2023 (October Term)
United States v. Cole, 84 M.J. 398 (where an issue as to the providence of a plea was not raised at trial and appellant's plea agreement contained a provision waiving all waivable motions, the issue before an appellate court arguably was waived; however, where the CCA specified the issue for review and neither party contends to CAAF that the issue was waived, CAAF will treat the issue as forfeited and review for plain error).
United States v. Wilson, 84 M.J. 383 (in this case, appellant waived his appellate challenge concerning the adequacy of the military judge's limiting instruction where trial defense counsel expressed no similar concerns during the court-martial and acquiesced in the language of the instruction when it was proposed and given).
United States v. Hasan, 84 M.J. 181 (an appellate court will assume that an appellant's decision to proceed pro se during post-trial clemency proceedings was valid only if he knowingly, voluntarily, and intelligently waived the right to counsel).
(whether the right to post-trial counsel was validly waived is a question of law that an appellate court reviews de novo).
(an accused's decision to proceed pro se during post-trial clemency proceedings is valid only if the accused knowingly, voluntarily, and intelligently waived the right to counsel; this inquiry into whether a waiver was knowing, voluntary, and intelligent is case specific).
(in this case, appellant knowingly, voluntarily, and intelligently waived his right to counsel during post-trial clemency proceedings where (1) the military judge advised appellant on his post-trial rights and appellant signed a form acknowledging that counsel had advised him of these rights, (2) appellant submitted a handwritten letter to the SJA stating that he wished to proceed pro se, (3) the SJA confirmed appellant's waiver with his counsel, (4) the SJA did not have any reason to question appellant's sincerity with respect to the waiver, and (5) appellant has not pointed to any record evidence or produced any affidavits suggesting that his waiver of the right to counsel during post-trial proceedings was anything other than voluntary, knowing, and intelligent).
(an intentional waiver occurs when a party intentionally relinquishes or abandons a known right).
(a waiver by operation of law happens when a procedural rule or precedent provides that an objection is automatically waived upon the occurrence of a certain event and that event has occurred).
(in this case, appellant did not waive the issue of whether the convening authority was disqualified to perform a post-trial review of appellant's case after the convening authority awarded Purple Hearts to the victims of appellant's offenses where nothing in the record establishes that appellant was aware of the convening authority's role in the Purple Heart ceremony prior to post-trial submission).
2022 (October Term)
United States v. Cunningham, 83 M.J. 367 (whether an appellant has waived an issue is a legal question that this Court reviews de novo).
(where trial defense counsel affirmatively declined to object at the conclusion of sentencing arguments, that response constituted an express waiver, obviating the need to address any issue of improper sentencing argument).
United States v. King, 83 M.J. 115 (an appellate court cannot review waived issues because a valid waiver leaves no error to correct on appeal).
(the waiver language of the 2016 version of RCM 905(e) does not mandate a waiver analysis in the member selection context).
(an appellate court typically views court-martial composition issues through a forfeiture lens rather than a waiver lens and are tested for plain error).
United States v. Day, 83 M.J. 53 (the CAAF cannot review waived issues).
(waiver can occur either by a party’s intentional relinquishment or abandonment of a known right or by operation of law; a waiver by operation of law happens when a procedural rule or precedent provides that an objection is automatically waived upon the occurrence of a certain event and that event has occurred).
(an accused may intentionally relinquish a waivable objection in a plea agreement by including a clause waiving all waivable motions).
(a waiver by operation of law may result from an unconditional guilty plea).
(an unconditional guilty plea generally waives all defects which are neither jurisdictional nor a deprivation of due process of law).
(in this case, where the military judge unambiguously advised appellant that a motion to dismiss for failure to state an offense was not waivable, neither appellant’s guilty plea nor the plea agreement including a clause waiving all waivable motions prevented appellant from raising the issue of failure to state an offense on appeal).
(in this case, although appellant did not waive her argument that the attempted conspiracy offenses did not state offenses under the UCMJ, she nonetheless forfeited this argument by failing to raise it before the military judge).
2021 (October Term)
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).
(in this case, appellant did not intentionally relinquish his claim that his Confrontation Clause rights were violated when the trial counsel misled appellant’s child by telling him that appellant was not watching his remote live testimony where nothing in the record suggests anything more than an unintentional failure by appellant to make a timely assertion of his rights; thus, the claim was not waived).
(RCM 905(e) (MCM 2016 ed.) provides that Confrontation Clause claims must be raised before the court-martial adjourned for that case, and, unless otherwise provided in the MCM, failure to do so shall constitute waiver; however, there has long been disagreement in CAAF’s precedent about whether the word “waived” in RCM 905(e) actually means “waived,” or instead means “forfeited” (the failure to preserve an issue by timely objection); regardless how one interprets the word “waived” in RCM 905(e), that rule does not extinguish a claim when there has been plain error; thus, in this case, RCM 905(e) did not extinguish, by operation of law, appellant’s ability to argue for the first time on appeal that the military judge committed plain or obvious error by admitting his son’s testimony).
United States v. Nelson, 82 M.J. 336 (the purpose of the waiver doctrine is to promote the efficiency of the entire justice system by requiring the parties to advance their claims at trial, where the underlying facts can best be determined).
in this case, where consistent with the requirements of MRE 103(a)(1)(A)–(B), the record shows that appellant timely objected to the admission of his statements to NCIS on the specific ground that they were obtained in violation of Article 31(b), UCMJ, appellant did not waive his argument that the military judge should have suppressed for all purposes the statement he gave to investigators as opposed to suppressing it for just one charge).
(where all parties at trial fully appreciate the substance of the defense objection and the military judge has full opportunity to consider it, waiver should not apply).
United States v. Edwards, 82 M.J. 239 (waiver is the intentional relinquishment or abandonment of a known right).
(in this case, where the defense counsel objected to a video as an unsworn victim statement under RCM 1001A (e) (2016 ed) (crime victims and presentencing), but indicated to the military judge that there was no dispute over the factual question of how the video was produced, those statements did not waive the legal question raised by the military judge about whether the video improperly included statements beyond those of the victim’s family).
United States v. Givens, 82 M.J. 211 (at the time of trial in this case, RCM 905(e) provided that the failure by a party to raise defects in the preferral of charges prior to entry of pleas constituted waiver; however, the military judge for good cause shown may grant relief from the waiver).
(claims of defective preferral based on allegations of unlawful command influence (e.g. coerced preferral) must be raised prior to entry of pleas, and such claims are subject to waiver unless the military judge relieves that party from the waiver after a showing of good cause).
(an appellate court reviews whether an appellant has waived an issue, a question of law, de novo.).
(per RCM 905(b)(1), any objections asserting a defect in the preferral of charges based upon unlawful command influence needed to be raised prior to the entry of pleas; because in this case, appellant does not assert that he was deterred at trial from objecting to a coerced preferral, alleged defects were waived).
(in this case, where waiver for untimely filing applied to appellant’s motion to dismiss for an alleged defective preferral, the military judge did not abuse his discretion in not finding good cause for appellant’s delay in filing because the defense could not establish why the factual basis for the alleged defective preferral could not have been explored prior to the entry of pleas).
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).
(waiver is the intentional relinquishment or abandonment of a known right).
(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 this case involving the offense of sexual abuse of a child by indecent conduct charged under Article 120b, UCMJ, when the members sent a question to the military judge during deliberations wanting to know the meaning of the phrase “in the presence of” a child, as used to define the term “lewd act” for purposes of the offense (Article 120b(h)(5)(D), UCMJ), the military judge told the members to rely on their common sense to define the phrase, and the trial defense counsel had no objection; despite this failure to object, appellant did not waive the opportunity to object on appeal to the military judge’s instruction because at the time of appellant's trial, it was unsettled whether the phrase “in the presence of” required the child to be aware of the lewd act where the statute did not define the phrase and there was no case law interpreting it).
United States v. Cooper, 82 M.J. 6 (an earlier decision by the CAAF that the accused had waived his statutory right to request IMC did not preclude him from asserting on remand an ineffective assistance of counsel claim based on the allegation that his detailed trial defense counsel’s had failed to forward his request for a specific IMC where (1) the CAAF stated that the unanswered IAC issue was for the CCA to resolve on remand, and (2) the accused’s IMC waiver could not also waive his IAC claim because the IMC waiver would have been based on the same advice the accused contended was ineffective).
