TRIAL STAGES: Appeals: Harmless / Prejudicial Error

2022 (October Term)

United States v. Harrington, 83 M.J. 408 (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). 

(in this case, where the cumulative errors involved the denial of a requested instruction on maximum punishments for each offense and in permitting the unsworn victim statements to be delivered through a question-and-answer format with trial counsel, the government failed to meet its burden of demonstrating that the errors did not have a substantial influence on the adjudged sentence where (1) the government was able to argue to the panel that appellant should receive “at least” fifteen years of confinement for the involuntary manslaughter charge, even though the maximum punishment for involuntary manslaughter was only ten years, and appellant was denied the opportunity to explain to the members that the actual maximum penalty, and (2) trial counsel’s participation in the presentation of the unsworn victim statements blurred the important distinction between sentencing evidence presented by the government and nonevidentiary sentencing matters presented by the victim, especially when trial counsel was permitted to present the unsworn victim statements from the witness stand, a means of presenting the unsworn victim statements that mimicked the presentation of actual sworn testimony that the panel members would have experienced during the rest of the trial, raising the potential for confusion among the members about the status of the statements). 

United States v. Gilmet, 83 M.J. 398 (in this case, the government’s frustration of the continuance of a proper attorney-client relationship as the result of UCI arising from the superior officer of military defense counsel who implied that counsel’s representation of appellant would jeopardize counsel’s career materially prejudiced appellant’s substantial rights to counsel; although the government did not actively restrict counsel from representing appellant, its failure to address the conflict of interest created by the UCI prevented counsel from representing appellant; the government prejudiced appellant’s Article 38 rights by creating the perception in the minds of appellant’s defense counsel that their future in the service would be jeopardized if they continued to zealously advocate for appellant).

United States v. Cunningham, 83 M.J. 367 (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). 

(in this case, the error in allowing a victim impact statement in sentencing that included music and photographs was not prejudicial where (1) the government’s sentencing case was strong and weighed heavily in its favor; (2) the defense’s sentencing case only weighed slightly in favor of appellant; (3) the materiality of the evidence was slight where the matters presented were cumulative and provide no additional information than what was presented during sentencing testimony; and (4) the quality of the evidence weighed against appellant where there was nothing in the record to support that the military judge was substantially influenced by the emotional aspects of victim impact statement as it was presented).

2021 (October Term)

United States v. Sigrah, 82 M.J. 463 (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). 

(in this case, the military judge’s error in not striking the relevant testimony pursuant to RCM 914 had a substantial influence on the findings where (1) if the military judge had applied the correct remedy and stricken the testimonies of the victim and two witnesses, the government would have had a very weak case, (2) without these testimonies, appellant would have had a strong case, (3) the testimonies were material, and (4) the testimonies were of high quality). 

United States v. Palacios Cueto, 82 M.J. 323 (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). 

(in some cases, uncorrected statements by a prosecutor may lead to a violation of due process if the judge does not adequately correct them; but in this case, the military judge gave proper instructions so that any error that occurred was not constitutional in dimension, and accordingly, the harmlessness beyond a reasonable doubt standard did not apply). 

United States v. Edwards, 82 M.J. 239 (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). 

(a sentencing evidentiary 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). 

(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).   

(in this case, the admission in sentencing of a video as an unsworn victim statement prejudiced appellant where the materiality and quality of the evidence weighed in his favor; the government-produced video contained a slideshow of pictures accompanied by background music, including pictures of the victim as a child, throughout his life, and finally, of his gravestone; all but one of these pictures had not been admitted into evidence and would not have been seen by the panel members but for the military judge’s error in allowing the video to be shown and taken into the panel deliberations; the pictures, coupled with the background music, were no doubt intended to evoke a strong emotional response from the panel; seeing the victim’s father cry into the uniform of his deceased son was likely heart-wrenching; and it was the type of emotionally moving content that had the potential to influence the sentencing decision of the panel; finally, not only did the trial counsel play the video during sentencing, but she played part of the video -- the portion where the victim’s father cried into his son’s uniform -- again at the crescendo of her sentencing argument, immediately before asking the panel to adjudge the maximum possible sentence; trial counsel’s decision to replay the video in that moment was compelling evidence that the government believed the video was not only material and of high quality, but possibly the most powerful aspect of their sentencing case). 

2020 (October Term)

United States v. Brubaker-Escobar, 81 M.J. 471 (where an error is procedural and not jurisdiction, Article 59(a), UCMJ, provides that such procedural errors are tested for material prejudice to a substantial right to determine whether relief is warranted).

