless it finds, under the totality of the circumstances, that the government has met its burden of showing that the constitutional error was harmless beyond a reasonable doubt; determining whether a due process error was harmless beyond a reasonable doubt necessarily involves analyzing the case for “prejudice,” but that analysis for “prejudice” is separate and distinct from the consideration of prejudice as one of the four Barker [407 US 514 (1972)] factors). 

(an appellate court reviews de novo the question of whether a constitutional error is harmless beyond a reasonable doubt). 

(in addressing whether the appearance of unlawful command influence has been created in a particular situation, an appellate court considers, objectively, the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; it will find the appearance of unlawful command influence where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(the question of whether a convening authority is an accuser under Article 1(9), UCMJ, is a question of law that an appellate court reviews de novo). 

(the test for determining whether a convening authority is an accuser is whether he was so closely connected to the offense that a reasonable person would conclude that he had a personal interest in the matter; personal interests relate to matters affecting the convening authority’s ego, family, and personal property, and a convening authority’s dramatic expression of anger towards an accused might also disqualify the commander if it demonstrates personal animosity; a personal interest has been found to exist where, for example, the convening authority is the victim in the case, where the accused attempted to blackmail the convening authority, and where the accused had potentially inappropriate personal contacts with the convening authority’s fiancée).

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). 

United States v. Schweitzer, 68 M.J. 133 (once a military judge has accepted an accused’s guilty pleas and entered findings of guilty, an appellate court will not set them aside unless it finds a substantial basis in law or fact for questioning the pleas). 

(convicted servicemembers have a due process right to timely review and appeal of courts-martial convictions; to rebut a due process violation, the government must show that the error was harmless beyond a reasonable doubt under the totality of the circumstances; where appellant has not suffered any prejudice under the fourth prong of the Moreno [63 MJ 129 (CAAF 2006)] speedy review and appeal test - ongoing prejudice in the form of oppressive incarceration, undue anxiety, or the impairment of the ability to prevail in a retrial - the government may more readily demonstrate that any error is harmless beyond a reasonable doubt). 

United States v. Bush, 68 M.J. 96 (aside from structural errors which are not susceptible of analysis for harm, a constitutional error, such as a post-trial due process violation, must be harmless beyond a reasonable doubt before an appellate court can affirm the resultant conviction or sentence).

(it is solely the government’s burden to persuade an appellate court that constitutional error is harmless beyond a reasonable doubt). 

(an appellate court reviews de novo both the determination of a post-trial delay due process violation and the question of whether such a violation is harmless beyond a reasonable doubt). 

(the determination of harmlessness for post-trial delay is different than that applied to constitutional trial errors; in the trial error arena, a determination of harmless beyond a reasonable doubt tests whether, beyond a reasonable doubt, the error did not contribute to the defendant’s conviction or sentence; in contrast, post-trial delays do not necessarily impact directly the findings or sentence; instead, an appellate court must review the record de novo to determine whether other prejudicial impact is present from the delay; unless the court concludes beyond a reasonable doubt that the delay generated no prejudicial impact, the government will have failed to attain its burden). 

(where there is a post-trial delay due process violation, the burden to show harmlessness beyond a reasonable doubt remains upon the government). 

(an appellate court reviews the totality of the circumstances to determine whether a post-trial delay due process violation is harmless beyond a reasonable doubt). 

(where an appellant alleges a due process violation in a post-trial delay context, and where a due process violation is found, the analysis performed by an appellate court necessarily involves two separate prejudice determinations; the initial prejudice review occurs in evaluating the fourth Barker [407 US 514 (1972)] factor, which defines prejudice to include oppressive incarceration, undue anxiety, and limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired; if a due process violation is found after balancing the Barker factors, an appellate court determines whether, under the totality of the circumstances, the error is harmless beyond a reasonable doubt; that harmless beyond a reasonable doubt review necessarily involves a prejudice analysis, and although it involves a review of the same record, the scope and burden differ from the Barker prejudice analysis). 

(no single factor is required for finding a due process violation as a result of post-trial delay, and the absence of a given factor will not prevent such a finding). 

(in a post-trial delay due process analysis, Barker [407 US 514 (1972)] factor four addresses specific prejudice to an appellant, not public perception; the public perception analysis is utilized in quantifying the appropriate weight that is to be given to Barker factors one (length of delay) and two (reasons for delay) when balancing all of the factors). 

(post-trial submissions have no automatic value as evidence where they are not relevant or where they are not based upon personal knowledge of the declarant). 

(with respect to determining whether an appellant meets his burden of demonstrating fourth-prong, Barker [407 US 514 (1972)] prejudice or with respect to reviewing the entire record to determine if a post-trial delay due process violation is harmless beyond a reasonable doubt, a reviewing court must first determine whether post-trial submissions merit consideration). 

(in circumstances where a record establishes that an appellant has suffered Barker [407 US 514 (1972)] prejudice, the government’s burden to establish that the constitutional violation was harmless beyond a reasonable doubt may be difficult to attain). 

(in those cases where the record does not reflect Barker [407 US 514 (1972)] prejudice, as a practical matter, the burden to establish harmlessness from the post-trial delay may be more easily attained by the government). 

(at the totality-of-the-circumstances, harmless-error prejudice determination stage, there is no presumption of prejudice in cases where an appellate court has found a due process violation as a result of unreasonable post-trial delay in the absence of Barker [407 US 514 (1972)] prejudice; an appellate court does not presume prejudice based on the length of the delay alone). 

United States v. Smead, 68 M.J. 44 (when an appellate issue concerns the meaning and effect of a PTA, interpretation of the agreement is a question of law, subject to review under a de novo standard; when appellant contends that the government has not complied with a term of the agreement, the issue of noncompliance is a mixed question of fact and law). 

(appellant bears the burden of establishing that a PTA term is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside).

(an appellate court reviews a military judge’s acceptance of a plea for abuse of discretion, and it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea). 

United States v. Matthews, 68 M.J. 29 (CAAF reviews de novo a CCA’s conclusion that MRE 509 [Privileges - Deliberations of courts and juries] is inapplicable to military judges).

Loving v. United States, 68 M.J. 1 (an appellate court considers claims of ineffective assistance of counsel under the two-prong test of Strickland; first, an appellant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, appellant must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive appellant of a fair trial, a trial whose result is reliable; the court need not analyze the Strickland prongs in any particular order).

(to establish prejudice under Strickland, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the context of a capital case challenging the death sentence, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence; the question is whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance). 

(in considering claims of ineffective assistance of counsel, an appellate court undertakes review of the prejudice prong de novo).

(under the standards of 28 USC § 2254(d), a habeas review of a constitutional claim would normally employ a deferential review of the challenged decision.). 

(to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing). 

United States v. Mazza, 67 M.J. 470 (to prevail on a claim of ineffective assistance of counsel, an appellant must show both that the counsel’s performance was deficient and that the deficiency resulted in prejudice; ultimately, the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result; a successful ineffectiveness claim requires a finding of both deficient performance and prejudice; there is no requirement that an appellate court address both components of the inquiry if appellant makes an insufficient showing on one; an appellate court reviews both prongs of the Strickland analysis de novo).

(an appellate court’s analysis of counsel’s performance is highly deferential; it is not to assess counsel’s actions through the distortion of hindsight; rather it is to consider counsel’s actions in light of the circumstances of the trial and under the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy). 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel; where an appellant attacks the trial strategy or tactics of the defense counsel, the appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms).    

United States v. Paige, 67 M.J. 442 (in determining whether a trial counsel violated an accused’s right not to testify at his court-martial, an appellate court examines a prosecutorial comment within the context of the entire court-martial).

(whether a trial counsel’s comments improperly invoked appellant’s constitutional right not to testify is a question of law that an appellate court reviews de novo; where defense counsel did not object to any of trial counsel’s comments, an appellate court reviews for plain error). 

(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).

United States v. Chatfield, 67 M.J. 432 (a military judge’s denial of a motion to suppress a confession is reviewed for an abuse of discretion).

(an appellate court will not disturb a military judge’s findings of fact unless they are clearly erroneous or unsupported by the record). 

(an appellate court reviews de novo any conclusions of law supporting the suppression ruling on a confession, including:  (1) whether someone is in custody for the purposes of Miranda warnings; or (2) whether a confession is involuntary).

(in determining whether a confession was voluntary, an appellate court reviews the totality of the circumstances to determine whether appellant’s will was overborne and his capacity for self-determination was critically impaired; the factors to consider include both the characteristics of the accused and the details of the interrogation). 

(an appellate court grants deference to a military judge’s determination that appellant’s testimony was not believable because the judge is in a unique position to decide the appropriate weight to give that testimony). 

United States v. Marshall, 67 M.J. 418 (to prevail on a fatal variance claim, an appellant must show both that the variance was material and that he was substantially prejudiced thereby).

(a variance that is material is one that substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense). 

(a variance can prejudice an appellant by (1) putting him at risk of another prosecution for the same conduct, (2) misleading him to the extent that he has been unable adequately to prepare for trial, or (3) denying him the opportunity to defend against the charge). 

United States v. Weston, 67 M.J. 390 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion, and it reviews the judge’s findings of fact for clear error and the judge’s conclusions of law de novo).

United States v. Miller, 67 M.J. 385 (whether an offense is a lesser included offense is a question of law that an appellate court reviews de novo).

United States v. Nance, 67 M.J. 362 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; a military judge abuses this discretion if he fails to obtain from the accused an adequate factual basis to support the plea - an area in which an appellate court affords significant deference).

(although the use of leading questions that do no more than elicit “yes” and “no” responses during the providence inquiry is disfavored, a military judge’s use of leading questions does not automatically result in an improvident plea; rather, the totality of the circumstances of the providence inquiry are examined, including the stipulation of fact, as well as the relationship between the accused’s responses to leading questions and the full range of the accused’s responses during the plea inquiry). 

United States v. Collier, 67 M.J. 347 (a military judge’s ruling that bias evidence is inadmissible is reviewed for an abuse of discretion; for the ruling to be an abuse of discretion, it must be more than a mere difference of opinion; rather, it must be arbitrary, fanciful, clearly unreasonable or clearly erroneous). 

(although a military judge enjoys wide discretion in applying MRE 403 balancing, an appellate court gives military judges less deference if they fail to articulate their balancing analysis on the record).   

(members are presumed to follow a military judge’s instructions to consider evidence for a proper purpose, such as bias or motive to misrepresent, and not let personal beliefs or feelings affect their determinations about witness credibility). 

(in the case of limitation of cross-examination, the correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt; the burden is on the government to show that there is no reasonable possibility that the error contributed to the contested findings of guilty; an error has not contributed to the verdict when it was unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record; to find that the error warrants relief, an appellate court need not conclude that appellant’s defense would have succeeded; instead the inquiry should focus on whether the military judge’s ruling essentially deprived appellant of her best defense that may have tipped the credibility balance in appellant’s favor; in this regard, an appellate court balances the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case). 

United States v. Sanders, 67 M.J. 344 (as the sentencing authority, a military judge is presumed to know the law and apply it correctly, absent clear evidence to the contrary). 

(an appellate court presumes that a military judge follows her own rulings). 

United States v. Riddle, 67 M.J. 335 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo).

(once the military judge has accepted the pleas and entered findings based upon them, an appellate court will not set them aside unless it finds a substantial conflict between the pleas and the accused’s statements or other evidence of record; more than a mere possibility of conflict is required; instead, an appellate court must find something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding the appellant’s guilty plea). 

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. Delarosa, 67 M.J. 318 (on appeal of a motion to suppress incriminating statements, an appellate court accepts the military judge’s findings of historical fact unless they are clearly erroneous, and it reviews the military judge’s conclusions of law de novo). 

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. Gardinier, 67 M.J. 304 (for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 U.S. 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; evidence admitted in violation of Article 31, UCMJ, or the Confrontation Clause of the Sixth Amendment is subject to that standard; whether a constitutional error in admitting evidence is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo).

(an appellate court considers the legality of an order de novo). 

United States v. Von Bergen, 67 M.J. 290 (an appellate court reviews a military judge’s decision whether to order relief from a waiver of an Article 32, UCMJ, investigation for an abuse of discretion). 

(an appellate court reviews a military judge’s conclusions of law under the de novo standard; if a military judge’s ruling is based on an erroneous view of the law, he has abused his discretion). 

(Article 32, UCMJ, errors are tested on direct review for prejudice as defined by Article 59(a), UCMJ).

(an appellate court reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard). 

(whether evidence constitutes testimonial hearsay is a question of law reviewed de novo). 

(the government bears the burden of establishing that a constitutional error has no causal effect upon the findings; to carry its burden in this case, the government had to demonstrate that there was no reasonable possibility that the testimonial German civilian police report contributed to the contested finding of guilty to possession of marijuana with the intent to distribute).