(an appellant cannot waive a claim of ineffective assistance of counsel where waiver is based on the very advice he asserts was ineffective).
2020 (October Term)
United States v. Begani, 81 M.J. 273 (although pursuant to a pretrial agreement appellant agreed to waive all waivable motions, his guilty pleas did not waive the issue of whether subjecting members of the Navy’s Fleet Reserve but not members of the Retired Reserve to UCMJ jurisdiction under Article 2(a)(6), UCMJ violated the equal protection component of the Fifth Amendment where (1) RCM 705(c)(1)(B) prohibits a term of a pretrial agreement from depriving an accused of the right to challenge the jurisdiction of a court-martial, and (2) if appellant prevailed and Article 2(a)(6) was unconstitutional, the court-martial had no jurisdiction to try him).
2019 (October Term)
United States v. Blackburn, 80 M.J. 205 (an appellate court reviews de novo whether an accused has waived an issue).
(suppression arguments not raised at trial are waived under MRE 311(d)(2)(A), and preservation requires a particularized objection; this requirement ensures the government has the opportunity to present relevant evidence and develop a full record for review on appeal).
(when constitutional rights are at issue, an appellate court applies a presumption against finding waiver).
(in this case, the accused preserved a particularized objection to the good faith exception to the exclusionary rule by alleging at trial that the government provided false information to the magistrate, even though he did not use the talismanic words “false” or “reckless disregard of the truth”; furthermore, the defense’s arguments as a whole demonstrated an accusation of at least recklessness in the search authorization request, which adequately preserved the issue on appeal, and moreover, the military judge addressed this point directly, finding no evidence that the magistrate was provided false information or recklessly disregarded the truth).
United States v. Rich, 79 M.J. 472 (while there are no magic words dictating when a party has sufficiently raised an error to preserve it for appeal, of critical importance is the specificity with which counsel makes the basis for his position known to the military judge).
(waiver is different from forfeiture; whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; stated another way, a forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law).
(required findings instructions can be waived).
(in the context of findings instructions, a mere failure to object to an instruction or to omission of an instruction before the members close to deliberate constitutes forfeiture; but, when counsel affirmatively declines to object and offers no additional instructions, counsel expressly and unequivocally acquiesces to the military judge’s instructions, and his actions thus constitute waiver).
(while an appellate court reviews forfeited issues for plain error, it cannot review waived issues at all because a valid waiver leaves no error for the court to correct on appeal).
(in this case, where the military judge did not give an instruction on mistake of fact as to consent and appellant never requested a mistake of fact as to consent instruction and never objected to the absence of such an instruction, any objection to the failure to give the instruction was waived; because appellant expressly and unequivocally acquiesced to the military judge’s instructions, he waived all objections to the instructions with respect to mistake of fact as to consent on appeal; furthermore, it is evident from the record that appellant pondered the possibility of requesting a mistake of fact as to consent instruction, but ultimately made no such request; as such, those facts support the conclusion that appellant made a deliberate decision to abandon the mistake of fact as to consent instruction, and thus affirmatively waived the instructional issue on appeal).
United States v. Gonzalez, 79 M.J. 466 (in this case, appellant did not waive or forfeit his right to challenge the CCA’s authority to conduct a sentence reassessment or to impose a sentence cap after setting aside one of appellant’s convictions and the sentence where (1) there was no waiver by operation of law, (2) appellant had no basis to challenge the CCA’s authority in the remand proceedings before the convening authority because the convening authority clearly lacked the power to ignore or correct the CCA’s remand instructions, and (3) at the time appellant’s case was before the convening authority and the CCA, the CAAF had never addressed the CCA’s innovation of conducting a sentence reassessment and imposing a sentence cap when providing remand instructions to the convening authority).
(waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right).
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).
(in this case, however, where appellant was tried after the applicable precedents with respect to the consent element of Article 120c(a)(2), UCMJ, were decided, yet affirmatively declined to object to the military judge’s instructions on the elements, he waived his claim as to whether the mens rea of “knowingly” applied to the consent element by waiving any objection to the military judge’s instructions regarding the consent element).
2018 (October Term)
United States v. Haynes, 79 M.J. 17 (in this case, by answering in the affirmative when asked by the military judge if he agreed with the proposed amount of pretrial confinement credit due, appellant (through his counsel) affirmatively acknowledged that he was not entitled to any additional confinement credit; accordingly, appellant affirmatively waived any entitlement to Pierce credit (under US v. Pierce, 27 MJ 367 (CMA 1989), Pierce credit is sentencing credit for prior nonjudicial punishment imposed for the same offense punished by court-martial); appellant’s agreement (through his counsel) with the proposed amount of confinement credit was akin to a statement of “no objection,” which may count as an affirmative waiver).
(waiver can occur either by operation of law, or by the intentional relinquishment or abandonment of a known right).
(when an appellant intentionally waives a known right at trial, it is extinguished and may not be raised on appeal).
United States v. Smith, 78 M.J. 325 (waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right).
United States v. Cooper, 78 M.J. 283 (waiver can occur either by operation of law, or by the intentional relinquishment or abandonment of a known right).
(waiver is the intentional relinquishment or abandonment of a known right; whether a particular right is waivable, whether an accused must participate personally in the waiver, whether certain procedures are required for waiver, and whether the accused’s choice must be particularly informed or voluntary, all depend on the right at stake).
(the law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the accused fully understands the nature of the right and how it would likely apply in general in the circumstances — even though the accused may not know the specific detailed consequences of invoking it; the accused, for example, may waive his right to remain silent, his right to a jury trial, or his right to counsel even if the accused does not know the specific questions the authorities intend to ask, who will likely serve on the jury, or the particular lawyer the State might otherwise provide).
(in this case, the accused knowingly and intelligently waived his right to an IMC (1) where the military judge carefully explained to him at arraignment the nature of the right to IMC, and the accused told the military judge that he understood his rights and wanted to be represented solely by his current counsel, (2) where the military judge further asked if an IMC was ever requested, and the accused sat mute when his counsel told the military judge that no such request had been made, and (3) when a second defense counsel entered his appearance, the military judge again inquired as to whether other counsel had been requested, and when that second counsel told the military judge that no request for an IMC had been made, the accused again remained mute; the military judge’s colloquy with the accused concerning his right to an IMC was unequivocal; the military judge spoke directly to the accused and received direct answers back without the filter of the defense counsel; if the accused had wanted other counsel, he should have said so; the accused fully understood the nature of the right to an IMC and how it would have applied to him).
United States v. Forbes, 78 M.J. 279 (a guilty plea does not waive review of whether a plea was provident).
2017 (October Term)
United States v. Jones, 78 M.J. 37 (when an appellant does not raise an objection to the admission of evidence at trial, an appellate court first must determine whether the appellant waived or forfeited the objection; if the appellant waived the objection, then it may not review it at all; but if the appellant merely forfeited the objection, then it may review the objection for plain error).
(waiver can occur either by operation of law or by the intentional relinquishment or abandonment of a known right).
(an appellate court applies a presumption against finding a waiver of constitutional rights).
(a waiver of a constitutional right is effective if it clearly established that there was an intentional relinquishment of a known right).
(in certain and exceptional circumstances, counsel may waive a constitutional right on behalf of a client).
(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).
United States v. Hendrix, 77 M.J. 454 (all issues surrounding the expiration of the 120-day clock were waived when appellant failed to object to the twelve days of administrative delay at the time of the preliminary hearing officer’s preliminary report and when the military judge failed to make findings of fact or conclusions of law regarding whether appellant had good cause for his delayed challenge to the PHO’s excludable delay determination).
United States v. Dinger, 77 M.J. 447 (although an accused may waive many of the most fundamental constitutional rights, he does not by a nonconditional guilty plea waive his right to appeal a sentence that is unlawful because it exceeds the statutory maximum, even where his pretrial agreement authorized the convening authority to approve such a sentence and he agreed to plead guilty despite the military judge’s erroneous ruling on the maximum punishment).