(in this case, where appellant was found guilty of at least one specification involving an offense that was committed before January 1, 2019 and appellant had been sentenced to a BCD and reduction to E-1, the convening authority erred by taking no action, but the convening authority’s error did not constitute plain error and was harmless where (1) appellant did not seek clemency from the convening authority, (2) under the Article 60, UCMJ, in effect prior to January 1, 2019, the convening authority lacked the power to grant clemency with respect to the BCD adjudged, and (3) although the convening authority in theory could have granted clemency with respect to the adjudged rank reduction, that relief would have been meaningless because appellant’s punitive discharge would have resulted in an automatic reduction to E-1). 

United States v. Thompson, 81 M.J. 391 (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. Long, 81 M.J. 362 (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). 

(in this case, although the non-propensity evidence presented was legally sufficient to support the finding of guilt that appellant raped his daughter, the use of propensity evidence from another charged offense (that appellant penetrated the mother with his penis) to prove the charged offense (that appellant penetrated his daughter with his penis) was not harmless beyond a reasonable doubt where the non-propensity evidence was not overwhelming; although this case involved some corroborating evidence, the factfinder had to make an inference that appellant penetrated the daughter with his penis as opposed to with some other object, and in making this inference, the factfinder may have been influenced by the mother’s testimony that appellant had sexually assaulted her in the same manner as her daughter, coupled with the government’s propensity argument; the evidence supporting a conviction was simply not overwhelming without use of the propensity evidence).

United States v. Steen, 81 M.J. 261 (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). 

(in this case, a military judge’s error in admitting propensity evidence in violation of MRE 404(b) was prejudicial where (1) the prosecution’s case was fairly weak where it turned on the testimony of a witness who had significant credibility issues, (2) the fact that appellant texted a friend a few days after the charged offense in an effort to obtain some marijuana was not of consequence in determining whether he distributed marijuana to a shipmate, and (3) this was clearly a case where the improper evidence produced new ammunition for the prosecution, significantly strengthened the prosecution’s case, and completely undermined appellant’s theory of the case; where the determining factor in the case was the relative credibility of a witness with transactional immunity and a favorable deal, inadmissible evidence that damaged the accused’s credibility and invited the members to assume facts not in evidence created a high bar for the government to show that the admission was harmless, and the government did not meet that bar here). 

United States v. Tyler, 81 M.J. 108 (although the military judge erred in his reasoning that the trial counsel could comment on the contents of the unsworn victim statement admitted under RCM 1001A (now 1001(c)) simply because they could have been admitted as substantive evidence under RCM 1001(b)(4), such error was harmless because either party may comment on properly admitted unsworn victim statements under RCM 1001A (now 1001(c))). 

United States v. Upshaw, 81 M.J. 71 (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). 

(in this case where the military judge erred in admitting charged conduct as MRE 413 propensity evidence, the government failed to meet its burden to show that error was harmless beyond a reasonable doubt where (1) the military judge’s instructions were clearly erroneous, including explicit reference to the preponderance of the evidence standard, (2) the government heavily relied upon the propensity evidence and referenced the instruction on the preponderance of the evidence standard, and (3) the evidence against appellant did not reach the level of overwhelming considering that there was no physical evidence to support the victim’s version of events). 

United States v. Ayala, 81 M.J. 25 (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, whether or not the military judge erred in admitting text messages from the victim to her mother the morning after the alleged sexual assault and the victim’s videotaped interview with law enforcement as prior consistent statements under MRE 801(d)(1)(B)(i) and MRE 801(d)(1)(B)(ii), appellant was not prejudiced by the military judge’s decision to admit the evidence where (1) the military judge redacted irrelevant portions from the text messages and required counsel for both sides to agree to redactions from the videotape that excluded irrelevant portions, (2) he did not give appellant a harsh sentence or provide any other indication he had been improperly swayed, (3) he convicted on only two of the three specifications and took care to except specific language in one of those remaining specifications, indicating he was paying close attention to the evidence he considered, (4) the government had a reasonably strong case, which included additional evidence that supported the victim’s version of events, (5) in the victim’s pretext emails with appellant, although appellant did not provide a full admission of guilt, he admitted that he knew at the very least that his conduct had been potentially unlawful, (6) appellant mentioned to another soldier that he may have made a mistake with victim, (7) the victim was an overall credible witness, (8) the defense case was not as strong, and (9) the text messages and videotape interview as admitted were not significant evidence because both repeated evidence that had come in through the victim’s testimony and therefore would already have been considered by the military judge). 