United States v. Stephens, 67 M.J. 233 (an appellate court tests a military judge’s admission or exclusion of evidence, including sentencing evidence, for an abuse of discretion).

(when the military judge conducts a proper balancing test under MRE 403 on the record, that ruling will not be overturned by an appellate court absent a clear abuse of discretion; the ruling of a military judge who fails to do so will receive correspondingly less deference). 

(where a military judge fails to conduct an MRE 403 balancing test on the record, an appellate court will examine the record itself). 

United States v. Dean, 67 M.J. 224 (interpretation of a pretrial agreement and interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo).

United States v. Macomber, 67 M.J. 214 (an appellate court reviews a military judge’s denial of a motion to suppress for an abuse of discretion; an abuse of discretion occurs if the military judge finds clearly erroneous facts or misapprehends the law).

(the task of a reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant; this standard reflects the law’s preference for warrants and for independent review by magistrates). 

(in reviewing a decision that there was probable cause for a search, an appellate court must keep in mind that a determination of probable cause by a neutral and detached magistrate is entitled to substantial deference; a deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; resolution of doubtful or marginal cases should be largely determined by the preference for warrants, and close calls will be resolved in favor of sustaining the magistrate’s decision; a grudging or negative attitude by reviewing courts towards warrants, is inconsistent with the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant; courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner). 

(the duty of the reviewing court is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place). 

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 

United States v. Rogers, 67 M.J. 162 (an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion; an abuse of discretion exists if the military judge found clearly erroneous facts or misapprehended the law; further, it reviews the facts in the light most favorable to the prevailing party below). 

United States v. Goodin, 67 M.J. 158 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion).

United States v. Kuemmerle, 67 M.J. 141 (an appellate court reviews questions of jurisdiction de novo).         

United States v. Conliffe, 67 M.J. 127 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion).

(it is an abuse of discretion if a military judge fails to obtain from the accused an adequate factual basis to support the plea; in addition, it is an abuse of discretion if a military judge’s ruling is based on an erroneous view of the law). 

 
(while an appellate court reviews questions of law de novo, military judges are afforded broad discretion in whether or not to accept a plea; this discretion is reflected in appellate application of the substantial basis test:  does the record as a whole show a substantial basis in law or fact for questioning the guilty plea). 

United States v. Thompson, 67 M.J. 106 (an appellate court reviews de novo whether a constitutional error in admitting evidence at trial was harmless).

(before a federal constitutional error can be held harmless, an appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; if there is a reasonable possibility that the evidence or error complained of might have contributed to the conviction, then the constitutional error was not harmless beyond a reasonable doubt). 

(when determining whether a constitutional error is harmless, an appellate court should review the entire record). 

United States v. DiPaola, 67 M.J. 98 (once it is determined that a specific instruction is required but not given, the test for determining whether this constitutional error was harmless is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained; stated differently, the test is:  is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error).   

United States v. Crudup, 67 M.J. 92 (the denial of an accused’s Sixth Amendment right to cross-examine a witness may be tested for harmlessness).

(appellant court will not set aside a conviction as the result of a constitutional error if it may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt). 

(whether a constitutional error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts; these factors include the importance of the witness’s testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case; it is a better practice to review and balance all of these factors rather than rely on only one of them). 

(whether a constitutional error in admitting evidence is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo). 

United States v. Wuterich, 67 M.J. 32 (a military judge’s decision to quash a subpoena is reviewed under an abuse of discretion standard). 

United States v. Yanger, 67 M.J. 56 (rejection of a guilty plea requires that the record of trial show a substantial basis in law or fact for questioning the plea). 

Denedo v. United States, 66 M.J. 114 (on direct appeal in courts-martial in which the sentence extends to a punitive discharge, the CCA conducts a de novo review of the findings and sentence approved by the convening authority). 

(an accused making a claim of ineffective assistance must surmount a very high hurdle; courts reviewing such a claim must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the presumption of competence will not be overcome unless the accused demonstrates:  first, a deficiency that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and second, that the accused was prejudiced by errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable; when challenging the effectiveness of counsel in a guilty plea case, the accused must also show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

(the burden of establishing the truth of factual matters relevant to the claim of ineffective assistance rests with the accused; if there is a factual dispute on a matter pertinent to the claim, the determination as to whether further factfinding will be ordered is resolved under United States v. Ginn, 47 MJ 236 (CAAF 1997)). 

United States v. Wilcox, 66 M.J. 442 (an appellate court reviews questions of legal sufficiency de novo as a matter of law; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

(the CAAF’s jurisprudence on charged violations of Article 134, UCMJ, involving speech recognizes the importance of the context of that speech; consistent with the focus on context necessary to establish a violation of Article 134, UCMJ, while speech that would be impervious to criminal sanction in the civilian world may be proscribed in the military, the CAAF has long recognized that when assessing a criminal violation implicating the First Amendment, the proper balance must be struck between the essential needs of the armed services and the right to speak out as a free American; necessarily, the CAAF must be sensitive to protection of the principle of free thought; prior to applying this balancing test to a charged violation of Article 134, UCMJ, involving speech, two threshold determinations must be made:  first, the speech involved must be examined to determine whether it is otherwise protected under the First Amendment, and second, the government must have proved the elements of an Article 134, UCMJ, offense). 

(if an accused’s speech is otherwise protected by the First Amendment, and if a reasonably direct and palpable connection between the speech and the military mission or military environment is established, only then need an appellate court determine whether criminalization of that speech is justified despite First Amendment concerns; ultimately, an appellate court must weigh the gravity of the effect of the speech, discounted by the improbability of its effectiveness on the audience the speaker sought to reach, to determine whether the conviction is warranted; where the record does not establish a reasonably direct and palpable connection between the speech and the military at all, let alone the military mission or military environment, the balancing test is mooted by the legal insufficiency of the charged offense). 

United States v. Czachorowski, 66 M.J. 432 (an appellate court reviews an evidentiary ruling with regard to the residual hearsay exception of MRE 807 for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo). 

United States v. Bartlett, 66 M.J. 426 (an appellate court reviews claims of error in the selection of members of courts-martial de novo as questions of law).

(there is a strong presumption that an error is not structural). 

(in deciding issues of improper court member selection, an appellate court employs a case-specific rather than a structural-error analysis).  

(the burden of demonstrating prejudice, or the lack thereof, from nonconstitutional error in the detailing of court members depends on the manner in which the error occurred; in those cases where an appellate court concludes that the error resulted from unlawful command influence -- attempts to affect the outcome of the trial through the selection of particular members – it will not affirm unless the government establishes beyond a reasonable doubt that the error was harmless; where a convening authority has intentionally included or excluded certain classes of individuals from membership, in an attempt to comply with the requirements of Article 25, UCMJ - such as exclusion of junior officers and enlisted members because senior officers possess better maturity and judgment – an appellate court will place the burden on the government to demonstrate lack of harm; on the other hand, when there is a simple administrative error, the burden in on appellant to show prejudice). 

(where an error in exempting certain classes of officers from court-martial service was not a simple administrative mistake but mandated by an Army regulation, the government has the burden of showing the error was harmless). 

United States v. Ober, 66 M.J. 393 (an appellate court reviews de novo the question whether the evidence is legally sufficient to support a finding of guilty for transporting child pornography in interstate commerce; the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

(whether a court-martial panel was properly instructed is a question of law that an appellate court reviews de novo). 

United States v. Bright, 66 M.J. 359 (legal sufficiency is a question of law that an appellate court reviews de novo; the test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, any reasonable factfinder could have found all the essential elements of the offense beyond a reasonable doubt). 

(in resolving questions of legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

United States v. Elfayoumi, 66 M.J. 354 (to test whether there is substantial doubt about the fairness of the trial, an appellate court evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; this review is based on the totality of the circumstances; although an appellate court reviews issues of implied bias for an abuse of discretion, because it applies an objective test, it applies a less deferential standard than it would when reviewing a claim of actual bias). 

United States v. Webb, 66 M.J. 89 (in cases where the defense has requested any undisclosed impeachment evidence, an appellate court requires the government to show that nondisclosure is harmless beyond a reasonable doubt). 

(an appellate court reviews a military judge’s decision to order a new trial for an abuse of discretion; a military judge abuses her discretion when her findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Upham, 66 M.J. 83 (Article 59(a), UCMJ, states that 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; for most constitutional errors at trial, an appellate court applies the harmless error test set forth in Chapman v. California, 386 US 18 (1967), to determine whether the error is harmless beyond a reasonable doubt; an appellate court applies the Supreme Court’s structural error analysis, requiring mandatory reversal, when the error affects the framework within which the trial proceeds, rather than simply an error in the trial process itself). 

 
(an instructional error as to the elements of an offense should be tested for harmlessness, and should not be treated as a structural error; harmless error analysis can be applied not only to omitted instructions, but also to instructions that are defective because they incorrectly describe elements or presume elements). 

(when an erroneous instruction raises constitutional error, an appellate court assesses two factors:  whether the matter was contested, and whether the element at issue was established by overwhelming evidence; where an appellate court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless). 

(an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was not so intrinsically harmful as to require automatic reversal of appellant’s conviction on the lesser included offense of assault consummated by battery; as such, the erroneous instruction was subject to a harmlessness test).

 
(an instructional error on the offense of aggravated assault that improperly directed the members to presume the element of offensive touching if they found proof of certain predicate facts, but did not remove the burden on the government to prove the predicate facts beyond a reasonable doubt, was harmless, and thus did not preclude affirming appellant’s conviction on the lesser included offense of assault consummated by battery, where appellant did not contest the element of offensive touching at trial, but acknowledged that he had no justification for engaging in unprotected sex with the victim without informing her of his HIV status, and that his actions caused her great mental anguish). 

United States v. Michael, 66 M.J. 78 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard; a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

United States v. Lopez de Victoria, 66 M.J. 67 (a question of statutory construction is a question of law to be decided de novo). 

United States v. Cucuzzella, 66 M.J. 57 (an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact).

(in determining whether a statement was made with some expectation of receiving medical benefit or treatment, a military judge’s finding as to the declarant’s state of mind in making a statement is a preliminary question of fact under MRE 104(a); as such, it will be set aside only if clearly erroneous; in making this determination, the military judge should look to the circumstances surrounding the proffered testimony to determine that the appropriate indicia of reliability are present). 

United States v. Wilson, 66 M.J. 39 (an appellate court rejects a guilty plea only where the record shows a substantial basis in law and fact for questioning a plea, and it reviews a military judge’s decision to accept a guilty plea for an abuse of discretion).

(in considering whether the evidence is legally sufficient to support an essential element of an offense, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the element beyond a reasonable doubt). 

United States v. Stevenson, 66 M.J. 15 (an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo).

(an erroneous deprivation of the right to a public trial is structural error, which requires an appellate court to overturn appellant’s conviction without a harmlessness analysis).

United States v. Gutierrez, 66 M.J. 329 (issues involving ineffective assistance of counsel involve mixed questions of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but looks at the questions of deficient performance and prejudice de novo). 

(claims of ineffective assistance of counsel are analyzed by an appellate court under the test outlined by the Supreme Court in Strickland v. Washington, 466 US 668 (1984), and considers (1) whether counsel’s performance fell below an objective standard of reasonableness, and (2) if so, whether, but for the deficiency, the result would have been different; the accused has the burden of demonstrating both deficient performance and prejudice; an appellate court is not required to apply these tests in any particular order; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed).    

(to show prejudice under the Strickland test, an accused must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; in demonstrating this reasonable probability, the accused must show a probability sufficient to undermine confidence in the outcome; in other words, when an accused challenges his conviction based on ineffective assistance of counsel, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt). 

(the test for prejudice flowing from ineffective assistance of counsel, and the burden for proving the existence of prejudice, is substantially different from the harmless beyond a reasonable doubt test applied to constitutional errors where the burden is on the government to prove that the error did not contribute to the guilty finding; the proper test for assessing prejudice flowing from ineffective assistance of counsel is to look at all the evidence before the factfinder to determine if the accused has met his burden to demonstrate a reasonable probability that the factfinder’s decision would have been different).

United States v. Bragg, 66 M.J. 325 (an appellate court gives a military judge great deference when deciding whether actual bias exists because it is a question of fact, and the judge has observed the demeanor of the challenged member; a military judge is afforded less deference when an appellate court reviews a challenge for cause based on implied bias because the issue is objectively viewed through the eyes of the public, focusing on the appearance of fairness; thus, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo; however, a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted).

(in making judgments regarding implied bias, an appellate court looks at the totality of the factual circumstances; implied bias exists when, regardless of an individual member’s disclaimer of bias, most people in the same position would be prejudiced [i.e., biased]). 