United States v. Hardy, 77 M.J. 438 (under the plain language of RCM 905(b)(2) and (e) and past CAAF precedent, an unconditional guilty plea waives an unpreserved UMC objection; however, a service court of criminal appeals may exercise its powers under Article 66(c), UCMJ, to address an unpreserved UMC objection; but note that an executive order effective 1 January 2019 will amend RCM 905(e), likely affecting the analysis of future cases involving unpreserved UMC objections in which there is no other ground for finding waiver; the amended RCM 905(e) will specify that a failure to raise an objection under RCM 905(b)(pretrial motions) forfeits the objection absent an affirmative waiver).
(when an appellant has forfeited an issue, an appellate court may review the issue for plain error, but when an appellant has waived an issue, it cannot review it at all).
(it is a general principle of criminal law that an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings; because an unreasonable multiplication of charges is not a jurisdictional defect, a guilty plea waives the objection).
United States v. Andrews, 77 M.J. 393 (deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal).
(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 (a waive all waivable motions provision entered at pretrial does not provide the government carte blanche to introduce at sentencing information that does not conform to the rules, or to make arguments that are prohibited by the law; the CAAF declines to adopt a reading of a waive all waivable motions provision in a pretrial agreement that either shields the government from the requirements of RCM 1001A (crime victims and presentencing) or restricts the accused ex ante from objecting to any and all future infirmities unrelated to the plea; the government remains free to negotiate pretrial specific provisions related to sentencing, such as stipulations of expected testimony, and waiver of foundational requirements, etc; however, RCM 705(c)(1)(B) proscribes the enforcement of terms in a pretrial agreement that would deprive an accused of certain rights, including the right to complete sentencing proceedings; certain matters cannot be bargained away because to give up such matters would leave no substantial means to ensure judicially that the sentencing proceedings met acceptable standards).
United States v. Robinson, 77 M.J. 303 (when there is a waiver of an issue, that issue is extinguished and may not be raised on appeal).
United States v. Mooney, 77 M.J. 252 (an appellate court does not review waived issues because a valid waiver leaves no error to correct on appeal).
(an unconditional plea of guilty waives all nonjurisdictional defects at earlier stages of the proceedings).
(appellant’s unconditional guilty plea and his pretrial agreement, stating he would waive all motions which may be waived under the RCMs, did not preclude him from challenging on appeal the convening authority’s action that ordered his military sentence to be served consecutively to his federal sentence; whether a convening authority has the power to order a consecutive sentence is not a pretrial defect and is not a factual issue relating to appellant’s guilt; additionally, because this issue did not arise until post-trial, there was no motion to be made during the court-martial; in fact, appellant affirmatively objected at the earliest opportunity, that is, when the SJA first proposed the consecutive sentence proposal to the convening authority in the addendum to the SJA’s post-trial recommendation).
United States v. Riesbeck, 77 M.J. 154 (improper member selection can constitute unlawful command influence, which cannot be waived).
(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).
2016 (October Term)
United States v. Oliver, 76 M.J. 271 (while there is a presumption against the waiver of constitutional rights, an appellant may waive the right to raise such issue on appeal provided it is clearly established that there was an intentional relinquishment or abandonment of a known right).
(typically, a trial defense counsel’s affirmative assertion at a court‑martial that he had no objection to the military judge considering a lesser included offense to a charged offense would constitute waiver of the issue as to whether the offense was in fact a lesser included one; however, in this case, given the seemingly unsettled nature of the law at the time of his court-martial and its clear resolution in his favor at the time of his appeal, forfeiture rather than waiver applied).
United States v. Feliciano, 76 M.J. 237 (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; if an appellant has forfeited a right by failing to raise it at trial, an appellate court reviews 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. Davis, 76 M.J. 224 (an accused’s right to a required instruction on findings is not waived (that is, extinguished on appeal) by a failure to object without more).
(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).
(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).
(waiver in the context of required instructions is accomplished by an affirmative action, not a mere failure to object; RCM 920(f), the court-martial rule on waiver of instructions on findings, is a forfeiture provision, not a waiver provision).
United States v. Swift, 76 M.J. 210 (where an accused states he has no objection to the admission of a confession at trial, he has waived his right to complain on appeal that the confession lacked sufficient corroboration to be admitted).
(as a general proposition of law, the words “no objection” constitute an affirmative waiver of the right or admission at issue).
(adding rule-based suspenders to the ordinary waiver belt, MRE 304(f)(1) provides that any objection under MRE 304, which broadly governs “Confessions and admissions,” to the admission of a confession shall be made before the submission of a plea, and that failure to so move or object constitutes a waiver of the objection; by its terms, MRE 304(f)(1) applies to objections based on a lack of corroboration under MRE 304(c)).
United States v. Ahern, 76 M.J. 194 (deviation from a legal rule is error unless the rule has been waived; while an appellate court reviews forfeited issues for plain error, it does not review waived issues because a valid waiver leaves no error to correct on appeal).
(whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right).
(whether a particular right is waivable; whether an accused must participate personally in the waiver; whether certain procedures are required for waiver; and whether an accused’s choice must be particularly informed or voluntary, all depend on the right at stake).
(MRE 304(f)(1) plainly states that claims arising under MRE 304(a)(2) are waived absent an objection; this is not a case where the rule uses the word “waiver” but actually means “forfeiture;” MRE 304(f)(1) does not mention plain error review, and instead unambiguously provides that any claim arising under MRE 304 is waived absent an objection).
(under the clear dictates of MRE 304(f)(1), at a GCM for the offense of aggravated sexual assault of a child, appellant’s failure to object to the admission of the content of telephone calls from his wife in which he failed to deny allegations of wrongdoing waived his right to object to their admission on appeal; moreover, under the ordinary rules of waiver, appellant’s affirmative statements that he had no objection to their admission also operated to extinguish his right to complain about their admission on appeal; appellant not only waived his right to object to the admission of the phone calls but to their use during the prosecution’s argument on findings when the prosecution argued that appellant’s silence in response to his wife’s accusations indicated his guilt, and appellant still raised no objection).
2015 (September Term)
United States v. Chin, 75 M.J. 220 (as a general matter, when an error is waived, the result is that there is no error at all and an appellate court is without authority to reverse a conviction on that basis).
(if the sentence approved by the convening authority includes capital punishment, a punitive discharge, or confinement for one year or more, Article 66(c), UCMJ, provides for mandatory review, and the CCAs have an affirmative obligation to ensure that the findings and sentence in each such case are correct in law and fact and should be approved; there is no waiver exception in the statute, nor does reading one in make sense given the existence of Article 61, UCMJ, and its associated rules).
(while an accused is prevented from raising an issue by a waive all waivable motions provision, an accused has no authority to waive a CCA’s statutory mandate unless, through Article 61, UCMJ, procedures, the accused waives the right to appellate review altogether — and that election cannot be made until after the trial and sentencing; because Article 61, UCMJ, is the exclusive means by which an accused can waive the right to a complete appellate review, that right cannot be waived in a PTA, even when a “waive all waivable motions” provision is given full effect; it would defy logic to conclude that while an accused may not waive the right to complete appellate review as part of a PTA, she can nonetheless sidestep Article 61, UCMJ, and the temporal protections built into it by virtue of a waive all waivable motions provision in a PTA, permitting an accused to, in effect, waive the right to complete appellate review as part of a PTA; Article 66(c), UCMJ, cannot be construed in such a fashion that the particular and protective waiver procedure provided by Article 61, UCMJ, and its accompanying rules can be circumvented in this way, which would be at odds with the overall structure of the UCMJ; either a case is subject to a complete appellate review under Article 66(c), UCMJ, or it is not because such review was waived — after trial and sentencing — under Article 61, UCMJ).
(if an appellant elects to proceed with Article 66, UCMJ, review, then the CCA is commanded by statute to review the entire record and approve only that which should be approved; a fortiori, the CCAs are required to assess the entire record to determine whether to leave an accused’s waiver intact, or to correct the error).