United States v. Norwood, 81 M.J. 12 (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). 

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

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (the violation of the right to choice of counsel is not subject to harmless error analysis; erroneous deprivation of the right to counsel of choice, withconsequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error; harmless error analysis under such circumstances would be a speculative inquiry into what might have occurred in an alternate universe; to compare two attorneys, one whose services were denied, would require a court to speculate upon what different choices or different intangibles might have been between the two).

United States v. Baas, 80 M.J. 114 (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). 

(in this case, even assuming that the military judge abused his discretion in admitting a laboratory test result based on an erroneous application of the Daubert (509 US 579 (1993)) factors, appellant was not prejudiced by the test’s admission where the government’s case was strong based on the comprehensive digital forensic evidence, the testimony of the government’s witnesses, and appellant’s own admissions, where the accused's case was weak and improbable, and where the test result was not so material or qualitatively significant as to effect the members' findings of guilt after the defense significantly diminished the materiality and reliability of the non-conclusive test result). 

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). 

(in this case, even if the military judge abused her discretion by permitting the unit’s SHARP representative to testify that when a person says no, it means to stop and walk away, any error in the admission of this evidence did not materially prejudice the substantial rights of appellant, where the government’s case was strong, the defense case in comparison was much weaker, the evidence contributed little to the government’s case because the SHARP training did not directly concern the defense of mistake of fact as to consent, the military judge correctly instructed the members on the law, the trial counsel did not unduly exploit the questionable evidence during his closing arguments but instead tailored his arguments in accordance with the military judge’s instructions on the law, and the panel could place the evidence in its proper perspective and not give it undue weight where the level of alertness of appellant during the training was in question and where the SHARP representative had difficulty himself in recalling the content of his presentation). 

United States v. Prasad, 80 M.J. 23 (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). 

(in this case, the government’s evidence that appellant touched his penis to the alleged victim’s groin over their clothing without her consent was not overwhelming, and thus the military judge’s error in permitting evidence of charged sexual offenses to be used as propensity evidence and by instructing the members accordingly was not harmless beyond a reasonable doubt, where the evidence at trial supported a mistake of fact as to consent defense, where appellant’s messages with the alleged victim corroborated his mistake of fact as to consent defense, where the government presented no corroborating forensic or physical evidence and no independent witness who could corroborate the alleged victim’s account of the incident, and the trial defense counsel effectively cross-examined the alleged victim and established a motive to fabricate). 

(in this case, the government’s evidence that appellant digitally penetrated the alleged victim’s vulva without her consent was not overwhelming, and thus the military judge’s error in permitting evidence of charged sexual offenses to be used as propensity evidence and by instructing the members accordingly was not harmless beyond a reasonable doubt, where the evidence of appellant’s messages with the alleged victim acknowledging the digital penetration and apologizing to the alleged victim did not unassailably establish his consciousness of guilt and corroborated his mistake of fact as to consent defense, where the alleged victim conceded at trial that appellant had stopped sexual contact as soon as he realized that she did not want to participate, and where the alleged victim had a motive to fabricate). 

(in this case, in light of the relative weakness of the government’s case at trial, the military judge’s confusing findings instructions that erroneously conflated the reasonable doubt standard and the propensity of the evidence standard and created a significant risk that the members applied an impermissibly low standard of proof, and the trial counsel’s erroneous and pervasive findings argument regarding the preponderance of the evidence standard and propensity evidence, the government failed to meet its burden of proving that the Hills (75 MJ 350 (CAAF 2016)) error was harmless beyond a reasonable doubt). 

United States v. Gonzalez, 79 M.J. 466 (in this case, where the CCA did not conduct a proper Article 66, UCMJ, review because the CCA’s sentence reassessment and sentence cap went beyond its statutory authority after setting aside one of the convictions and the sentence, appellant suffered material prejudice to a substantial right; furthermore, the CCA’s ultra vires action posed a substantial risk of interfering with the convening authority’s independent decision-making authority on remand by improperly influencing what the convening authority deemed to be an appropriate sentence; indeed, the record in this case squarely raised the specter of this improper influence because the convening authority was aware of the CCA’s putative sentence cap, and then approved that exact same sentence). 

United States v. Clark, 79 M.J. 449 (at the trial level, RCM 914(e) provides the military judge with two remedies for the government’s failure to deliver a statement: (1) order that the testimony of the witness be disregarded by the trier of fact; or (2) declare a mistrial if required in the interest of justice; however, when, as here, the military judge erred in denying a RCM 914 motion, an appellate court must determine whether this error prejudiced appellant). 