United States v. Inabinette, 66 M.J. 320 (the standard for reviewing a military judge’s decision to accept a plea of guilty is an abuse of discretion; a military judge abuses his discretion if he accepts a guilty plea without an adequate factual basis to support the plea - an area in which an appellate court affords the judge significant deference; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion; the military judge’s determinations of questions of law arising during or after the plea inquiry are reviewed de novo). 

(in reviewing a military judge’s acceptance of a plea for an abuse of discretion, appellate courts apply a substantial basis test:  does the record as a whole show a substantial basis in law and fact for questioning the guilty plea; traditionally, this test is presented in the conjunctive (i.e., law and fact); however, the test is better considered in the disjunctive (i.e., law or fact)). 

(in summary, an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion and questions of law arising from the guilty plea de novo; in doing so, it applies the substantial basis test, looking at whether there is something in the record of trial, with regard to the factual basis or the law, that would raise a substantial question regarding appellant’s guilty plea).

United States v. McIlwain, 66 M.J. 312 (whether a military judge should disqualify himself or herself is viewed objectively, and is assessed not in the mind of the military judge himself or herself, but rather in the mind of a reasonable man who has knowledge of all the facts; military judges should broadly construe possible reasons for disqualification, but also should not recuse themselves unnecessarily).

(an appellate court will reverse a military judge’s decision on the issue of recusal only for an abuse of discretion). 

(not every judicial disqualification error requires reversal; in determining whether a judge’s disqualification warrants a remedy, an appellate court will follow the three-part test announced by the Supreme Court in Liljeberg v. Health Services Acquisition Corp., 486 US 847(1988):  (1) the risk of injustice to the parties, (2) the risk that the denial of relief will produce injustice in other cases, and (3) the risk of undermining public confidence in the judicial process). 

United States v. Miller, 66 M.J. 306 (an appellate court reviews a military judge’s decision to suppress or admit evidence for an abuse of discretion; a military judge abuses his discretion when his findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law). 

United States v. Travis, 66 M.J. 301 (whether an error, constitutional or otherwise, was harmless, is a question of law that an appellate court reviews de novo). 

United States v. Hart, 66 M.J. 273 (when an accused contests personal jurisdiction on appeal, an appellate court reviews that question of law de novo, accepting the military judge’s findings of historical facts unless they are clearly erroneous or unsupported in the record). 

United States v. Navrestad, 66 M.J. 262 (an appellate court review questions of legal sufficiency de novo as questions of law; legal sufficiency is determined by asking whether, considering the evidence in the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements beyond a reasonable doubt). 

United States v. Adams, 66 M.J. 255 (administrative errors in the drafting of a convening order are not necessarily fatal to jurisdiction, and may be tested for prejudice under Article 59(a), UCMJ). 

United States v. Gallagher, 66 M.J. 250 (an appellate court reviews a military judge’s ruling on a motion to suppress evidence for an abuse of discretion; it reviews findings of fact for clear error and conclusions of law de novo). 

United States v. Maynard, 66 M.J. 242 (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). 

(once a military judge has accepted a plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record; the mere possibility of such a conflict is not enough to overturn the plea on appeal). 

United States v. Greatting, 66 M.J. 226 (a military judge’s decision not to recuse himself is reviewed for an abuse of discretion). 

(in reviewing a military judge’s ruling on a recusal motion, an appellate court considers the facts and circumstances under an objective standard; the test is whether there was any conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge’s impartiality might reasonably be questioned).

(in determining whether relief is warranted when a military judge abused his discretion by denying a recusal motion, an appellate court considers the following three factors:  (1) the risk of injustice to the parties in the particular case; (2) the risk that the denial of relief will produce injustice in other cases; and (3) the risk of undermining the public’s confidence in the judicial process). 

United States v. Larson, 66 M.J. 212 (an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo; evidence is considered in the light most favorable to the prevailing party).

(whether there is prejudice with respect to a claim of ineffective assistance of counsel depends on whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt; the appellant bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). 

United States v. Glenn, 66 M.J. 64 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion; it will not set aside a plea of guilty on appeal unless there is a substantial basis in law and fact for questioning the guilty plea).

United States v. Hall, 66 M.J. 53 (whether an error, constitutional or otherwise, was harmless, is a question of law that an appellate court reviews de novo; for nonconstitutional errors, the government must demonstrate that the error did not have a substantial influence on the findings).

United States v. Holbrook, 66 M.J. 31 (to reject a guilty plea, the trial record must show a substantial basis in law and fact for questioning the guilty plea; review of the statutory elements required to establish an offense is a question of law that an appellate court undertakes de novo; if appellant’s providence inquiry established the facts necessary to support the elements of the UCMJ offense charged, the plea to that charge is provident).

(not every fact regarding a qualification for enlistment may be material; the President’s addition of the adjective “material” to the second element of the fraudulent enlistment offense in the MCM – that the accused knowingly misrepresented or deliberately concealed a certain material fact or facts regarding his qualifications for enlistment or appointment - limits the scope of actionable untruths regarding qualifications for enlistment; in determining whether a statement is material to qualifications for enlistment, an appellate court looks at what the misrepresentation concealed and what qualities the service sought to assess in determining fitness for duty; the threshold is low, as a material statement is one that need only have a tendency to influence the decision-making body to which it is addressed). 

United States v. Rodriguez, 66 M.J. 201 (whether a CCA can affirm a conviction for a single act after determining that the evidence is factually insufficient to support the “on divers occasions” general verdict returned by the factfinder at trial is a question of law that the CAAF reviews de novo). 

United States v. Mackie, 66 M.J. 198 (an appellate court reviews a military judge’s decision to grant or deny a motion for a sanity board for an abuse of discretion; a military judge abuses his discretion when the findings of fact upon which he predicates his ruling are not supported by the evidence of record, if incorrect legal principles were used, or if his application of the correct legal principles to the facts is clearly unreasonable). 

United States v. Mitchell, 66 M.J. 176 (an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion).

(once a military judge accepts an accused’s plea as provident and enters findings based on the plea, an appellate court will not reject the plea unless there is a substantial basis in law and fact for questioning the guilty plea; the mere possibility of a conflict is not sufficient to overturn a military judge’s acceptance of a guilty plea). 

United States v. Day, 66 M.J. 172 (the test for legal sufficiency of the evidence is whether, considering the evidence in the light most favorable to the prosecution, any reasonable fact-finder could have found all the essential elements beyond a reasonable doubt).

(an appellate court’s assessment of an appellant’s guilt or innocence for legal sufficiency is limited to the evidence presented at trial). 

United States v. Harris, 66 M.J. 166 (appellant has the burden of establishing his entitlement to relief for pretrial punishment under Article 13, UCMJ). 

(in reviewing pretrial confinement issues, an appellate court defers to the military judge’s findings of fact, including a finding there was no intent to punish, where they are not clearly erroneous). 

(in reviewing pretrial confinement issues, an appellate court reviews de novo the application of the facts to the law and whether appellant is entitled to credit for violations of the law). 

United States v. Harcrow, 66 M.J. 154 (considering whether  the laboratory reports in this case constitute inadmissible hearsay under Crawford v. Washington is a question of law that an appellate court reviews de novo).

(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). 

(where a case involves constitutional error, the question is whether the government has shown that the error was harmless beyond a reasonable doubt).

United States v. Nieto, 66 M.J. 146 (where there was no objection by the defense to hypothetical questions asked by the trial counsel during the voir dire of panel members, an appellate court applies a plain error standard of review to the defense allegation that the prosecution improperly sought to obtain from the panel members a commitment to convict appellant based upon a hypothetical set of facts).

(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). 

United States v. Allende, 66 M.J. 142 (substantial omissions from the record of trial create a presumption of prejudice that may be rebutted by the government). 

(any deficiency with respect to explaining the need for substitute authentication of the record of trial is tested for prejudice under a harmless error standard of review). 

(a ruling by a court of criminal appeals that appellant was not prejudiced by an erroneous substitute authentication of the record of trial is a question of law that CAAF reviews de novo). 

(where the error in the substitute authentication of the record of trial by trial counsel, an official designated by Article 54(a), UCMJ, as eligible to authenticate the record in a substitute capacity, involved the adequacy of the explanation for use of a substitute authority, the burden is on appellant to demonstrate prejudice). 

United States v. Scott, 66 M.J. 1 (whether matters contained in an addendum to the SJAR constitute new matter that must be served upon an accused is a question of law that is reviewed de novo). 

United States v. Wallace, 66 M.J. 5 (an appellate court reviews a military judge’s ruling on a defense motion to suppress the results of a search of appellant’s computer for an abuse of discretion; findings of fact and conclusions of law are reviewed under the clearly erroneous and de novo standards, respectively).

(an appellate court determines the voluntariness of a consent to seizure from the totality of all the circumstances). 

United States v. Reed, 65 M.J. 487 (in the course of addressing command influence issues, appellate courts must consider apparent as well as actual unlawful command influence).

 
(where the issue of unlawful command influence is litigated on the record, the military judge’s findings of fact are reviewed under a clearly-erroneous standard, but the question of command influence flowing from those facts is a question of law that an appellate court reviews de novo). 

 
(with respect to an appellant’s contention that a case was tainted by the appearance of unlawful command influence, an appellate court’s evaluation is highly case-specific; in addition to considering the specific words at issue in the context of the charged offenses, it also takes into account factors such as the means and scope of dissemination, remedial action within the command in general and with respect to potential court members in particular, the degree to which the record itself demonstrates that the defense has had a full opportunity to explore the issue, whether the government has been forthcoming in its response, and whether the military judge has taken any necessary corrective action). 

United States v. Townsend, 65 M.J. 460 (to test whether there is substantial doubt about the fairness of the trial, one evaluates implied bias objectively, through the eyes of the public, reviewing the perception or appearance of fairness of the military justice system; the inquiry is to determine whether the risk that the public will perceive that the accused received something less than a court of fair, impartial members is too high). 

(an appellate court reviews issues of implied bias for abuse of discretion). 

(although an appellate court reviews issues of implied bias for abuse of discretion, the objective nature of the inquiry dictates that it accord a somewhat less deferential standard to implied bias determinations of a military judge). 

 
(where a military judge does not indicate on the record that he has considered the liberal grant mandate in ruling on a challenge for implied bias, an appellate court will accord that decision less deference during its review of the ruling; consequently, it will overturn a military judge’s ruling on an accused’s challenge where he clearly abuses his discretion in applying the liberal grant mandate; in this case, where the military judge assessed the credibility and demeanor of a potential member on the record, but the judge’s ruling denying the challenge for cause of the member did not reflect whether he considered either implied bias or the liberal grant rule, less deference is accorded to his ruling than to one which reflected consideration of implied bias in the context of the liberal grant mandate). 

United States v. Freeman, 65 M.J. 451 (an appellate court reviews a military judge’s decision to deny a motion to suppress evidence -- like other decisions to admit or exclude evidence -- for an abuse of discretion; abuse of discretion is a term of art applied to appellate review of the discretionary judgments of a trial court; an abuse of discretion occurs when the trial court’s findings of fact are clearly erroneous or if the court’s decision is influenced by an erroneous view of the law; further, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range).

(the voluntariness of a confession is a question of law that an appellate court reviews de novo; an appellate court examines the totality of the surrounding circumstances to determine whether the confession is the product of an essentially free and unconstrained choice by its maker; in determining whether an accused’s will was overborne in a particular case, the court assesses both the characteristics of the accused and the details of the interrogation; some of the factors taken into account have included the youth of the accused, his lack of education, his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep; the court determines the factual circumstances surrounding the confession, assesses the psychological impact on the accused, and evaluates the legal significance of how the accused reacted). 

(to prevail on a servicemember’s request for investigative or other expert assistance, the mere possibility of assistance is not sufficient; instead, the accused has the burden of establishing that a reasonable probability exists that (1) an expert would be of assistance to the defense, and (2) that denial of expert assistance would result in a fundamentally unfair trial; to establish the first prong, the accused must show (1) why the expert assistance is needed, (2) what the expert assistance would accomplish for the accused, and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop). 

 
(an appellate court reviews a military judge’s decision on a defense request for investigative or other expert assistance for an abuse of discretion). 

United States v. Hunter, 65 M.J. 399 (the interpretation of provisions of the RCM, and whether a term in a PTA violates the RCM, are questions of law that an appellate court reviews de novo; ordinary rules of statutory construction apply in interpreting the RCM). 

(when an appellate court finds an error in the providence of a plea, it will reject the plea only where the appellant demonstrates a material prejudice to a substantial right). 