(waiver at the trial level continues to preclude an appellant from raising the issue before either the CCA or the CAAF; and a waive all waivable motions provision or unconditional guilty plea continues to serve as a factor for a CCA to weigh in determining whether to nonetheless disapprove a finding or sentence; Article 66, UCMJ, is neither limitless nor standardless, and CCAs are presumed to know the law and follow it).
(in this case, where the CCA provided a detailed explanation for disapproving and merging offenses despite the accused’s waiver of all waivable motions, holding that this deviation from its past treatment and application of waiver was warranted by the facts of this case in that the charging scheme grossly exaggerated the accused’s criminality, it disapproved specifications based on a legal standard, citing the fact that the unreasonable multiplication of charges was so plainly presented in this case; that rationale is based on the legal standard the CAAF gave it, and the CCA’s action was well within the limitations of its Article 66(c), UCMJ, review).
2014 (September Term)
United States v. Castillo, 74 M.J. 39 (where appellant did not raise the issue of panel members being drawn exclusively from his brigade at trial, as a result, this issue was waived as a discrete ground for challenge).
2013 (September Term)
United States v. Davenport, 73 M.J. 373 (the requirement that a record of trial be complete and substantially verbatim in order to uphold the validity of a verbatim record sentence is one of jurisdictional proportion that cannot be waived).
United States v. Elespuru, 73 M.J. 326 (a waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege; there is a presumption against the waiver of constitutional rights, although no magic words are required to establish a waiver; the determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case).
(in this case, appellant knowingly waived his right his claim on appeal that the specifications for abusive sexual contact and wrongful sexual contact were multiplicious, by acknowledging at trial that the elements test was not met and declining to argue that the specification of wrongful sexual contact was a lesser included offense of abusive sexual contact).
United States v. Lee, 73 M.J. 166 (a plea of guilty waives nonjurisdictional errors that occurred in the earlier stages of the trial proceedings; RCM 910(a)(2) does create an exception where an accused enters into a conditional guilty plea; however, because there is no constitutional right to enter such a plea, it follows that compliance with the regulation is the sole means of entering a conditional plea and preserving the issue on appeal).
(while the waiver doctrine, by which a guilty plea waives nonjurisdictional errors that occurred in earlier stages of the trial proceedings, is not without limits, those limits are narrow and relate to situations in which, on their face, the prosecution may not constitutionally be maintained; such limits do not arise where an appellant merely complains of antecedent constitutional violations or a deprivation of constitutional rights that occurred prior to the entry of the guilty plea; rather they apply where on the face of the record the court had no power to enter the conviction or impose the sentence).
(where an Article 10, UCMJ, speedy trial motion is litigated at trial, that issue is preserved for appeal despite an unconditional guilty plea; this narrow exception is based on the unique nature of the protections set forth in Article 10).
(in this case, appellant’s unconditional guilty pleas on rehearing waived review of any speedy appellate review claim relating to the post-trial period preceding the rehearing, including any prejudice from any additional time spent on a state public sex offender registry prior to the waiver; appellant’s guilty pleas occurred immediately after a motion for relief for the same post-trial appellate delay was fully briefed, argued, and denied, and appellant did not claim that the court-martial lacked jurisdiction over the offenses, did not litigate a motion under Article 10, UCMJ, did not challenge the voluntary and intelligent character of his pleas, and did not in any other way attempt to preserve the appellate delay issue for appeal).
2012 (September Term)United States v. Gaskins, 72 M.J. 225 (in this case, where appellant failed to object at trial to Article 134, UCMJ, specifications on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the error; moreover, appellant’s failure to raise the issue at his sentence rehearing, which was held two months after the decision in Fosler, did not constitute waiver because a defense motion to dismiss the findings for failure to allege the terminal element was beyond the military judge’s proscribed authority to conduct a rehearing on sentence).
United States v. Goings, 72 M.J. 202 (where appellant failed to object at trial that the offense of indecent acts with another, as proscribed under Article 134, UCMJ, was unconstitutional as applied to him, but on appeal alleges constitutional error, in light of (1) the presumption against the waiver of constitutional rights, and (2) the requirement that a waiver clearly establish an intentional relinquishment of a known right or privilege, the alleged error will be considered forfeited, not waived, and it will be reviewed by an appellate court for plain error; under plain error review, the court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused).
(in this case, where appellant failed to object at trial to an Article 134, UCMJ, specification on the ground that the terminal element was not pleaded, because appellant’s trial occurred before Fosler (70 MJ 225 (CAAF 2011)), his failure to object forfeited, rather than waived, the underlying constitutional right to notice, and on appeal, plain error analysis must be applied).
United States v. Vazquez, 72 M.J. 13 (there is a presumption against waiver of the fullest expression of rights under the Confrontation Clause).
2011 (September Term)United States v. Stanley, 71 M.J. 60 (waiver does not apply to required instructions such as affirmative defenses).
United States v. Campbell, 71 M.J. 19 (defense counsel’s request for merger of the charges based on unreasonable multiplication before the trial and again after the findings were returned preserved his claim on appeal regarding dismissal of any unreasonably multiplied offenses).
2010 (September Term)
United States v. Sweeney, 70 M.J. 296 (whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right; there is a presumption against the waiver of constitutional rights, and for a waiver to be effective it must be clearly established that there was an intentional relinquishment of a known right or privilege; to determine whether a failure to object was waiver or mere forfeiture, an appellate court looks to the state of the law at the time of trial, and it will not find waiver where subsequent case law opened the door for a colorable assertion of the right to confrontation where it was not previously available).
(under plain error review, an appellate court will grant relief only where (1) there was error, (2) the error was plain and obvious, and (3) the error materially prejudiced a substantial right of the accused; where the alleged error is constitutional, the prejudice prong is fulfilled where the government cannot show that the error was harmless beyond a reasonable doubt).
United States v. Eslinger, 70 M.J. 193 (failure to object to the admission of evidence at trial forfeits appellate review of the issue absent plain error).
(any additional claimed infirmity based on lack of personal knowledge regarding the testimony in sentencing of appellant’s group command sergeant major that appellant should not be retained in the armed forces was affirmatively waived and was not subject to plain error review, where defense counsel only objected that the testimony was cumulative and did not object that the testimony lacked a proper foundation).
United
States v. McMurrin, 70 M.J. 15 (where the
accused failed to object to military
judge’s consideration of negligent homicide as a LIO to involuntary
manslaughter, his failure to object
forfeited, rather
than waived, any error).
United
States v. Girouard, 70 M.J. 5 (deviation from a
legal rule is error unless the
rule has been waived).
(whether a particular right is
waivable, whether
the defendant must participate personally in the waiver, whether
certain
procedures are required for waiver, and whether the accused’s choice
must be
particularly informed or voluntary, all depend on the right at stake).
(there is a presumption
against the waiver of
constitutional rights, and for a waiver to be effective, it must be
clearly
established that there was an intentional relinquishment or abandonment
of a
known right or privilege).
(charged with premeditated
murder, appellant did
not waive the error arising when the military judge erroneously
instructed on
negligent homicide as an LIO, even though he had requested that
instruction and
even though at the time of trial, negligent homicide was considered an
LIO of
murder, where the instruction violated appellant’s due process right
not to be
convicted of a crime that was not an LIO of the offense with which he
was
charged, and where defense counsel’s trial strategy could not be
considered an
intentional relinquishment or abandonment of a known right when this
LIO issue
had not been decided until after trial).
United
States v. Daly, 69 M.J. 485 (a question of
jurisdiction is not subject to
waiver and may be raised at any time).
United
States v. Gooch, 69 M.J. 353 (an appellant
cannot waive a claim of
ineffective assistance of counsel where waiver is based on the very
advice he
asserts was ineffective).
United States v. Pope, 69 M.J. 328
(failure to object to an instruction given or omitted waives the
objection
absent plain error).
United
States v. Jones, 69 M.J. 294 (an unconditional
guilty plea which results in a finding of guilty waives any objection,
whether
or not previously raised, insofar as the objection relates to the
factual issue
of guilt of the offenses to which the plea was made; the point is that
a
counseled plea of guilty is an admission of factual guilt so reliable
that,
where voluntary and intelligent, it quite validly removes the
issue of
factual guilt from the case).
(an
unconditional guilty
plea generally waives all pretrial and trial defects that are not
jurisdictional or a deprivation of due process of law).