(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 an accused’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation). 

(in this case, where appellant was the subject of the law enforcement agents’ interrogation, and therefore was aware of the tone and general content of the agents’ comments, and where the agents were subject to cross-examination, appellant was not denied his right of confrontation; as a result, under these facts, the RCM 914 error in permitting the agents to testify despite the government’s inability to produce the recordings of their statements made during their interrogation of the accused infringed a procedural right rather than a fundamental constitutional right; therefore, the nonconstitutional error is tested for prejudice under Article 59(a), UCMJ). 

(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. Turner, 79 M.J. 401 (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). 

(even if the attempted premeditated murder specification failed to allege that the killing was unlawful by necessary implication, there simply is no prejudice to be found in this case, even when the stringent constitutional standard of harmlessness beyond a reasonable doubt is applied, where (1) in a pretrial motion, the defense counsel listed attempted murder as one of the charges against appellant, (2) the memo from the pretrial investigating officer listed attempted premeditated murder as one of the charges, (3) the defense counsel mentioned the charge of attempted premeditated murder in a pretrial request, in voir dire, and in his closing argument, (4) another offense listed on the charge sheet charged appellant with conspiring with his wife to murder the same victim, on that same date, at the same time and location, and with the same overt act alleged, and (5) in the findings instructions, the military judge explained to the members that appellant was charged with attempted premeditated murder and that the killing of a human being was unlawful when done without legal justification or excuse; in light of these facts, there is no basis to conclude that if the government had properly included the word unlawfully in the specification, appellant would have handled his defense at court-martial any differently, that the result of the court-martial would have been any different, or that appellant would have been provided any additional protection from double jeopardy).

United States v. Finch, 79 M.J. 389 (when an appellate court finds that a military judge erred in allowing evidence to be admitted, the government bears the burden of demonstrating that the admission of that erroneous evidence was harmless).

(for preserved nonconstitutional evidentiary errors, the test for prejudice is whether the error had a substantial influence on the findings). 

(in assessing prejudice for preserved nonconstitutional evidentiary errors, 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, the error in admitting a portion of a prior consistent statement that tended to bolster the alleged victim’s credibility and that pertained to an issue of central importance was not prejudicial where this portion of the statement constituted a mere passing reference in a very lengthy video, the defense pointed to no instances in the course of the trial where the government sought to exploit this portion of the statement, this portion of the statement was at best imprecise, and this portion of the statement was admitted without defense objection). 

2018 (October Term)

United States v. Frost, 79 M.J. 104 (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). 

(in this case, the government failed to meet its burden that the erroneous admission of the alleged victim’s initial statement as a prior consistent statement was harmless and did not have a substantial influence on the guilty findings where (1) the government’s case was weak, (2) the defense presented a fairly robust case on behalf of appellant, and (3) the materiality and quality of the improperly admitted evidence was likely substantial because it went to the heart of the matter in dispute, the credibility of the alleged victim). 

United States v. Voorhees, 79 M.J. 5 (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).

(in this case, although trial counsel’s misconduct amounted to grievous error, appellant failed to establish prejudice where appellant failed to demonstrate that trial counsel’s misconduct was so damaging as to call into question whether the members convicted appellant on the basis of the evidence alone; despite the severity of trial counsel’s misconduct and the absence of curative measures, several other factors militated against finding prejudice; first, defense counsel failed to object to any of the prosecutorial misconduct; second, the panel was comprised of senior officers who were uniquely situated to assess whether appellant’s conduct was unbecoming under Article 133, UCMJ, and trial counsel’s arguments were thus unlikely to impede these experienced officers’ ability to recognize conduct unbecoming and weigh the evidence against appellant; and third, the evidence that appellant violated Article 133, UCMJ, so clearly favored the government that appellant could not demonstrate prejudice).

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 both 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). 

(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). 

(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).

(in this case, a forfeited constitutional error in issuing an MRE 413 propensity instruction in a court-martial for two specifications of sexual assault that permitted the members to consider evidence that appellant had committed one sexual offense as evidence of his propensity or predisposition to engage in the other sexual offense violated appellant’s constitutional right to be presumed innocent until proven guilty, and that error was not harmless beyond a reasonable doubt where although the evidence against appellant was significant, (1) the presence of appellant’s DNA on the victim did not directly contradict the defense theories of the case that the victim either consented or that appellant acted under a reasonable mistake of fact as to consent, (2) appellant’s text message apologies did not unassailably establish his consciousness of guilt where they could also have been statements from someone who knew he had acted inappropriately, but not criminally, and (3) the fact that appellant was acquitted of one of the two specifications of sexual assault made it less clear that the bootstrapping effect of the instruction did not tip the balance with respect to the members’ ultimate determination regarding the other sexual assault specification). 