United States v. Rhoades, 65 M.J. 393 (an appellate court reviews a military judge’s decision on a motion to disqualify counsel for an abuse of discretion; the military judge’s ruling will be overturned only if the findings of fact are clearly erroneous or the decision is influenced by an erroneous interpretation of the law). 

(an appellate court reviews de novo the military judge’s legal conclusion that an appellant’s pleas were provident).

United States v. Pack, 65 M.J. 381 (the question of what law controls resolution of a claimed constitutional violation is one of law, which an appellate court reviews de novo).

(overruling case law by implication is disfavored).

United States v. Othuru, 65 M.J. 375 (although some constitutional errors may be so fundamental as to be prejudicial in any event, not all constitutional errors require per se reversal; in the context of a particular case, certain constitutional errors, no less than other errors, may have been harmless in terms of their effect on the factfinding process at trial; the denial of the opportunity to cross-examine an adverse witness does not fit within the limited category of constitutional errors that are deemed prejudicial in every case; as the error in this case involves appellant’s Sixth Amendment right to cross-examine the witnesses, an appellate court may test this Confrontation Clause error for its effect upon the trial to determine whether the error was harmless beyond a reasonable doubt).

(the government bears the burden of establishing that a constitutional error had no causal effect upon the findings; to meet this burden in this case, the government had to demonstrate that there was no reasonable possibility that the erroneous presence of two testimonial statements contributed to the contested findings of guilty; to say that an error did not contribute to the ensuing verdict is not, of course, to say that the factfinder was totally unaware of that feature of the trial later held to have been erroneous; to say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the factfinder considered on the issue in question, as revealed in the record).

(an appellate court will not affirm an accused’s conviction where a constitutional error occurred at trial unless it is convinced beyond a reasonable doubt that the constitutional error was not a factor in obtaining that conviction).

(the determination of whether an error of constitutional dimension is harmless beyond a reasonable doubt is a question of law that an appellate court reviews de novo).

(to determine whether a constitutional error involving the erroneous admission of two testimonial hearsay statements was harmless beyond a reasonable doubt, an appellate court considers the whole record; in reviewing the record, an appellate court applies a balancing test that considers a host of factors; these factors include the importance of the witnesses’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witnesses on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case).

(an appellate court reviews de novo whether appellant was denied due process due to post-trial and appellate delay; the methodology for reviewing such issues requires an appellate court to ask first whether the particular delay is facially unreasonable; if it concludes that the delay is facially unreasonable, then it examines the four factors set forth in Barker v. Wingo, 407 US 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice).

United States v. Custis, 65 M.J. 366 (where the error in admitting privileged marital communications was not constitutional in nature, an appellate court, in testing for nonconstitutional harmless error, conducts a de novo review to determine whether this error had a substantial influence on the members’ verdict in the context of the entire case).

United States v. Brown, 65 M.J. 356 (whether a military judge properly instructed court members is a question of law, which an appellate court reviews de novo).

United States v. Parrish, 65 M.J. 361 (whether the court of criminal appeals correctly resolved appellant’s post-trial claim without a factfinding hearing is a legal issue that CAAF reviews de novo). 

United States v. Cabrera-Frattini, 65 M.J. 241 (a military judge’s determination of a witness’s unavailability and the antecedent question of the government’s good-faith efforts are reviewed for abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo; so long as the military judge understood and applied the correct law, and the factual findings are not clearly erroneous, neither the military judge’s decision to admit evidence, nor his unavailability ruling, should be overturned). 

(in order for a witness to be unavailable for Sixth Amendment purposes, the government must first make a good faith effort to secure the witness’s presence at trial; the lengths to which the prosecution must go to produce a witness is determined under a reasonableness standard; evaluation of reasonableness or good-faith effort requires an appellate court to consider all the circumstances rather than to apply a per se rule; the test for unavailability focuses on whether the witness is not present in court in spite of good-faith efforts by the government to locate and present the witness). 

(when reviewing a decision of a CCA on a military judge’s ruling, CAAF typically pierces through that intermediate level and examines the military judge’s ruling and then decides whether the CCA was right or wrong in its examination of the military judge’s ruling). 

United States v. Brown, 65 M.J. 227 (the critical inquiry of an appellate court on review of the legal sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the members were properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt; but this inquiry does not require a court to ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt; instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(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). 

(where neither party appeals a ruling of the court below, that ruling will normally be regarded as law of the case and binding upon the parties; where there is no appeal, a superior court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it). 

(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). 

United States v. Erickson, 65 M.J. 221 (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).

United States v. Leedy, 65 M.J. 208 (the denial of a motion to suppress is a decision reviewed by an appellate court for an abuse of discretion).

(an appellate court reviews de novo the legal question of the sufficiency of the evidence to support a magistrate’s finding of probable cause, using a totality of the circumstances test). 

(the determination of the legal question of the sufficiency of the evidence to support a magistrate’s finding of probable cause is based in large part on the facts found by the military judge, the review of which an appellate court conducts under a clearly erroneous standard; findings of fact will not be overturned unless they are clearly erroneous or unsupported by the record). 

(the clearly erroneous standard is a very high one to meet; appellant does not meet the burden by suggesting that the findings are maybe or probably wrong; if there is some evidence supporting the military judge’s findings, an appellate court will not hold them arbitrary, fanciful, or clearly erroneous).

(in reviewing a ruling on a motion to suppress, an appellate court considers the evidence in the light most favorable to the prevailing party). 

(the duty of the reviewing court, in its de novo review of the sufficiency of the evidence to support a magistrate’s finding of probable cause, is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place). 

(there are no specific tests that must be satisfied to find that a magistrate’s decision to authorize a search had a substantial basis for probable cause; the review of a magistrate’s determination is bifurcated into two closely intertwined analyses:  first, an appellate court examines the facts known to the magistrate at the time of his decision, and second, it analyzes the manner in which the facts became known to the magistrate; thus, while an appellate court’s initial inquiry rightly centers on the evidence as set out in the four corners of the requesting affidavit, this evidence may then be usefully illuminated by factors such as the veracity, reliability, and basis of knowledge of the individual presenting the evidence; the magistrate then relies on these and other factors in determining the commonsense, practical question whether there was probable cause to believe that contraband is located in a particular place). 

United States v. Harrow, 65 M.J. 190 (a decision to admit or exclude evidence is reviewed for an abuse of discretion).

(in applying nonconstitutional harmless error analysis, an appellate court conducts a de novo review to determine whether the error had a substantial influence on the members’ verdict in the context of the entire case). 

(the correct test for the admissibility of uncharged misconduct under MRE 404(b) is:  first, does the evidence reasonably support a finding by the court members that appellant committed prior crimes, wrongs or acts; second, what fact of consequence is made more or less probable by the existence of this evidence; and last, is the probative value substantially outweighed by the danger of unfair prejudice). 

(an appellate court rejects a guilty plea only where the record shows a substantial basis in law and fact for questioning a plea). 

(an appellate court reviews a military judge’s decision to accept a guilty plea for an abuse of discretion). 

(CAAF reviews a sentence reassessment by a CCA for obvious miscarriages of justice or abuses of discretion). 

United States v. Moran, 65 M.J. 178 (whether there has been improper reference to an accused’s invocation of his constitutional rights is a question of law that an appellate court reviews de novo).

(whether there was plain error is a determination reviewed by an appellate court de novo.). 

(appellant has the burden of persuading an appellate court that the three elements of the plain error test are satisfied). 

(statements made by witnesses concerning the invocation of an accused’s rights must be reviewed closely; this is especially so when such comments are reiterated by trial counsel and when the trial is before members rather than a military judge alone). 

(an appellate court examines prosecutorial comment within the context of the entire court-martial). 

United States v. Albaaj, 65 M.J. 167 (in the case of actual bias, an appellate court is generally deferential to a military judge’s ruling because such challenges involve judgments regarding credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility during voir dire). 

(the test for implied bias is objective, and asks whether, in the eyes of the public, the challenged member’s circumstances do injury to the perception of appearance of fairness in the military justice system; in making this objective evaluation, an appellate court asks whether most members in the same position as the challenged member would be prejudiced or biased; because of this objective test and the nature of the inquiries, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo). 

(in order to prove ineffective assistance of counsel, appellant must show that his trial counsel’s performance was deficient and that the deficiency deprived him of a fair trial; with regard to allegations of ineffective assistance of counsel, the burden rests on the accused to demonstrate a constitutional violation; consistent with this principle, when a claim of ineffective assistance of counsel is premised on counsel’s failure to make a motion to suppress evidence, an appellant must show that there is a reasonable probability that such a motion would have been meritorious; in determining whether appellant has a reasonable probability of success on the motion to suppress the results of appellant’s consent to a blood draw, an appellate court considers the totality of the circumstances surrounding the consent). 

United States v. Sanchez, 65 M.J. 145 (an appellate court reviews a military judge’s decision to admit or exclude expert testimony over defense objection for an abuse of discretion).

(when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors; furthermore, the abuse of discretion standard of review recognizes that a judge has a range of choices and will not be reversed so long as the decision remains within that range; as long as a military judge properly follows the appropriate legal framework, a reviewing court will not overturn a ruling for an abuse of discretion unless it was manifestly erroneous; this standard applies as much to the trial court’s decisions about how to determine reliability as to its ultimate conclusion). 

(a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion). 

(an appellate court reviews de novo the military judge’s exposition of the elements of the offense to which the accused is pleading guilty). 

(appellate courts have long adhered to the principle that criminal statutes are to be strictly construed, and any ambiguity resolved in favor of the accused; where the legislative intent is ambiguous, the ambiguity is resolved in favor of the accused). 

United States v. Pflueger, 65 M.J. 127 (whether the action taken by the CCA in the course of conducting its sentence appropriateness review under Article 66(c), UCMJ, provided meaningful relief for unreasonable or unexplained post-trial delay is a question of law that CAAF considers under a de novo standard of review).

United States v. Foerster, 65 M.J. 120 (whether a document constitutes testimonial hearsay is a legal question that an appellate court reviews de novo).

(an appellate court accepts a military judge’s findings of fact unless they are clearly erroneous or unsupported by the record). 

(a military judge’s evidentiary ruling that a forgery affidavit was admissible as a business record under MRE 803(6) is reviewed by an appellate court for an abuse of discretion). 

(if the military judge erroneously submits the issue of legality of an order to the members, an appellate court considers on appeal whether a record has been established that permits it to resolve the question of legality without further proceedings). 

(the standard for determining the legal sufficiency of evidence supporting a guilty verdict is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

(an appellate court reviews de novo appellant’s claim that he was denied his due process right to a speedy post-trial review and appeal). 

(with respect to the overall post-trial and appellate period, an appellate court reviews a claim of a due process violation under the test set forth in United States v. Moreno, 63 MJ 129, 135 (CAAF 2006). 

United States v. Lewis, 65 M.J. 85 (if an instruction is mandatory, an appellate court will review allegations of error under a de novo standard of review).

(when the instructional error raises constitutional implications, the error is tested for prejudice using a harmless beyond a reasonable doubt standard; the inquiry for determining whether constitutional error is harmless beyond a reasonable doubt is whether, beyond a reasonable doubt, the error did not contribute to the accused’s conviction or sentence). 

(an appellate court uses well-established principles of statutory construction to construe provisions in the MCM; statutory construction begins with a look at the plain language of a rule; the plain language will control, unless use of the plain language would lead to an absurd result). 

United States v. Tippit, 65 M.J. 69 (an appellate court reviews claims of ineffective assistance of counsel de novo; an appellant who alleges ineffective assistance of counsel must surmount a very high hurdle; a reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance). 

(to overcome the presumption of counsel’s competence, appellant must demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable). 

(in a guilty plea case, to satisfy the prejudice prong of the ineffective assistance of counsel test, the defense must show specifically that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

(when challenging the performance of counsel, the defense bears the burden of establishing the truth of the factual allegations that would provide the basis for finding deficient performance; when there is a factual dispute, an appellate court determines whether further factfinding is required; if, however, the facts alleged by the defense would not result in relief under the high standard of the ineffective assistance of counsel test, an appellate court may address the claim without the necessity of resolving the factual dispute). 

(an appellate court need not determine whether any of the alleged errors in counsel’s performance established constitutional deficiencies under the serious deficiency prong of the ineffective assistance of counsel test, if any such errors would not have been prejudicial under the high hurdle established by the second prong of the test). 

(the decision to accept a guilty plea is reviewed for an abuse of discretion; an appellant who challenges the providency of a guilty plea must demonstrate a substantial basis in law and fact for questioning the guilty plea).    

United States v. Gardinier, 65 M.J. 60 (whether the statements of a witness who did not appear at trial are inadmissible testimonial hearsay under Crawford v. Washington, 541 US 36 (2004), is a question of law that an appellate court reviews de novo). 