(appellant’s
unconditional guilty plea to receiving child pornography waived any
issues related
to the military judge’s denial of his pretrial and mid-providence
requests to
view the child pornography, where the denial neither implicated due
process
rights nor resulted in the loss of appellant’s pretrial agreement).
2009 (September Term)
United
States v. Craig, 68 M.J. 399 (an
unconditional guilty plea waives multiplicity
claims when the offenses are not facially duplicative).
(appellant’s unconditional
guilty pleas waived
the issue of whether the specifications charging appellant with receipt
and
possession of the same child pornography were multiplicious, where the
specifications were not facially duplicative because appellant received
the
files of the images on one medium and stored them on another).
United
States v. Douglas,
68 M.J. 349 (the CAAF has not applied the doctrine of waiver where
unlawful command
influence is at issue).
United
States v. Bradley, 68 M.J. 279 (an
unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the proceedings).
(RCM 910(j) provides that a
plea of guilty
which results in a finding of guilty waives any objection, whether or
not
previously raised, insofar as the objection relates to the factual
issue of
guilt of the offense to which the plea was made).
(RCM 910(a)(2) provides for
conditional guilty
pleas as an exception to the general waiver rule; a conditional guilty
plea is
a creature of statute or regulation; there is no constitutional right
to enter
such a plea; this being the case, it follows that compliance with the
regulation is the sole means of entering a conditional plea and
preserving the
issue on appeal; such a plea cannot be implied; the military judge and
the
government each have complete discretion whether to permit or consent
to a
conditional guilty plea).
(in this case, the CCA erred
in concluding
that there was a de facto conditional guilty plea, where the CCA
determined
that the military judge’s ambiguous advisement with regard to waiver
and the
civilian defense counsel’s belief that the issue was preserved for
appellate
review were material factors in the accused’s decision to plead guilty
and
that, accordingly, the accused was entitled to appellate review of his motion to dismiss; such a plea cannot
be implied; it can only be manifested by compliance with the
conditional guilty
plea rule of RCM 910(a)(2)).
(the accused’s unconditional
guilty plea
waived his ability to appeal the military judge’s denial of his motion
to
disqualify trial counsel based on that counsel having served as a
witness in a
pretrial motion hearing, as well as a motion to dismiss based on the
government’s alleged derivative use of his immunized statements and
testimony;
the record was clear that neither the government nor the military judge
consented to a conditional plea as required by RCM 910(a)(2)).
(while the waiver doctrine,
under which an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings, is not without limits, those limits are
narrow and
relate to situations in which, on its face, the prosecution may not
constitutionally be maintained; this case is not such a situation, and
the
waiver doctrine therefore applies).
(a guilty plea will not be
rejected as
improvident unless there is a substantial basis in law or fact for
doing so).
(the accused’s unconditional
guilty plea,
resulting in waiver of his ability to appeal the military judge’s
denial of his
motion to disqualify trial counsel and his motion to dismiss, was not
improvident, even if the accused thought the disqualification issue
would be
preserved, where the accused was represented by experienced civilian
defense
counsel, the accused explicitly entered an unconditional plea of
guilty, and there
is no allegation of ineffective assistance of counsel, or that the
accused (who
was getting the benefits of a quite favorable pretrial agreement) did
not
understand what he was doing). United States v. Bradley, 68 M.J.
279 (an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings).
(RCM 910(j) provides that a
plea of guilty
which results in a finding of guilty waives any objection, whether or
not
previously raised, insofar as the objection relates to the factual
issue of
guilt of the offense to which the plea was made).
(RCM 910(a)(2) provides for
conditional guilty
pleas as an exception to the general waiver rule; a conditional guilty
plea is
a creature of statute or regulation; there is no constitutional right
to enter
such a plea; this being the case, it follows that compliance with the
regulation is the sole means of entering a conditional plea and
preserving the
issue on appeal; such a plea cannot be implied; the military judge and
the
government each have complete discretion whether to permit or consent
to a
conditional guilty plea).
(in this case, the CCA erred
in concluding
that there was a de facto conditional guilty plea, where the CCA
determined
that the military judge’s ambiguous advisement with regard to waiver
and the
civilian defense counsel’s belief that the issue was preserved for
appellate
review were material factors in the accused’s decision to plead guilty
and
that, accordingly, the accused was entitled to appellate review of his motion to dismiss; such a plea cannot
be implied; it can only be manifested by compliance with the
conditional guilty
plea rule of RCM 910(a)(2)).
(the accused’s unconditional
guilty plea
waived his ability to appeal the military judge’s denial of his motion
to
disqualify trial counsel based on that counsel having served as a
witness in a
pretrial motion hearing, as well as a motion to dismiss based on the
government’s alleged derivative use of his immunized statements and
testimony;
the record was clear that neither the government nor the military judge
consented to a conditional plea as required by RCM 910(a)(2)).
(while the waiver doctrine,
under which an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings, is not without limits, those limits are
narrow and
relate to situations in which, on their face, the prosecution may not
constitutionally be maintained; this case is not such a situation, and
the
waiver doctrine therefore applies).
(a guilty plea will not be
rejected as
improvident unless there is a substantial basis in law or fact for
doing so).
(the accused’s unconditional
guilty plea,
resulting in waiver of his ability to appeal the military judge’s
denial of his
motion to disqualify trial counsel and his motion to dismiss, was not
improvident, even if the accused thought the disqualification issue
would be
preserved, where the accused was represented by experienced civilian
defense
counsel, the accused explicitly entered an unconditional plea of
guilty, and
there is no allegation of ineffective assistance of counsel, or that
the
accused (who was getting the benefits of a quite favorable pretrial
agreement)
did not understand what he was doing).
(RCM 910(j) provides that a
plea of guilty
which results in a finding of guilty waives any objection, whether or
not
previously raised, insofar as the objection relates to the factual
issue of
guilt of the offense to which the plea was made).
(RCM 910(a)(2) provides for
conditional guilty
pleas as an exception to the general waiver rule; a conditional guilty
plea is
a creature of statute or regulation; there is no constitutional right
to enter
such a plea; this being the case, it follows that compliance with the
regulation is the sole means of entering a conditional plea and
preserving the
issue on appeal; such a plea cannot be implied; the military judge and
the
government each have complete discretion whether to permit or consent
to a
conditional guilty plea).
(in this case, the CCA erred
in concluding
that there was a de facto conditional guilty plea, where the CCA
determined
that the military judge’s ambiguous advisement with regard to waiver
and the
civilian defense counsel’s belief that the issue was preserved for
appellate
review were material factors in the accused’s decision to plead guilty
and
that, accordingly, the accused was entitled to appellate review of his motion to dismiss; such a plea cannot
be implied; it can only be manifested by compliance with the
conditional guilty
plea rule of RCM 910(a)(2)).
(the accused’s unconditional
guilty plea
waived his ability to appeal the military judge’s denial of his motion
to
disqualify trial counsel based on that counsel having served as a
witness in a
pretrial motion hearing, as well as a motion to dismiss based on the
government’s alleged derivative use of his immunized statements and
testimony;
the record was clear that neither the government nor the military judge
consented
to a conditional plea as required by RCM 910(a)(2)).
(while the waiver doctrine,
under which an
unconditional plea of guilty waives all nonjurisdictional defects at
earlier
stages of the proceedings, is not without limits, those limits are
narrow and
relate to situations in which, on its face, the prosecution may not
constitutionally be maintained; this case is not such a situation, and
the
waiver doctrine therefore applies).
(a guilty plea will not be
rejected as
improvident unless there is a substantial basis in law or fact for
doing so).
(the accused’s unconditional
guilty plea,
resulting in waiver of his ability to appeal the military judge’s
denial of his
motion to disqualify trial counsel and his motion to dismiss, was not
improvident, even if the accused thought the disqualification issue
would be
preserved, where the accused was represented by experienced civilian
defense counsel,
the accused explicitly entered an unconditional plea of guilty, and
there is no
allegation of ineffective assistance of counsel, or that the accused
(who was
getting the benefits of a quite favorable pretrial agreement) did not
understand what he was doing).