United States v. Hamilton, 78 M.J. 335 (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). 

(in this case, the military judge’s error in admitting unsworn victim impact statements that did not comply with RCM 1001A (now incorporated into RCM 1001(c)) did not have a substantial impact on the adjudged sentence and there was no prejudice to the substantial rights of the accused under Article 59, UCMJ; here, the case presented by the government at sentencing was strong and the appellant’s sentencing case was relatively weak; additionally, while the content of the victim impact statements was material for sentencing purposes, it lacked the quality necessary to affect appellant’s sentence; first, this was a military judge alone trial and the military judge is presumed to know what portions of argument are impermissible, absent clear evidence to the contrary; while the military judge erroneously allowed the government to introduce the victim impact statements, he specifically reiterated that he would give them only the weight they deserve and there is no indication in the record that the military judge gave significant weight to the impermissible aspects of the statements; second, irrespective of whether the statements were admitted, the government’s argument related to revictimization through the continued circulation of pornographic images was permissible, as it is settled law that appellant’s conduct in possessing and distributing child pornography sustained and aggravated the victimization of the child victims; finally, while appellant faced a maximum of thirty years of confinement, he agreed to a confinement cap of five years and he was sentenced to just two years).

United States v. Kohlbek, 78 M.J. 326 (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 a 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).

(in this case, the military judge’s error in excluding evidence about the circumstances of the polygraph examination did not have a substantial influence on the findings where the government’s case was strong, with the victim providing detailed testimony and material evidence of appellant’s actions; the victim’s nearly contemporaneous reports of the incident to other individuals provided ample evidence that appellant acted with specific intent to gratify his sexual desires despite appellant’s assertion that he was too intoxicated to form the necessary specific intent; even assuming the trier of fact believed that the facts and circumstances of appellant’s polygraph examination explained the reasons for his confession, it would only call into question the reliability of his confession; it would not negate or otherwise disprove the remaining evidence supporting appellant’s specific intent; even under the higher beyond a reasonable doubt standard, there was no prejudice).    

United States v. Hale, 78 M.J. 268 (in this case, the military judge instructed the members on the elements of the charged offenses, including the “on or about” language, and the defense counsel did not object to the instructions at the time they were given; regardless of whether the military judge erred by including the “on or about” language in the instructions to the members, appellant failed to carry his burden to prove that any material prejudice to his substantial rights resulted from such instructions, where (1) appellant did not established that the military judge’s instructions in any way impacted the members’ decision- making process on the offenses, (2) the charges involved concrete acts occurring on concrete dates, and (3) appellant provided no reason to suspect the members did not adhere to the admitted evidence when reaching their verdict).

United States v. Bodoh, 78 M.J. 231 (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). 

(in this case involving an allegation of sexual assault, where trial counsel erred when questioning appellant by asking a series of clearly impermissible questions founded on the false premise that a person who is intoxicated is inherently incapable of consenting to sexual acts, the military judge fully cured trial counsel’s error by (1) sustaining the defense’s objection to the questioning, (2) ruling that trial counsel had misstated the law, and (3) properly summarizing the law by stating that there was nothing that says a person cannot have sex with somebody who has taken alcohol or a cough and flu medication; in light of the military judge’s curative measures, appellant failed to establish that trial counsel’s improper questioning was prejudicial). 

(in this case involving an allegation of sexual assault, appellant was not prejudiced by trial counsel’s argument on findings that the members had learned during SHARP training that people on drugs and alcohol are more vulnerable to assault; the observation that people on drugs and alcohol are more vulnerable to assault was an unremarkable observation that is based on common knowledge).

2017 (October Term)

United States v. Jones, 78 M.J. 37 (when a constitutional issue is reviewed for plain error, the prejudice analysis considers whether the error was harmless beyond a reasonable doubt).