United States v. Schroder, 65 M.J. 49 (the question of whether a jury was properly instructed is a question of law that is reviewed de novo).

(an appellate court applies an abuse of discretion standard to a military judge’s decision on whether to give a tailored instruction requested by the defense). 

(where there are constitutional dimensions at play, appellant’s claims must be tested for prejudice under the standard of harmless beyond a reasonable doubt).

(where defense counsel did not object to argument of trial counsel, an appellate court reviews the argument for plain error). 

(improper argument does not require reversal unless the trial counsel’s comments, taken as a whole, were so damaging that an appellate court cannot be confident that the members convicted the appellant on the basis of the evidence alone). 

United States v. Roberson, 65 M.J. 43 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard).

(an appellate court reviews the prejudicial effect of an erroneous evidentiary ruling de novo). 

(an appellate court evaluates prejudice from an erroneous evidentiary ruling by weighing (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question; using this evaluation, an appellate court will reverse a case only if it determines that the finder of fact would have been influenced by the evidence that was erroneously omitted).    

United States v. Carr, 65 M.J. 39 (an appellate court will set aside an appellant’s guilty plea only when the record of trial shows a substantial basis in law and fact for questioning the plea; in reviewing the providence of appellant’s guilty pleas, an appellate court considers his colloquy with the military judge, as well any inferences that may reasonably be drawn from it). 

United States v. Bare, 65 M.J. 35 (in applying MRE 403 to evidence otherwise admissible under MRE 414, an appellate court applies an approach balancing numerous factors, to include the following nonexhaustive list of factors:  strength of proof of prior act -- conviction versus gossip; probative weight of evidence; potential for less prejudicial evidence; distraction of factfinder; time needed for proof of prior conduct; temporal proximity; frequency of the acts; presence or lack of intervening circumstances; and relationship between the parties; no one factor is controlling, although in a given case it could be). 

United States v. Rader, 65 M.J. 30 (an appellate court reviews the denial of a motion to suppress for an abuse of discretion; findings of fact are affirmed unless they are clearly erroneous; conclusions of law are reviewed de novo). 

(the control a third party exercises over property or effects is a question of fact; an appellate court will not disturb the military judge’s findings of fact unless they are clearly erroneous or unsupported by the record; whether these facts rise to the level of joint access or control for most purposes is a question of law that an appellate court reviews de novo).

(an appellate court reviews de novo the legal question of whether the established facts and the violation of an Air Force regulation with respect to the conditions of appellant’s pretrial confinement entitle appellant to additional sentencing credit). 

(when a violation of Article 13, UCMJ, is alleged, an appellate court scrutinizes the government’s purpose or intent to punish, determined by examining the intent of detention officials or by examining the purposes served by the restriction or condition, and whether such purposes are reasonably related to a legitimate governmental objective). 

(an appellate court reviews a military judge’s decision in response to an accused’s request for additional confinement credit for abuses of discretion by pretrial confinement authorities under an abuse of discretion standard). 

United States v. Paxton, 64 M.J. 484 (under the two-pronged test of Strickland v. Washington, 466 US 668 (1984), for appellant to establish ineffective assistance of counsel, he first must show that counsel’s performance fell below an objective standard of reasonableness -- that counsel was not functioning as counsel within the meaning of the Sixth Amendment; second, he must demonstrate that there is a reasonable probability that, but for counsel’s error, there would have been a different result).

(ineffective assistance of counsel involves a mixed question of law and fact; an appellate court reviews factual findings under a clearly erroneous standard, but it applies a de novo standard of review to the ultimate determination of whether appellant received ineffective assistance of counsel and whether there was prejudice). 

(an appellate court’s review of counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service). 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel). 

(an appellate court reviews claims of multiplicity de novo). 

United States v. Wise, 64 M.J. 468 (a prisoner must seek administrative relief prior to invoking judicial intervention to redress concerns regarding post-trial confinement conditions; absent some unusual or egregious circumstance, this means that the prisoner has exhausted the prisoner grievance system in his detention facility and that he has petitioned for relief under Article 138, UCMJ; this requirement promotes resolution of grievances at the lowest possible level and ensures that an adequate record has been developed to aid appellate review). 

(an appellate court reviews factual findings under a clearly erroneous standard, but the ultimate determination of whether an appellant has exhausted administrative remedies is reviewed de novo, as a mixed question of law and fact). 

(an appellate court reviews de novo the question of whether an appellant has been subject to impermissible conditions of post-trial confinement in violation of Article 55, UCMJ, and/or the Eighth Amendment). 

(interpreting Article 12, UCMJ, is an issue of statutory interpretation, which an appellate court reviews de novo, as is the question whether Article 12, UCMJ, has been violated). 

(once an appellant makes a colorable claim that he was put in irons, the burden for establishing that an exception to the prohibitions of Article 55, UCMJ, were met falls to the government). 

United States v. Shaw, 64 M.J. 460 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion).

(pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea). 

(once the military judge has accepted a guilty plea as provident and has entered findings based on it, an appellate court will not reverse that finding and reject the plea unless it finds a substantial conflict between the plea and the accused’s statements or other evidence of record; a mere possibility of such a conflict is not a sufficient basis to overturn the trial results).

United States v. Beatty, 64 M.J. 456 (both legal and factual sufficiency are matters for courts of criminal appeals to consider de novo).

United States v. Flores, 64 M.J. 451 (an appellate court reviews a military judge’s denial of a motion to suppress for abuse of discretion; findings of fact are reviewed for clear error, while conclusions of law are reviewed de novo; the court views the evidence in the light most favorable to the prevailing party).

(the military judge’s finding that appellant voluntarily abandoned his bag by switching bags with another recruit before a search was ordered was not clearly erroneous when the evidence was viewed in the light most favorable to the government; because the military judge properly determined that appellant abandoned his bag voluntarily and not in response to the allegedly illegal police conduct, appellant did not carry his burden at the motion hearing or on appeal of demonstrating that he had a reasonable expectation of privacy in the bag; accordingly, appellant lacked standing to challenge the validity of the search or the admission of derivative evidence, including his confession). 

United States v. Davis, 64 M.J. 445 (Article 59(a), UCMJ, establishes an appellate standard for review of the findings and sentence, not a trial-level standard for ruling on motions; this standard is that 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; like its federal civilian counterpart, Fed. R. Crim. P. 52(a), Article 59(a) recognizes that errors are likely to occur in the dynamic atmosphere of a trial, and that prejudice must be shown before reversing the findings or sentence). 

(as a general matter, if an appellant demonstrates that a ruling by the military judge was in error, the burden then shifts to the government to demonstrate that the error was harmless; if the error is of constitutional dimension or involves unlawful command influence, the government must show that the error was harmless beyond a reasonable doubt; an error is treated as inherently prejudicial, without the need for a further showing of prejudice, only if it amounts to a structural defect in the constitution of the trial). 

(on appeal, an appellate court evaluates an error in an Article 32 proceeding under Article 59(a); the standard of review and allocation of burdens in such cases depends on whether the defect amounts to a structural constitutional error or other constitutional error, unlawful command influence, or other nonconstitutional error; to the extent that prior case law reflected inconsistent treatment of Article 59(a) in the context of Article 32 errors, Article 59(a) now applies to all Article 32 errors considered on direct review of the findings and sentence of a court-martial). 

(although the Article 32 investigation is an important element of the military justice process, it is not part of the court-martial; an Article 32 investigation takes place before the convening authority’s decision to refer a case for trial by general court-martial; a case may be referred to trial by special court-martial without conducting an Article 32 investigation, even though a special court-martial can result in the stigma of a punitive discharge and confinement for up to one year; in light of those considerations, the Article 32 investigation is not so integral to a fair trial that an error in the proceeding necessarily falls within the narrow class of defects treated by the Supreme Court as structural error subject to reversal without testing for prejudice). 

United States v. Phillips, 64 M.J. 410 (whether a convening authority’s action approving a sentence under Article 60(c), UCMJ, precludes a different officer from converting a contingent confinement provision of that sentence into actual confinement when appellant fails to pay the fine is question of law that an appellate court reviews de novo). 

(an appellate court reviews a decision to convert a fine into confinement for an abuse of discretion). 

(in reviewing a case for legal sufficiency, an appellate court is bound to draw every reasonable inference from the evidence of record in favor of the prosecution). 

(an appellate court reviews a question of legal sufficiency de novo as a question of law). 

(issues of due process and whether constitutional error is harmless beyond a reasonable doubt are reviewed by an appellate court de novo).

United States v. Gutierrez, 64 M.J. 374 (there are no magic words to establish affirmative waiver of a defense; in making waiver determinations, an appellate court looks to the record to see if the statements signify that there was a “purposeful decision” at play). 

(whether an affirmative defense has been affirmatively waived is an instructional claim that an appellate court reviews de novo). 

United States v. Rankin, 64 M.J. 348 (the question of whether documents offered at trial as records of regularly conducted activity under MRE 803(6) and as public records under MRE 803(8) were inadmissible hearsay is a question of law that an appellate court reviews de novo). 

United States v. Carruthers, 64 M.J. 340 (a military judge’s decision to limit cross-examination as to the sentencing details of a prosecution witness’s plea agreement is reviewed for abuse of discretion; however, a military judge’s discretionary authority arises only after there has been permitted as a matter of right sufficient cross-examination). 

(the military judge’s denial of a requested instruction is reviewed for abuse of discretion). 

(an appellate court applies a three-pronged test to determine whether the failure to give a requested instruction is error: (1) the requested instruction is correct; (2) it is not substantially covered in the main instruction; and (3) it is on such a vital point in the case that the failure to give it deprived the accused of a defense or seriously impaired its effective presentation). 

United States v. Foster, 64 M.J. 331 (there is a strong presumption that a military judge is impartial in the conduct of judicial proceedings). 

(when a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of the trial, the court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions; this test is applied from the viewpoint of the reasonable person observing the proceedings). 

(failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial). 

United States v. Brooks, 64 M.J. 325 (an appellate court reviews a military judge’s decision to admit expert testimony under an abuse of discretion standard).    

(an appellate court’s standard of review for determining whether there is plain error is de novo). 

United States v. Terry, 64 M.J. 295 (where military judges consider implied bias and apply the liberal grant mandate on the record, deference is warranted). 

(the existence of actual bias is a question of fact, and an appellate court consequently provides the military judge with significant latitude in determining whether it is present in a prospective member; that the military judge, rather than the reviewing court, has been physically present during voir dire and watched the challenged member’s demeanor makes the military judge specially situated in making this determination). 

(in analyzing implied bias, appellate courts provide less deference to the military judge; here, the military judge’s privileged position at trial is less important because the test for implied bias is objective, and asks whether, in the eyes of the public, the challenged member’s circumstances do injury to the perception of appearance of fairness in the military justice system; in considering this question, courts also consider whether most people in the same position would be prejudiced, that is, biased; consequently, issues of implied bias are reviewed under a standard less deferential than abuse of discretion but more deferential than de novo). 

United States v. Green, 64 M.J. 289 (if a military judge erroneously permits consideration of inadmissible evidence during sentencing, an appellate court tests the error for prejudice). 

(if a military judge comments on the sentence, his remarks may be reviewed on appeal to determine whether he relied on inadmissible matter in determining the sentence). 

(an appellate court reviews a military judge’s consideration of sentencing factors under an abuse of discretion standard). 

(a claim of judicial bias in sentencing is evaluated by an appellate court by considering, in view of the sentencing proceeding as a whole, whether a reasonable person would doubt the court-martial’s legality, fairness, and impartiality). 

United States v. Briggs, 64 M.J. 285 (because a challenge based on actual bias is essentially one of credibility, and because the military judge has an opportunity to observe the demeanor of court members and assess their credibility on voir dire, a military judge’s ruling on actual bias is afforded deference). 

(since implied bias is an objective standard, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias; however, deference is warranted only when the military judge indicates on the record an accurate understanding of the law and its application to the relevant facts). 

United States v. Hardison, 64 M.J. 279 (in the absence of a defense objection, an appellate court reviews a claim of erroneous admission of evidence for plain error). 

(appellant has the burden of persuading the court that the three prongs of the plain error test are satisfied). 

(implied bias is an objective test, viewed through the eyes of the public, focusing on the appearance of fairness; accordingly, a military judge’s ruling on implied bias, while not reviewed de novo, is afforded less deference than a ruling on actual bias).

(military judges must follow the liberal grant mandate in ruling on challenges for cause asserted by an accused; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate). 

(a military judge who addresses implied bias by applying the liberal grant mandate on the record will receive more deference on review than one that does not; an appellate court does not expect record dissertations but, rather, a clear signal that the military judge applied the right law; while not required, where the military judge places on the record his analysis and application of the law to the facts, deference is surely warranted). 