United
States v. Campbell, 68 M.J. 217 (where appellant
pled guilty unconditionally
to three specifications of possessing child pornography and the
specifications
were not facially duplicative, he waived his ability to contest whether
he
should have been charged with only one specification of possessing
child
pornography).
United
States v. Schweitzer, 68 M.J. 133 (RCM 910(j)
provides a bright-line
rule - an unconditional guilty plea which results in a finding of
guilty waives
any objection, whether or not previously raised, insofar as the
objection
relates to the factual issue of guilt of the offense to which the plea
was
made; the point is that a counseled plea of guilty is an admission of
factual
guilt so reliable that, where voluntary and intelligent, it quite
validly
removes the issue of factual guilt from the case).
(an unconditional guilty plea
generally waives all defects which are neither jurisdictional nor a
deprivation
of due process of law; nevertheless, on occasion, an unconditional
guilty plea
by itself does not waive an objection on appeal to a nonfactual issue,
such as multiplicity,
speedy trial under Article 10, UCMJ, and the defect of a specification
that
fails to state an offense).
(appellant’s unconditional
guilty
pleas to conduct unbecoming an officer waived his objection on appeal
that the
officer acting as the convening authority in his case was also an
accuser;
because the officer was authorized under Article 22(a), UCMJ, to
convene appellant’s
court-martial, any error was nonjurisdictional, and at trial, appellant
explicitly acknowledged understanding that his guilty pleas waived on
appeal
the objection to the convening authority being an accuser).
United
States v. Marshall, 67 M.J. 418 (forfeiture and
waiver, although frequently
conflated, are not the same).
(the purpose of the forfeiture
rule is to
ensure that the trial judge has the opportunity to rule on issues
arising at
trial, and to prevent the raising of such issues for the first time on
appeal,
after any chance to correct them has vanished).
United
States v. Campos, 67 M.J. 330 (a forfeiture is
basically an oversight; a
waiver is a deliberate decision not to present a ground for relief that
might
be available in the law; while an appellate court reviews forfeited
issues for
plain error, it cannot review waived issues at all because a valid
waiver
leaves no error for the court to correct on appeal; in
determining whether a
particular circumstance constitutes a waiver or a forfeiture, an
appellate
court considers whether the failure to raise the objection at the trial
level
constituted an intentional relinquishment of a known right).
(in this case, appellant, who
as part of a
negotiated pretrial agreement, entered into a stipulation of expected
testimony
of a psychologist who had expertise in evaluating and treating sexual
offenders, waived any right to claim error on the ground that the
witness did
not personally appear to present live testimony at sentencing in a
child pornography
prosecution, where the stipulation amounted to an agreement between
appellant,
defense counsel, and trial counsel that if the witness were called to
testify,
he would testify under oath as reflected in the document, the military
judge
provided appellant with a detailed explanation of the stipulation,
appellant
agreed to the “use of” the stipulation, and defense counsel represented
that he
desired to enter into the stipulation).
(after appellant in a child
pornography prosecution
entered into a stipulation of expected testimony of a psychologist who
had
expertise in evaluating and treating sexual offenders, defense counsel
waived the
issue of admissibility of the substance of the stipulation at
sentencing by
answering “no” when the military judge asked for objections; although
the stipulation
did not expressly consent to the admission of the witness’s testimony,
defense
counsel had advance notice of the substance of the testimony, reviewed
the
expected testimony, and considered the impact of the stipulation on
appellant’s
case).
United
States v. Gladue, 67 M.J. 311 (waiver
is different from forfeiture; whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is
the intentional relinquishment or abandonment of a known right; the
distinction
between the terms is important; if an appellant has forfeited a right
by
failing to raise it at trial, an appellate court reviews it for plain
error; when,
on the other hand, an appellant intentionally waives a known right at
trial, it
is extinguished and may not be raised on appeal).
(a criminal defendant may
knowingly and
voluntarily waive many of the most fundamental protections afforded by
the
Constitution; that includes double jeopardy, the basis of the
multiplicity
objection).
(in the absence of an explicit
prohibition, a
party may knowingly and voluntarily waive such a nonconstitutional
right in a pretrial
agreement).
(although the President has
prohibited the
waiver of certain fundamental rights in a pretrial agreement, neither
multiplicity nor the unreasonable multiplication of charges is among
them).
(appellant’s
pretrial agreement expressly waiving any waivable motions waived claims
of
multiplicity and unreasonable multiplication of charges, and
extinguished his
right to raise these issues on appeal).
United
States v. Harcrow, 66 M.J. 154 (in addressing waiver of
constitutional rights,
the Supreme Court long ago emphasized that there is a presumption
against the
waiver of constitutional rights, and for a waiver to be effective, it
must be
clearly established that there was an intentional relinquishment or
abandonment
of a known right or privilege; yet the Supreme Court has also
acknowledged that
counsel may, under some conditions, where the circumstances are not
exceptional, preclude the accused from asserting constitutional claims;
that is
to say, in certain circumstances, defense counsel may waive
constitutional
rights on behalf of their clients).
2007
2006
United
States v. Finch, 64 M.J. 118 (failure to object at trial to
exceptions and
substitutions made at findings constitutes waiver of that issue in the
absence
of plain error).
United
States v. Haney, 64 M.J. 101 (failure to object to improper
argument before
the military judge begins to instruct the members on findings
constitutes
waiver in the absence of plain error).
United
States v. Washington, 63 M.J. 418 (where appellant did not object
to the
failure of trial counsel to place a witness under oath, appellant
waived the
issue absent plain error; in this context, the rationale for applying
waiver is
twofold: first, the defect or failure could have been corrected if a
timely objection
had been made; second, in the absence of a waiver rule, counsel might
deliberately avoid objecting to a witness being unsworn in order to
have a
ground of appeal).
United
States
v. Miller, 62 M.J. 471 (Congress has provided a narrow window in
which an
accused may waive appellate review in non-capital cases; under Article
61(a),
UCMJ, such a waiver must be signed by the accused and defense counsel
and must
be filed within 10 days after the action on the sentence is served on
the
accused or on defense counsel; the convening authority or other person
taking
such action may extend the period for such filing by not more than 30
days;
because a waiver may not be filed prior to the convening authority’s
action, a
premature filing is invalid, and appellate review will proceed).
(if
the accused
has waived review by the CCA, the convening authority must refer the
case for
review by a judge advocate under Article 64, UCMJ, and RCM 1112; in
specified
circumstances, including a case in which a punitive discharge has been
adjudged, the case is then submitted for further action by an officer
exercising general court-martial authority under Article 64(b) and RCM
1112(e);
such cases also may be reviewed by the Office of the Judge Advocate
General
under Article 69(b), UCMJ).
(if
review by
the CCA has not been waived, the accused may withdraw an appeal at any
time in
a non-capital case; the discretion to grant or deny a motion to
withdraw an
appeal is vested in the appellate courts).
(the
preferred
method of demonstrating a provident waiver is a document signed after
the
convening authority’s action, but a document signed beforehand may be
used so
long as the record demonstrates a serious, rational, and informed
discussion
between the accused and defense counsel after the convening authority’s
action,
but before the filing of the waiver).
(the
text of
Article 61 does not preclude signing a waiver at any time so long as
there is a
provident waiver decision after the convening authority’s action;
because this
conclusion is based on the text of Article 61, it would be the same
even if the
President had not expressly authorized an early signing under RCM
1110(f)).
United
States v. Wolford, 62 M.J. 418 (even though defense counsel did not
object
to the military judge’s instructions at the time of trial, waiver must be established by affirmative action
of the
accused’s counsel, and not by a mere failure to object to erroneous
instructions; where there is no affirmative waiver, an appellate court
reviews
instructional claims de novo).
United
States v. Bungert, 62 M.J. 346 (a claim of error that is not raised
at
trial is waived unless it rises to the level of plain error).
United
States v. Capers, 62 M.J. 268 (if defense counsel does not make a
timely
comment on an error or omission in the SJA’s post-trial recommendation,
the
error is waived unless it is prejudicial under a plain error
analysis).
2005
United
States v. Scalo, 60 M.J. 435 (if defense counsel does not make a
timely
comment on an omission in the SJA’s recommendation, the error is waived
unless
it is prejudicial under a plain error analysis).
United
States v. Alexander, 61 M.J. 266 (questions of jurisdiction are not
subject
to waiver; jurisdiction over the person, as well as jurisdiction over
the
subject matter, may not be the subject of waiver; a jurisdictional
defect goes
to the underlying authority of a court to hear a case; thus, a
jurisdictional
error impacts the validity of the entire trial and mandates
reversal).
2004
United
States v. Pauling, 60 MJ 91 (an unconditional guilty
plea
waives a multiplicity issue unless the offenses are facially
duplicative, that
is, factually the same).
2003
United
States v. Gudmundson, 57 MJ 493 (if an appellant
is aware
of the convening authority's involvement in a case, but chooses to not
raise a
disqualification issue at trial or in a post-trial submission to the
convening authority,
the issue is waived).
United
States v. King, 58 M.J. 110 (in the future,
failure at
trial to seek Mason credit for pretrial restriction tantamount to
confinement
will constitute waiver of that issue in the absence of plain error; the
purpose
of the so-called raise-or-waive rule is to promote the efficiency of
the entire
justice system by requiring the parties to advance their claims at
trial, where
the underlying facts can best be determined.).
(once this opinion becomes final, failure at trial to seek Mason
credit for
conditions of restriction alleged to be tantamount to confinement
waives that
issue on appeal in the absence of plain error.).
United
States v. Miller, 58 MJ 266 (although appellant
did not
object to the instructions as given, waiver is inapplicable; we have
held that
R.C.M. 920(f)’s waiver rule is inapplicable to certain mandatory
instructions
such as reasonable doubt, the elements of the offenses, and affirmative
defenses; similarly, we hold that R.C.M. 1005(f)’s rule of waiver does
not
serve to forfeit review of this issue; the military judge bears the
primary
responsibility for ensuring that mandatory instructions, including the
pretrial
confinement instruction mandated by the President in R.C.M. 1005(e) and
by this
Court’s decision in United
States v. Davidson, 14 M.J. 81 (C.M.A.
1982), are
given and given accurately).
United
States v. Inong, 58 MJ 460 (in United States v.
Huffman,
40 M.J. 225, 227 (C.M.A. 1994), a majority of this Court held that we
will not
invoke waiver of alleged Article 13 violations unless there is an
affirmative,
fully developed waiver on the record; today, however, the Court
concludes
Huffman’s affirmative waiver rule is unworkable; as a result, the Court
now
overrules Huffman and begins followings the "raise or waive" rule
required by the Manual for Courts-Martial, United States, as relates to
assertions of illegal pretrial confinement and punishment; in so doing,
the
Court also overrules United
States v. Southwick, 53 M.J. 412 (C.A.A.F.
2000),
and United States v. Tanksley,
54 M.J. 169 (C.A.A.F. 2000), to the
extent they
establish a "tantamount to affirmative waiver" rule in the Article 13
arena; the Court therefore holds that once this opinion becomes final,
failure
at trial to seek sentence relief for violations of Article 13 waives
that issue
on appeal absent plain error; having said that, however, the Court
urges all
military judges to remember that nothing precludes them from inquiring
sua
sponte into whether Article 13 violations have occurred, and prudence
may very
well dictate that they should).
(the purpose of the MCM’s "raise or waive" rule is to promote the
efficiency of the entire justice system by requiring the parties to
advance
their claims at trial, where the underlying facts can best be
determined; this
rule is especially important in the military justice system because of
the
turnover of personnel and changing conditions at military confinement
facilities; the rationale behind waiver is to eliminate the expense to
the parties
and the public of rehearing an issue that could have been dealt with by
a
timely objection or motion at trial by the one party best positioned to
make
that happen – the party in need of relief; this principle is essential
to the
continued effectiveness of our heavily burdened trial and appellate
judicial
systems).
United
States v. Wellington, 58 MJ 420 (where the SJAR is
served
on the defense counsel and accused in accordance with RCM 1106(f)(1),
and the
defense fails to comment on any matter in the recommendation, RCM
1106(f)(6)
provides that any error is waived unless it rises to the level of plain
error).
United
States v. Simpson, 58 MJ 368 (the military judge
provided
instructions on the pertinent elements, and the issue before us is
whether the
military judge erred by not providing greater specificity or
amplification; any
such deficiency is waived by defense counsel's failure to object unless
the
instructions were so incomplete as to constitute plain error).
2002
United
States v. Quintanilla, 56 MJ 37 (of all the
grounds for
disqualification in RCM 902, only the appearance of bias may be waived,
RCM
902(a), after full disclosure of the basis on the record. RCM 902(e)).
(because the military judge did not ensure that the record reflected
a full
disclosure as required by RCM 902(e), court found it inappropriate to
conclude
on the present state of the record that the defense counsel waived the
appearance of bias disqualification in this case – specifically, the
record was
deficient in the following respects: (1) the military judge never
disclosed an ex
parte conversation with trial counsel about the timing of a
witness’s
testimony; (2) the military judge failed to provide a complete
description of
his out-of-court confrontations with a witness; (3) what description
there is
was not coherent and made it difficult to determine precisely what
happened
during the confrontations; and (4) the judge put the witness on the
stand and
questioned him in a manner that minimized the disclosure of information
about
the events).
United
States v. Butcher, 56 MJ 87 (Court of Criminal
Appeals
determined that appellant forfeited issue of unreasonable
multiplication of
charges by not raising it at trial, and Court of Appeals for the Armed
Forces
was not shown any specific circumstances that would lead it to conclude
that
lower court abused its considerable discretion).
United
States v. Barner, 56 MJ 131 (claims that offenses
should
be consolidated are forfeited by failure to make a timely motion to
dismiss,
but an appellant may overcome forfeiture by showing that the
specifications are
facially duplicative, a determination which is made on the basis of the
language of the specifications and the facts apparent on the face of
the
record).
United
States v. Bracey, No. 01-0408, 56 MJ 387 (if appellant wanted
to
introduce facts and obtain a ruling that the NJP and the court-martial
conviction were for the same offense, the time to do so was at trial,
not on
appeal).
United
States v. Simpson, 56 MJ 462 (failure to object to
an
instruction prior to commencement of deliberations waives the objection
in the
absence of plain error).
(to ensure that the answers given may only be used for impeachment
purposes,
the defense must request a specific instruction under Mil.R.Evid. 105;
the
failure to request such an instruction constitutes a waiver absent
plain
error).
United
States v. Chapa, 57 MJ 140 (any issue regarding
failure to
conduct the 48-hour review of pretrial confinement is waived by failure
to
specifically raise the issue at trial, and an asserted violation of one
provision of RCM 305 is not sufficient to preserve the issue whether
another
provision was violated).
(any issue founded on noncompliance with RCM 305 was waived where:
(1)
appellant did not assert that his restriction was tantamount to
confinement,
nor did he assert any violations of RCM 305; (2) the defense request
for relief
focused solely on Article 13; (3) defense counsel’s question about the
commander’s review of his decision to seize appellant’s personal
property was
insufficient to raise and preserve the issue because it addressed only
the
seizure of appellant’s property and not the restraints on his liberty,
and
because it was too general to alert the military judge or the
Government to a
complaint that formal review processes were not followed; (4) defense
counsel had
the opportunity to ask the commander whether the conditions on
appellant’s
liberty were reviewed in accordance with RCM 305(h) and (i), or to
present
other evidence of noncompliance, but he did not avail himself of that
opportunity).
2001
United
States v. Palmer, 55 MJ 205 (if evidence is
excluded at
trial because it is inadmissible for the purpose articulated by its
proponent,
the proponent cannot challenge the ruling on appeal on the ground that
the
evidence could have been admitted for another purpose).
United
States v. Quiroz, 55 MJ 334 (Court of Criminal
Appeals was
well within its authority under Article 66(c), UCMJ, to determine the
circumstances, if any, under which it would apply waiver or forfeiture
to a
claim of unreasonable multiplication of charges; Court of Criminal
Appeals did
not exceed its authority in concluding that it had authority to
consider all
claims of unreasonable multiplication of charges, even if raised for
the first
time on appeal, and to consider waiver only if an accused
affirmatively,
knowingly, and voluntarily relinquishes the issue at trial).