(in the absence of actual bias, where a military judge considers a challenge based on implied bias, recognizes his duty to liberally grant defense challenges, and places his reasoning on the record, instances in which the military judge’s exercise of discretion will be reversed will indeed be rare; in such circumstances, what might appear a close case on a cold appellate record, might not appear so close when presented from the vantage point of a military judge observing members in person and asking the critical questions that might fill any implied bias gaps left by counsel). 

United States v. Pena, 64 M.J. 259 (an appellate court reviews allegations of cruel or unusual punishment under a de novo standard). 

(in an appellate court’s evaluation of both constitutional and statutory allegations of cruel or unusual punishment, it applies the Supreme Court’s Eighth Amendment jurisprudence in the absence of legislative intent to create greater protections in the UCMJ).

(an appellate court reviews de novo claims that punishment was increased without providing the requisite constitutional, statutory, and regulatory components of notice and an opportunity to respond). 

(although reviewing authorities have the power to commute a sentence to a different form of punishment, this authority may not be exercised in a manner that increases the severity of the punishment; the question of whether a change in the form of punishment increases the severity of the punishment is contextual, requiring consideration of all the circumstances in a particular case). 

(the burden is on the party challenging the conditions of mandatory supervised release program to demonstrate that there has been an increase above the punishment of confinement imposed at trial).

(when an appellant asks an appellate court to review the post-trial administration of a sentence, that court is typically confronted by issues in which the pertinent facts are not in the record of trial; in such a case, it is particularly important that the appellant provide the court with a clear record of the facts and circumstances relevant to the claim of legal error; the information about the personal, psychological, economic, and family impact of such measures is primarily in the control of the party appealing the sentence, and that party bears the responsibility of submitting detailed documentation). 

(an appellate court reviews claims as to the providence of a plea under a de novo standard). 

(an appellant who challenges the providence of a guilty plea must demonstrate a substantial basis in law and fact for questioning the guilty plea). 

(when the challenge to the providence of a guilty plea concerns an appellant’s claimed misunderstanding of the collateral consequences of a court-martial, such as an early release program, appellant must demonstrate that the collateral consequences are major and appellant’s misunderstanding of the consequences (1) results foreseeably and almost inexorably from the language of a pretrial agreement; (2) is induced by the trial judge’s comments during the providence inquiry; or (3) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding; in short, chief reliance must be placed on defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences). 

United States v. Cossio, 64 M.J. 254 (an appellate court reviews de novo the question of whether an accused was denied his right to a speedy trial under Article 10, UCMJ, as a matter of law; and in an Article 62, UCMJ, appeal, that court is bound by the facts as found by the military judge unless those facts are clearly erroneous). 

(in reviewing claims of a denial of a speedy trial under Article 10, UCMJ, an appellate court does not demand constant motion, but reasonable diligence in bringing the charges to trial; it inquires whether the government moved toward trial with reasonable diligence; brief inactivity is not fatal to an otherwise active, diligent prosecution). 

(although Article 10, UCMJ, creates a more stringent speedy trial standard than the Sixth Amendment, the factors from Barker v. Wingo, 407 U.S. 514 (1972), are an apt structure for examining the facts and circumstances surrounding an alleged Article 10 violation; those factors are:  (1) the length of the delay; (2) the reasons for the delay; (3) whether the appellant made a demand for a speedy trial; and (4) prejudice to the appellant). 

United States v. McAllister, 64 M.J. 248 (if the military judge’s error was not of constitutional dimension, the appropriate standard is whether the court-martial’s findings of guilty were substantially influenced by the error). 

(a four-part test is employed to evaluate prejudice under the standard of review appropriate to a non-constitutional evidentiary error:  (1) the strength of the government’s case, (2) the strength of the defense case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).

(if the military judge commits constitutional error by depriving an accused of his right to present a defense, the test for prejudice on appellate review is whether the appellate court is able to declare a belief that it was harmless beyond a reasonable doubt; the government must demonstrate that there was no reasonable possibility that the absence of potentially exculpatory evidence contributed to the contested findings of guilty). 

(an appellate court reviews de novo the question of whether a constitutional error was harmless beyond a reasonable doubt). 

United States v. Canchola, 64 M.J. 245 (a claim of denial of a due process right to speedy post-trial review is evaluated under the four factors of Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of his right to timely post-trial review and appeal; and (4) prejudice). 

(the high demands placed upon military personnel in supporting the national interests of the United States, particularly in combat or hostile environments, is an appropriate consideration when assessing the post-trial delay factors under the Barker analysis; where operational requirements affect post-trial processing delays, staff judge advocates and convening authorities should ensure that those reasons are documented in the record of trial; reviewing courts can then weigh and balance those reasons in determining whether they provide adequate explanation for any apparent post-trial delays; however, a general reliance on budgetary and manpower constraints will not constitute reasonable grounds for delay nor cause this factor to weigh in favor of the government). 

(in balancing the Barker factors, in cases where an appellate court finds no prejudice under the fourth prong, a due process violation will result only when, in balancing the other three factors, the delay is so egregious that tolerating it would adversely affect the public’s perception of the fairness and integrity of the military justice system).

United States v. Perez, 64 M.J. 239 (an accused who claims ineffective assistance of counsel must surmount a very high hurdle; judicial scrutiny of a defense counsel’s performance must be highly deferential and should not be colored by the distorting effects of hindsight). 

(to overcome the presumption of his defense counsel’s competence, an appellant must satisfy the two-part test set forth in Strickland v. Washington and demonstrate:  (1) a deficiency in counsel’s performance that is so serious that counsel was not functioning as the counsel guaranteed an accused by the Sixth Amendment; and (2) that the deficient performance prejudiced the defense through errors so serious as to deprive the accused of a fair trial, a trial whose result is reliable). 

(as a general matter, an appellate court will not second-guess the strategic or tactical decisions made at trial by defense counsel). 

(an appellate court must indulge a strong presumption that a defense counsel’s conduct falls within the wide range of reasonable professional assistance; that is, an accused must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy; there are countless ways to provide effective assistance in any given case; even the best criminal defense attorneys would not defend a particular client in the same way).

(in cases involving attacks on defense counsel’s trial tactics, an appellant must show specific defects in counsel’s performance that were unreasonable under prevailing professional norms; an appellant must also show prejudice). 

(the test for prejudice on a claim of ineffective assistance of counsel is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different). 

(an appellate court considers whether a defense counsel was ineffective and whether any errors were prejudicial under a de novo standard of review). 

United States v. Lee, 64 M.J. 213 (an appellate court reviews a military judge’s ruling on a request for expert assistance for abuse of discretion). 

(to test the adequacy of a showing of necessity for expert assistance, an appellate court applies a three-part test: the defense must show: (1) why the expert assistance is needed; (2) what the expert assistance would accomplish for the accused; and (3) why the defense counsel were unable to gather and present the evidence that the expert assistance would be able to develop). 

United States v. Crafter, 64 M.J. 209 (failure to object does not waive the issue of a specification’s legal sufficiency; if, however, a specification has not been challenged prior to findings and sentence, the sufficiency of the specification may be sustained if the necessary facts appear in any form or by fair construction can be found within the terms of the specification). 

(the question of whether a specification states an offense is a question of law that an appellate court reviews de novo). 

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). 

(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). 

(to prevail on a fatal-variance claim, appellant must show that the variance was material and that it substantially prejudiced him). 

(a variance that is material is one that, for instance, substantially changes the nature of the offense, increases the seriousness of the offense, or increases the punishment of the offense).  

(with respect to the two-part material variance test, the critical question is one of prejudice; the prejudice prong consists of a two-part analysis: (1) has the accused been misled to the extent that he has been unable adequately to prepare for trial; and (2) is the accused fully protected against another prosecution for the same offense). 

(an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo; if there has been a denial of due process, appellant is entitled to relief unless the court is convinced that the error was harmless beyond a reasonable doubt; where an appellate court can determine that any violation of the due process right to speedy post-trial review and appeal is harmless beyond a reasonable doubt, it need not undertake the four-factor Barker analysis prior to disposing of that post-trial or appellate delay issue). 

United States v. Haney, 64 M.J. 101 (there is a three-pronged test to determine whether counsel has been ineffective: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case, (2) if the allegations are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers, and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt).    

(with respect to appellant’s claim that his appellate defense counsel failed to perform the specific duty of filing pleadings in a timely manner, appellant must show that there is a reasonable probability that he was prejudiced by the alleged deficiency). 

(there are four factors used to determine whether post-trial delay violates due process rights: (1) length of the delay, (2) reasons for the delay, (3) appellant’s assertion of his right to a timely appeal, and (4) prejudice to appellant; once this due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

(in order to prevail on the prejudice prong of an ineffective assistance of counsel claim, appellant must ultimately show that the deficient performance prejudiced the defense).   

United States v. Gosser, 64 M.J. 93 (the test for excessive post-trial delay looks at four Barker v. Wingo factors: (1) the length of the delay, (2) the reasons for the delay, (3) appellant’s assertion of the right to timely review and appeal, and (4) prejudice; a full due process analysis is triggered where the length of delay is facially unreasonable). 

(where a due process error is one of constitutional magnitude, an appellate court is obliged to test this error for harmlessness; to rebut a showing of error, the government must show that the error was harmless beyond a reasonable doubt).

United States v. Long, 64 M.J. 57 (in examining Fourth Amendment privacy interests, the courts look first to whether the individual had a subjective expectation of privacy; if the courts ascertain that a subjective expectation of privacy exists, they then determine if that expectation is one that society is prepared to accept as reasonable; the first question is one of fact, which is reviewed using a clearly erroneous standard; the second is one of law, which is reviewed de novo). 

(whether error is harmless beyond a reasonable doubt is a question of law reviewed de novo).    

(in determining whether error is harmless beyond a reasonable doubt, the burden is on the government to show whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained). 

United States v. Kisala, 64 M.J. 50 (there is a presumption that orders are lawful; under this presumption, the servicemember challenging the order bears the burden of demonstrating the illegality).

United States v. Shelton, 64 M.J. 32 (in evaluating whether appellant has established the three criteria necessary to claim the clergy privilege, the focus of an appellate court is the ruling of the military judge; when CAAF reviews a decision of a court of criminal appeals on a military judge’s ruling on the clergy privilege, it typically pierces through that intermediate level, examines the military judge’s ruling, and then decides whether the court of criminal appeals was right or wrong in its examination of the military judge’s ruling). 

(an appellate court reviews a military judge’s decision to admit evidence for an abuse of discretion). 

United States v. Harvey, 64 M.J. 13 (on appeal, an appellant must (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that the unlawful command influence was the cause of the unfairness). 

(an appellate court reviews de novo the issue whether the defense produced some evidence of facts which, if true, constitute unlawful command influence and that the alleged unlawful command influence has a logical connection to the court-martial in terms of its potential to cause unfairness in the proceedings).

United States v. Dearing, 63 M.J. 478 (the touchstone against which an appellate court measures the validity of the military judge’s refusal to give an instruction on self-defense is whether there is in the record some evidence from which a reasonable inference can be drawn that the affirmative defense was in issue).

(an appellate court reviews the adequacy of the military judge’s instruction de novo). 

(the legal test for determining whether appellant’s due process right was violated by excessive post-trial delay considers four factors:  (1) length of the delay; (2) reasons for the delay; (3) appellant’s assertion of his right to a timely appeal; and (4) prejudice to appellant; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation). 

(the standard of review for a claim of denial of a due process right arising from denial of speedy post-trial review and appeal is de novo).

United States v. Miller, 63 M.J. 452 (the test for ineffective assistance of appellate defense counsel is the same as the test for ineffective assistance of trial defense counsel; first, the accused must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the accused by the Sixth Amendment; second, the accused must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial).

(CAAF employs a three-pronged test to determine whether counsel has been ineffective: (1) are the allegations made by appellant true; and, if they are, is there a reasonable explanation for counsel’s actions in the defense of the case; (2) if the allegations are true, did the level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers; and (3) if ineffective assistance of counsel is found to exist, is there a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt). 

(the rejection of a guilty plea requires that the record of trial show a substantial basis in law and fact for questioning the plea).

(when collateral consequences of a court-martial conviction -- such as administrative discharge, loss of a license or a security clearance, removal from a military program, failure to obtain promotion, deportation, or public derision and humiliation -- are relied upon as the basis for contesting the providence of a guilty plea, the appellant is entitled to succeed only when the collateral consequences are major and the appellant’s misunderstanding of the consequences (a) results foreseeably and almost inexorably from the language of a pretrial agreement; (b) is induced by the trial judge’s comments during the providence inquiry; or (c) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding).

United States v. Tanner, 63 M.J. 445 (the validity of the sentence in the later court-martial may be affected if the prior conviction introduced during sentencing is reversed on appeal; in such an instance, an appellate court tests for prejudice from admission of that prior conviction by determining whether the sentence in the later court-martial might have been different had the conviction not been introduced during sentencing; in the course of evaluating potential prejudice, the court considers whether the same information otherwise would have been admissible at the sentence proceeding and at a sentence rehearing). 

(where the military judge did not conduct a balancing test in the context of MRE 414, an appellate court reviews the evidence without giving any deference to the decision of the military judge). 

United States v. Zachary, 63 M.J. 438 (in analyzing offenses charged under the general article, Article 134, UCMJ, an appellate court looks at both the statute and the President’s explanation in the MCM to determine the elements of the offense). 

(a guilty plea is set aside upon a showing that a substantial basis in law and fact for questioning the guilty plea exists).
 

United States v. Osheskie, 63 M.J. 432 (an appellate court reviews ineffective assistance of counsel claims de novo). 

(the Strickland test governs ineffective assistance of counsel claims in cases involving guilty pleas; appellant must show not only that his counsel was deficient but also that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial). 

(despite an appellant’s submission of an affidavit that is factually adequate on its face on an ineffective assistance of counsel claim, an appellate court can independently resolve the factual and legal issues in the case if the appellate filings and the record as a whole compellingly demonstrate the improbability of the facts). 

(an appellate court reviews claims of post-trial and appellate delay using the four-factor analysis from Barker v. Wingo).

United States v. Jenkins, 63 M.J. 426 (an appellate court reviews a military judge’s decision to admit or exclude evidence for an abuse of discretion).

United States v. Washington, 63 M.J. 418 (when determining whether the evidence was legally sufficient to support a conviction, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt). 

United States v. Lewis, 63 M.J. 405 (under the law of the case doctrine, a higher appellate court will not review the lower court’s ruling unless the lower court’s decision is clearly erroneous and would work a manifest injustice if the parties were bound by it; that standard is difficult to achieve:  a finding of manifest injustice requires a definite and firm conviction that a prior ruling on a material matter is unreasonable or obviously wrong). 

(as a general matter, the defense has the initial burden of raising the issue of unlawful command influence; on appeal, the defense meets its burden by showing facts which, if true, constitute unlawful command influence; that the proceedings were unfair; and that unlawful command influence was the cause of the unfairness). 

(once the issue of unlawful command influence has been raised, the burden shifts to the government to demonstrate beyond a reasonable doubt either that there was no unlawful command influence or that the proceedings were untainted; this burden is high because command influence tends to deprive servicemembers of their constitutional rights). 

(an appellate court reviews de novo the question of whether the government has met its burden of demonstrating, beyond a reasonable doubt, that the proceedings were untainted by unlawful command influence; this review must necessarily consider both whether actual command influence was cleansed from the proceedings as well as whether any perceived unlawful command influence has been eradicated). 

(the government did not meet its burden of demonstrating beyond a reasonable doubt that the court-martial was free from the effects of actual unlawful command influence arising from the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge; although the successor military judge directed that the SJA be disqualified, that the SJA be barred from sitting in the courtroom, and that there be a new convening authority, these actions fell short of removing doubt about the impact of actual command influence where the SJA’s instrument in the courtroom, the trial counsel, remained an active member of the prosecution despite participating fully in the unlawful command influence). 

(review of the command influence in a case is not limited to actual unlawful influence and its effect on a trial; Congress and appellate courts are concerned not only with eliminating actual unlawful command influence, but also with eliminating even the appearance of unlawful command influence at courts-martial; disposition of an issue of unlawful command influence falls short if it fails to take into consideration the appearance of unlawful command influence).

(whether the conduct of the government created an appearance of unlawful command influence is determined objectively; even if there was no actual unlawful command influence, there may be a question whether the influence of command placed an intolerable strain on public perception of the military justice system; the objective test for the appearance of unlawful command influence is similar to the tests appellate courts apply in reviewing questions of implied bias on the part of court members or in reviewing challenges to military judges for an appearance of conflict of interest; an appellate court focuses upon the perception of fairness in the military justice system as viewed through the eyes of a reasonable member of the public; thus, the appearance of unlawful command influence will exist where an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding). 

(the orchestrated efforts of the trial counsel and the staff judge advocate to force the recusal of the military judge gave rise to the appearance of unlawful command influence where a reasonable observer would have significant doubt about the fairness of the court-martial in light of the government’s conduct with respect to the military judge).  

United States v. Leonard, 63 M.J. 398 (the test for actual bias is whether any bias is such that it will not yield to the evidence presented and the judge’s instructions; while actual bias is reviewed through the eyes of the military judge or the court members, implied bias is reviewed under an objective standard, viewed through the eyes of the public; the focus is on the perception or appearance of fairness of the military justice system; the test for implied bias also carries with it an element of actual bias; thus, there is implied bias when most people in the same position would be prejudiced; when there is no actual bias, implied bias should be invoked rarely).

(a military judge’s decision whether to grant a challenge for cause based on actual bias is reviewed for an abuse of discretion; this deferential standard exists because the judge has observed the demeanor of the participants in the voir dire and challenge process).

United States v. Barnett, 63 M.J. 388 (a military judge’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard). 

(a military judge abuses his discretion if his findings of fact are clearly erroneous or his conclusions of law are incorrect). 

(where a military judge is required to do a balancing test under MRE 403 and does not sufficiently articulate his balancing on the record, his evidentiary ruling will receive less deference from an appellate court). 

United States v. Rodriguez-Rivera, 63 M.J. 372 (in analyzing allegations of prosecutorial misconduct, courts should gauge the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness). 

(where the military judge and the lower court have made factual determinations regarding the events surrounding allegations of misconduct, the CAAF will accept those determinations unless they are clearly erroneous). 

(if prosecutorial misconduct is found, an appellate court will examine the record as a whole to determine whether appellant was prejudiced by the misconduct). 

(an appellate court weighs three factors in evaluating the impact of prosecutorial misconduct on a trial: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the weight of the evidence supporting the conviction). 

(as a general matter, appellate courts have permitted greater latitude and flexibility when it comes to treatment and testimony of child witnesses). 

(a military judge’s decision to admit hearsay-exception evidence is reviewed by an appellate court for an abuse of discretion). 

(in evaluating a military judge’s ruling on a challenge for cause, an appellate court finds it appropriate to recognize the military judge’s superior position to evaluate the demeanor of court members; it will not, therefore, reverse a military judge’s ruling on a challenge for cause absent a clear abuse of discretion). 

(where matters adverse to the accused from outside the record have been erroneously considered by the convening authority, an appellate court will require appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; the prejudicial threshold is low, and if appellant makes some colorable showing of possible prejudice, an appellate court will give that appellant the benefit of the doubt and will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment). 

(in determining whether the evidence is legally sufficient, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt). 

(if an appellate court concludes that appellant has been denied the due process right to speedy post-trial review and appeal, it will grant relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

(whether appellant has been denied the due process right to a speedy post-trial review and appeal, and whether constitutional error is harmless beyond a reasonable doubt are reviewed by an appellate court de novo). 

(as a general matter, an appellate court can dispose of an issue by assuming error and proceeding directly to the conclusion that any error was harmless; similarly, issues involving possible constitutional error can be resolved by assuming error and concluding that the error is harmless beyond a reasonable doubt). 

(in cases involving claims that appellant has been denied his due process right to speedy post-trial review and appeal, an appellate court may look initially to whether the denial of due process, if any, is harmless beyond a reasonable doubt; an appellate court will apply a similar analysis where, even though the denial of due process cannot be said to be harmless beyond a reasonable doubt, there is no reasonable, meaningful relief available). 

United States v. Allison, 63 M.J. 365 (a military judge’s decision regarding the qualifications of an expert witness is reviewed by this court for abuse of discretion). 

(in analyzing whether appellate delay has violated the due process rights of an accused, an appellate court first looks at whether the delay in question is facially unreasonable; if it is, then this court examines and balances the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice). 

(if an appellate court concludes that an appellant has been denied the due process right to speedy post-trial review and appeal, it grants relief unless it is convinced beyond a reasonable doubt that the constitutional error is harmless). 

(whether an appellant has been denied the due process right to a speedy post-trial review and appeal, and whether constitutional error is harmless beyond a reasonable doubt are reviewed de novo). 

United States v. Toohey, 63 M.J. 353 (prior to affirming a case in which there has been constitutional error, an appellate court must be convinced beyond a reasonable doubt that the error was harmless). 

(for nonconstitutional errors, the government bears the burden of showing that the error did not have a substantial influence on the findings). 

(an appellate courts reviews the prejudicial effect of an erroneous evidentiary ruling de novo). 

(a four-part test is applied to determine whether an error in excluding testimony had a substantial influence on the findings: (1) was the government’s case against appellant strong and conclusive; (2) is the defense’s theory of the case feeble or implausible; (3) what is the materiality of the proffered testimony; and (4) what is the quality of the proffered defense evidence and is there any substitute for it in the record of trial). 

reversal is not required by the erroneous exclusion of evidence if the court determines that the finder of fact would not have been influenced by the omitted evidence). 

(an appellate court reviews de novo claims that appellant has been denied the due process right to a speedy post-trial review and appeal). 

(where an appellate court finds constitutional error, it grants relief unless it court is convinced beyond a reasonable doubt that the constitutional error is harmless). 

(a due process analysis of speedy post-trial review and appeal cases utilizes four Barker factors:  (1) the length of the delay; (2) the reasons for the delay; (3) appellant’s assertion of the right to timely review and appeal; and (4) prejudice; once a due process analysis is triggered by a facially unreasonable delay, the four factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; each factor is analyzed and a determination is made as to whether that factor favors the government or appellant; an analysis of the factors is then balanced to determine whether there has been a due process violation; no single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding). 

(the government bears the burden of demonstrating that a constitutional error is harmless beyond a reasonable doubt). 

 
United States v. Edmond, 63 M.J. 343 (in a due process analysis of prosecutorial misconduct, an appellate court looks at the fairness of the trial and not the culpability of the prosecutor; even where it finds misconduct on the part of the prosecutor, the court will go on to look at the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness). 

(when reviewing claims of ineffective assistance of counsel, an appellate court is guided by the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984); first, an appellant must show that counsel’s performance fell below an objective standard of reasonableness -- that counsel was not functioning as counsel within the meaning of the Sixth Amendment; the second prong of an appellant’s burden requires a showing of prejudice flowing from counsel’s deficient performance; the appellant must demonstrate such prejudice as to indicate a denial of a fair trial or a trial whose result is unreliable, i.e. that there is a reasonable probability that, but for counsel’s error, there would have been a different result).    

(in evaluating issues of prosecutorial misconduct, an appellate court reviews the military judge’s findings of fact to determine whether they are clearly erroneous; the questions whether the facts found by the military judge constitute prosecutorial misconduct and whether such misconduct was prejudicial error are questions of law that we review de novo). 

(in a prosecutorial misconduct analysis, even if an appellate court were to find misconduct on the part of the prosecutor, this court will go on to look at the overall effect of counsel’s conduct on the trial, and not counsel’s personal blameworthiness; 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). 

(an appellate court’s review of a defense counsel’s performance is highly deferential and is buttressed by a strong presumption that counsel provided adequate professional service; the presumption of competence is rebutted by a showing of specific errors made by defense counsel that were unreasonable under prevailing professional norms). 

(to determine whether an accused’s consent was an independent act of free will, breaking the causal chain between the consent and a prior constitutional violation, three factors are considered:  (1) the temporal proximity of the illegal conduct and the consent; (2) the presence of intervening circumstances; and (3) the purpose and the flagrancy of the initial misconduct).

United States v. Phillippe, 63 M.J. 307 (a military judge’s decision to accept a guilty plea is reviewed for an abuse of discretion; pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea). 

United States v. Lundy, 63 M.J. 299 (interpretation of a pretrial agreement is a question of law, which an appellate court reviews de novo). 

(whether the government has complied with the material terms and conditions of an agreement presents a mixed question of law and fact; generally courts look to all of the facts and circumstances for this determination, and the inquiry is generally considered a question of fact). 

(in the context of pretrial agreements involving the constitutional rights of a military accused, an appellate court looks not only to the terms of the agreement, or contract, but to the accused’s understanding of the terms of an agreement as reflected in the record as a whole; where the relevant facts are undisputed, the materiality determination necessarily reduces to a question of law). 

(an appellant bears the burden of establishing that there is a significant basis in law or fact to overturn a guilty plea; in the context of this case, in this context, appellant bears the burden of establishing that a term or condition of the agreement was material to his decision to plead guilty, that the government failed to comply with that term or condition, and therefore, that his plea was improvident).