2000
United
States v. Heryford, 52 MJ 265 (ordinarily, an
unconditional guilty plea waives a multiplicity issue).
(double jeopardy claims, including those founded in multiplicity,
are waived
by failure to make a timely motion to dismiss, unless they rise to the
level of
plain error).
United
States v. Ramsey, 52 MJ 322 (where specifications
alleging
solicitation to distribute LSD and conspiracy to distribute LSD are not
facially duplicative, any issue of multiplicity was waived by
failure to
make a timely motion to dismiss and an unconditional guilty plea).
United
States v. Avery, 52 MJ 496 (waiver of fundamental
constitutional rights must be knowingly and intelligently rendered;
courts
indulge every reasonable presumption against such waiver and do not
presume
acquiescence in relinquishment of these rights; waiver of fundamental
rights
must be an affirmative action, not merely a failure to object).
(defense affirmatively waived any objection to government’s
nondisclosure of
report of victim’s prior rape allegation where: (1) defense made
no
motion for continuance; (2) defense made no motion to compel discovery;
(3)
defense counsel affirmatively stated at trial that the defense did not
intend
to go into the matter of the prior rape complaint; and, (4), after
receiving
the report after trial, defense did not raise the issue at a post-trial
Article
39(a) session).
United
States v. Grier, 53 MJ 30 (failure to object to an
instruction before the panel begins deliberation is waiver of the
objection in
the absence of plain error).
United
States v. Henry, 53 MJ 108 (requirement that
record of
trial be complete and substantially verbatim in order to support a
sentence
that includes a punitive discharge or confinement in excess of 6 months
is of
jurisdictional proportion and cannot be waived).
United
States v. Guthrie, 53 MJ 103 (absent plain error,
failure
to object to instructions as given or to request additional
instructions
forfeits the issue on appeal).
United States v. Davis, 53 MJ 202 (RCM 902(f)’s waiver rule applies only to the instructions listed in RCM 920(e)(7), but does not apply to required instructions such as those on reasonable doubt, elements of the offense, and affirmative defenses).
United
States v. Tittel, 53 MJ 313 (assuming that officer
who
gave order which the accused disobeyed was personally involved to the
extent
that he became an accuser, failure to forward the charges to the next
higher
level of command for disposition was nonjurisdictional error which was
waived
by appellant’s failure to raise the issue at trial).
United
States v. Fricke, 53 MJ 149 (absent affirmative
waiver of
issue of unlawful pretrial punishment at trial, violations of Article
13, UCMJ,
have been considered for the first time on appeal).
United
States v. Southwick, 53 MJ 412 (pretrial
punishment is not
waived by failure to raise the issue at trial unless there is an
affirmative,
fully developed waiver on the record).
(appellant’s tactical decision to present information about pretrial
punishment to the sentencing authority and the convening authority
rather than
moving for appropriate relief under RCM 906 was tantamount to an
affirmative
waiver in this case, because appellant made an election between two
available
alternatives).
United States v. Jenkins, 54 MJ 12 (failure to object to improper argument before the military judge begins to instruct on sentencing constitutes waiver of the objection; to overcome waiver, an appellant must demonstrate plain error – he must show there was error, that the error was plain or obvious, and that the error materially prejudiced his substantial rights).
United
States v. Scalarone, 54 MJ 114 (United States
v.
Huffman, 40 MJ 225 (CMA 1994), providing that an issue of
illegal
pretrial
confinement not raised at trial may be raised for the first time on
appeal, was
not shown to be either unworkable or badly reasoned, and therefore
would not be
overruled).
(failure to request sentence credit for unlawful pretrial punishment
or
illegal pretrial confinement at trial does not forfeit such a claim in
the
absence of plain error or waive such a claim forever).
United
States v. Tanksley, 54 MJ 169 (appellant’s
tactical
decision to take issue of conditions of pretrial confinement amounting
to
pretrial punishment to the members during sentencing rather than asking
the
military judge for appropriate relief was tantamount to a waiver of
this
issue).
United
States v. Browning, 54 MJ 1 (failure to object to
clarifying instructions on vicarious liability, given after appellant
objected
to initial instruction, waived any defect in the instructions in the
absence of
plain error).
(where military judge
makes a
preliminary ruling excluding evidence, but invites counsel to renew the
request
for the evidence at a later time, failure to renew the request at the
proper
time waives the issue in the absence of plain error).
(where defense sought to introduce evidence allegedly showing that
appellant
was framed by another individual, and where military judge made a
preliminary
ruling excluding evidence, but invited counsel to renew the request for
the
evidence at a later time, appellant did not preserve the issue by
requesting
the judge to reconsider the preliminary ruling; if, however, the issue
was
preserved, appellant failed to show how military judge abused his
discretion in
excluding the evidence where: (1) evidence was of minimal
relevance; (2)
defense failed to establish a link between the evidence in issue and a
co-actor’s alleged scheme to frame appellant; and (3) proffered
testimony fell
short of supporting the defense theory that appellant had been framed).
United
States v. Ruiz, 54 MJ 138 (objections to questions
asked
on cross-examination must be made at the time that they are asked).
(failure to make timely
objection to matters raised in argument will waive any issue on appeal
with
respect thereto in the absence of plain error).
1999
United
States v. Reist, 50 MJ 108 (any issue as to whether
trial
counsel is so determined to convict and punish an accused that he
became an
“accuser” is waived by that accused’s failure to raise the issue at
trial).
(failure to object to improper argument constitutes waiver of the
objection).
United
States v. McClain, 50 MJ 483 (where apparent conflict
arose
because of a difference of opinion at to strategy, the totality of the
circumstances indicated that appellant waived any conflict of interests
where: (1) appellant confirmed that he wanted counsel to continue
with
his case; (2) appellant indicated that he believed counsel had his best
interests at heart; (3) appellant acknowledge that his criticism of
counsel was
due to agitation; (4) the military judge correctly advised appellant
regarding
the options he had as to pleading, the forum, whether to accept a
pretrial
agreement, and whether to testify; and (5) appellant apologized for his
wrongful accusations against counsel during his unsworn statement).
United
States v. Smith, 50 MJ 451 (failure to object to an
instruction
or the omission of an instruction before the members close to
deliberate
constitutes a waiver of that objection absent plain error; waiver,
however,
must be established by affirmative action of counsel and not merely by
failure
to object to erroneous instructions or to request proper instructions).
(counsel’s statements were adequate to show purposeful decision to
agree to
military judge’s decision not to instruct on lesser-included offenses,
and thus
there was affirmative action by counsel to establish waiver of any
objection,
where: (1) counsel expressed that proposed instruction was close
to what
he desires; (2) counsel expressed agreement that instruction might
confuse the
members; (3) counsel did not object during Article 39(a) session; and
(4)
counsel did not object at close of instructions).
United
States v. Eggen, 51 MJ 159 (failure to object to
testimony of
expert on the basis that expert had exceeded the area of his expertise
waived
that issue for appeal).
United
States v. Richter, 51 MJ 213 (claim of unlawful command
influence in the preferral of charges was waived where appellant did
not raise
the issue at trial, any necessary evidence was available prior to
trial, and
appellant was not deterred from raising the issue at trial; defects in
the preferral
of charges are waived if not raised at trial, unless the failure to
raise the
issue is itself the result of unlawful command influence).
United
States v. Scott, 51 MJ 326 (appellant’s failure to
object to
expert’s testimony which was based in part on a psychiatric report of
an
examination done on appellant forfeited any objection, absent plain
error;
factors apparently considered by the Court in determining that
objection was
forfeited included: (1) no trial objection to the use of any
psychiatric
evaluations; (2) no trial objection based on privilege,
involuntariness, or any
other Fifth or Sixth Amendment grounds; (3) only defense objection at
trial was
lack of foundation based on fact that expert had not examined appellant
and
therefore could not render an opinion on his rehabilitative potential;
and (4)
no valid objection on Fifth and Sixth Amendment grounds even existed if
the
question of incompetence or lack of mental responsibility was raised by
the
defense and litigated).