United States v. Moss, 63 M.J. 233 (where the Sixth Amendment’s right to confrontation is allegedly violated by a military judge’s evidentiary ruling, the ruling is reviewed for an abuse of discretion; if an abuse of discretion is found, the case will be reversed unless the error is harmless beyond a reasonable doubt). 

(when an appellant claims a violation of the Confrontation Clause on the grounds that he was prohibited from conducting an otherwise appropriate cross-examination designed to show a witness’s bias, the appellant has the burden of showing that a reasonable jury might have reached a significantly different impression of the witness’s credibility if the defense counsel had been able to pursue the proposed line of cross-examination). 

United States v. Thompson, 63 M.J. 228 (an appellate court reviews a military judge’s decision to admit evidence for abuse of discretion and will not overturn that ruling unless it is arbitrary, fanciful, clearly unreasonable, or clearly erroneous, or influenced by an erroneous view of the law).

United States v. Adams, 63 M.J. 223 (when reviewing the providence of a guilty plea, an appellate court will only reject the plea where the record of trial shows a substantial basis in law and fact for questioning the plea).

United States v. Lovett, 63 M.J. 211 (an appellate court determines whether the facts alleged constitute cruel and unusual punishment de novo).  

United States v. Tamez, 63 M.J. 201 (jurisdiction is a legal question that an appellate court reviews de novo). 

(an appellant bears the burden of demonstrating to CAAF good cause for considering a petition out of time; good cause in this context does not lend itself to precise definition; rather good cause represents a discretionary judgment on the part of CAAF that an appellant can establish some reasonable basis justifying his relief from that default; as part of this showing of good cause, counsel should assign some meritorious issue; of course, the showing of good cause for the untimely filing of a petition is distinct from the showing of good cause required to grant a petition for review). 

United States v. Moreno, 63 M.J. 129 (an appellate court reviews rulings on challenges for implied bias under a standard that is less deferential than abuse of discretion, but more deferential than de novo review).

(in reviewing a ruling on a challenge for cause, an appellate court must remain mindful of the liberal grant mandate; the liberal grant mandate recognizes the unique nature of military courts-martial panels, particularly that those bodies are detailed by convening authorities and that the accused has only one peremptory challenge; an appellate court will overturn a military judge’s ruling on an accused’s challenge for cause where he clearly abuses his discretion in applying the liberal grant mandate). 

(implied bias should be invoked sparingly; nevertheless, an appellate court is not reluctant to apply the doctrine to ensure the appearance of fairness in courts-martial). 

(an appellate court reviews de novo claims that an appellant has been denied the due process right to a speedy post-trial review and appeal).  

(in conducting a de novo review of post-trial delay due process claims, an appellate court uses the four factors set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):  (1) the length of the delay; (2) the reasons for the delay; (3) the appellant’s assertion of the right to timely review and appeal; and (4) prejudice).   

(once a post-trial delay due process analysis is triggered by a facially unreasonable delay, the four Barker factors are balanced, with no single factor being required to find that post-trial delay constitutes a due process violation; an appellate court analyzes each factor and makes a determination as to whether that factor favors the government or the appellant; the court then balances its analysis of the factors to determine whether there has been a due process violation; no single factor is required for finding a due process violation and the absence of a given factor will not prevent such a finding). 

(unless a post-trial delay is facially unreasonable, a full due process analysis will not be triggered; an appellate court will conduct a case-by-case analysis to determine if a given delay is facially unreasonable). 

(under the reasons-for-the-delay Barker factor, an appellate court looks at the government’s responsibility for any delay, as well as any legitimate reasons for the delay, including those attributable to an appellant; in assessing the reasons for any particular delay, an appellate court examines each stage of the post-trial period because the reasons for the delay may be different at each stage and different parties are responsible for the timely completion of each segment).

(a more flexible review of post-trial delay occasioned during the period from the submission of final briefs to the decision of the court of criminal appeals is applied where the exercise of the judicial decision-making authority of a court of criminal appeals is involved). 

(the government bears responsibility for unreasonable delay during appeal occasioned by the workload of appellate defense counsel). 

(in the case of appellate delay, prejudice should be assessed by considering three similar interests for prompt appeals:  (1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person’s grounds for appeal, and his defenses in case of reversal and retrial, might be impaired).  

(the oppressive-incarceration-pending-appeal interest for prompt appeals is directly related to the success or failure of an appellant’s substantive appeal; if the substantive grounds for the appeal are not meritorious, an appellant is in no worse position due to the delay, even though it may have been excessive; under these circumstances, an appellant would have served the same period of incarceration regardless of the delay; however, if an appellant’s substantive appeal is meritorious and the appellant has been incarcerated during the appeal period, the incarceration may have been oppressive). 

(the anxiety-and-concern interest in prompt appeals involves constitutionally cognizable anxiety that arises from excessive delay; the appropriate test for the military justice system is to require an appellant to show particularized anxiety or concern that is distinguishable from the normal anxiety experienced by prisoners awaiting an appellate decision; this particularized anxiety or concern is thus related to the timeliness of the appeal, requires an appellant to demonstrate a nexus to the processing of his appellate review, and ultimately assists this court to fashion relief in such a way as to compensate an appellant for the particular harm; the anxiety that an appellant may experience is not dependent upon whether his substantive appeal is ultimately successful; an appellant may suffer constitutionally cognizable anxiety regardless of the outcome of his appeal). 

(the impairment-of-ability-to-present-a-defense-at-a-rehearing interest in prompt appeals is directly related to whether an appellant has been successful on a substantive issue of the appeal and whether a rehearing has been authorized; if an appellant does not have a meritorious appeal, there obviously will be no prejudice arising from a rehearing; if, however, a conviction has been set aside and a rehearing authorized, the appellate delay encountered by the appellant may have a negative impact on his ability to prepare and present his defense at the rehearing; due to the passage of time, witnesses may be unavailable, memories may have faded and records of trial may have been misplaced or lost; in order to prevail on this factor, an appellant must be able to specifically identify how he would be prejudiced at rehearing due to the delay; mere speculation is not enough). 

(for courts-martial completed thirty days after May 11, 2006, CAAF will apply a presumption of unreasonable delay that will serve to trigger the Barker four-factor analysis where the action of the convening authority is not taken within 120 days of the completion of trial; CAAF will apply a similar presumption of unreasonable delay for courts-martial completed thirty days after May 11, 2006, where the record of trial is not docketed by the service court of criminal appeals within thirty days of the convening authority’s action). 

(for those cases arriving at the service courts of criminal appeals thirty days after May 11, 2006, CAAF will apply a presumption of unreasonable delay where appellate review is not completed and a decision is not rendered within eighteen months of docketing the case before the court of criminal appeals). 

(the presumptions of unreasonable delay will be viewed as satisfying the first Barker factor and they will apply whether or not the appellant was sentenced to or serving confinement; it is important to note that the presumptions serve to trigger the four-part Barker analysis -- not resolve it; the government can rebut the presumption by showing the delay was not unreasonable; by using these presumptions, CAAF triggers an appellate analysis and allocates the burden). 

(once the four-factor Barker analysis is completed and those factors balanced, reviewing authorities that find a denial of speedy post-trial or appeal should tailor an appropriate remedy, if any is warranted, to the circumstances of the case; the nature of that relief will depend on the circumstances of the case, the relief requested, and may include, but is not limited to:  (a) day-for-day reduction in confinement or confinement credit; (b) reduction of forfeitures; (c) set aside of portions of an approved sentence including punitive discharges; (d) set aside of the entire sentence, leaving a sentence of no punishment; (e) a limitation upon the sentence that may be approved by a convening authority following a rehearing; and (f) dismissal of the charges and specifications with or without prejudice). 

(those cases tried or received at a court of criminal appeals prior to May 11, 2006, and therefore not encompassed by the foregoing presumptions of unreasonable delay will continue to be reviewed on a case-by-case basis under the Barker due process analysis). 

(dismissal of the charges with prejudice would be an option to address the denial of an appellant’s due process right to speedy review and appeal if the delay either impaired that appellant’s ability to defend against the charges at a rehearing or resulted in some other evidentiary prejudice). 

United States v. Magyari, 63 M.J. 123 (when an error is not objected to at trial, plain error analysis applies; to prevail under a plain error analysis, appellant must show that: (1) there was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right; if appellant meets his burden of showing plain error, the burden shifts to the Government to prove that any constitutional error was harmless beyond a reasonable doubt). 

United States v. Brisbane, 63 M.J. 106 (when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard, and conclusions of law de novo). 

United States v. Harmon, 63 M.J. 98 (jurisdiction is a legal question which an appellate court reviews de novo).

United States v. Simmons, 63 M.J. 89 (pleas of guilty should not be set aside on appeal unless there is a substantial basis in law and fact for questioning the guilty plea). 

United States v. Pope, 63 M.J. 68 (in determining whether the evidence is legally sufficient, an appellate court views the evidence in the light most favorable to the prosecution and decides whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt; the assessment of the legal sufficiency of the evidence is limited to the evidence presented at trial). 

(an appellate court reviews a military judge’s decision to admit evidence on sentencing for a clear abuse of discretion). 

United States v. Frederickson, 63 M.J. 55 (if an appellant makes some colorable showing of possible prejudice for the SJA’s failure to serve new matter in an SJAR addendum on the defense, an appellate court will give that appellant the benefit of the doubt and it will not speculate on what the convening authority might have done if defense counsel had been given an opportunity to comment; the burden is on an appellant to demonstrate prejudice by stating what, if anything, would have been submitted to deny, counter, or explain the new matter; although the threshold is low, an appellant must demonstrate that the proffered response to the unserved addendum could have produced a different result).

United States v. Cohen, 63 M.J. 45 (when there is a motion to suppress a statement on the ground that rights’ warnings were not given, an appellate court reviews the military judge’s findings of fact on a clearly-erroneous standard and conclusions of law de novo).

United States v. Quintanilla, 63 M.J. 29 (an appellate court reviews a military judge’s decision on a challenge for cause for a clear abuse of discretion).

(an abuse of discretion occurs if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law). 

(a military judge’s ruling on a challenge for cause is given great deference; in the course of reviewing the military judge’s ruling on a challenge for cause, it is appropriate to recognize the military judge’s superior position to evaluate the demeanor of court members). 

(although the CAAF takes into account the views of the CCA on challenges for cause, it typically employs a direct review of the ruling of the military judge). 

(the CCA erred in applying a heightened standard of review on a military judge’s ruling on a challenge for cause; the careful scrutiny that accompanies capital cases is not incompatible with applying the same standard of review used in a non-capital case on a military judge’s ruling on a challenge for cause after that scrutiny has been completed). 

(the CCA erred in relying on a post-trial affidavit of a challenged member to assess the validity of the ruling by the military judge on that challenge where it did not identify any reason to depart from the normal practice of relying on the factual information developed in the record of trial when addressing challenges for cause). 

(the CAAF reviews the question of whether the remedy developed by the CCA for a military judge’s erroneous granting of a causal challenge was appropriate for an abuse of discretion). 

United States v. Politte, 63 M.J. 24 (appellate courts may use surrounding documentation to interpret an otherwise unclear convening authority’s action).

United States v. Dobson, 63 M.J. 1 (an appellate court reviews allegations of ineffective assistance of counsel de novo; on appellate review, there is a strong presumption that counsel was competent; a servicemember who seeks to relitigate a trial by claiming ineffective assistance of counsel must surmount a very high hurdle). 

(under the first prong of the test for ineffective assistance of counsel, which examines the issue of deficiency in performance, an appellate court asks: (1) are appellant’s allegations true; (2) if so, is there a reasonable explanation for counsel’s actions; and, (3) if there is not a reasonable explanation, did defense counsel’s level of advocacy fall measurably below the performance ordinarily expected of fallible lawyers). 

(even if counsel’s performance was deficient, the defense must surmount the second prong of the test for ineffective assistance of counsel, which measures prejudice; under this prong, the defense bears the burden of demonstrating that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; the second prong is critical because, if an appellate court concludes that any error would not have been prejudicial under the second prong of the test for ineffective assistance of counsel, it need not ascertain the validity of the allegations or grade the quality of counsel’s performance under the first prong).

(an appellate court reviews the ruling on the admissibility of evidence under an abuse of discretion standard, under which it assesses whether the military judge’s findings of fact were clearly erroneous or whether the decision was influenced by an erroneous view of the law).

(the test for nonconstitutional evidentiary error requires an appellate court to weigh four factors: (1) the strength of the government’s case, (2) the strength of the defense’s case, (3) the materiality of the evidence in question, and (4) the quality of the evidence in question).