(in this case, the erroneous admission of a hearsay statement made by a co-conspirator to a CID agent that also violated the Confrontation Clause was harmless beyond a reasonable doubt where the statement was not necessary to prove the larceny specifications and the statement was also not necessary to corroborate appellant’s admissions where those admissions were corroborated by other independent evidence; because the more stringent harmless beyond a reasonable doubt standard subsumed the harmlessness standard for nonconstitutional error, appellant was also not materially prejudiced by the MRE 802 hearsay error).

United States v. Armstrong, 77 M.J. 465 (in cases involving incorrect instructions regarding lesser included offenses, prejudice can be caused by not having notice as to the offense that must be defended against). 

(in this case, although it was a clear or obvious error for the military judge to have instructed the members that assault consummated by a battery was a lesser included offense of abusive sexual contact, appellant was not materially prejudiced where the record shows that appellant requested instructions before the presentation of evidence regarding defenses to assault consummated by a battery, and one of these instructions concerned unlawful touching, thus addressing the requirement of unlawful force; therefore, appellant had notice of how he needed to defend himself at the start of the case, and he suffered no material prejudice resulting from the error where he did not object to the lesser included offense instruction). 

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).    

(in this case, the use of charged offenses as propensity evidence under MRE 413 and an accompanying propensity instruction prejudiced an accused’s constitutional right to be presumed innocent until proven guilty and was constitutional error; furthermore, with one exception, the error was not harmless beyond a reasonable doubt and prejudiced appellant’s substantial rights where appellant’s convictions were not immune from the erroneous propensity instruction that explicitly referred to the preponderance of the evidence standard and that did not just flow in one direction; the one exception is where the evidence, supported by the corroborating evidence, was so overwhelming that the erroneous propensity instruction did not contribute to the verdict by tipping the balance in the members’ ultimate determination). 

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).   

United States v. Barker, 77 M.J. 377 (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).

(in this military judge-alone case, the error in admitting victim impact statements did not substantially influence the sentence, where (1) the government's case was exceptionally strong and appellant's guilt was laid out in vivid detail in the stipulation of fact, (2) appellant faced confinement for twenty years, had a PTA to cap confinement at four years, and only received two and a half years; (3) the case was tried before a military judge, who is presumed to know the law; and (4) many of the themes and harms contained in the improperly admitted letters are well known to the law, and thus are presumed to have been known by the military judge).

United States v. Robinson, 77 M.J. 294 (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).

United States v. Katso, 77 M.J. 247 (even assuming arguendothat the government should have held a continued confinement hearing sua sponte, within seven days or otherwise, after the CCA set aside the accused’s conviction and sentence to confinement but the government certified the case to the CAAF, the accused suffered no prejudice from its failure to do so; a continued confinement hearing was held when the accused requested it, and that hearing concluded that the accused was not entitled to be released; thus, in the end, because the accused’s sentence was effectively restored by the CAAF, the time the accused served between certification and the confinement hearing was in accordance with his adjudged and approved sentence).

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). 

(in this case, appellant was not prejudiced by the admission of his invocation of his right to counsel at trial; that is, even if the members were aware of the invocation, the inclusion of it was unimportant in relation to everything else the members considered in the case, where (1) the invocation played a minor part in appellant’s trial, being briefly mentioned once on the second day of a six day trial (2) the members did not see appellant’s invocation in a vacuum, having heard the military judge instruct them not to make an adverse inference from appellant’s invocation and heard appellant’s continuing proclamations of his innocence throughout the interrogation after the invocation, (3) the record presented no evidence to rebut the presumption that the members followed the military judge’s instruction, and (4) the government had a strong case against appellant, to include the victim’s testimony and supporting DNA evidence). 

United States v. Jerkins, 77 M.J. 225 (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). 

(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). 

(in this case, the government failed to establish that the error in admitting into evidence during sentencing rebuttal a general officer memorandum of reprimand indicating that appellant was unfit for further service was harmless, let alone harmless beyond a reasonable doubt, where appellant had served in the Army for nineteen years, volunteered to deploy to a combat zone in the Middle East, was awarded the General Douglas MacArthur Leadership Award for his outstanding care for wounded warriors, was pending a medical evaluation board for injuries sustained during combat in Iraq, and was not afforded the full opportunity to submit a rebuttal to the reprimand, and where this case was tried before members and the military judge admitted the reprimand over the defense’s MRE 403 objection without providing any real explanation of her ruling on the record). 

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). 

(in this case, any error by the military judge in failing to inspect and order the disclosure of the mental health records of two government witnesses was harmless beyond a reasonable doubt where appellant was able to fully cross-examine the witnesses on their credibility and motive to misrepresent appellant’s conduct; under the circumstances, there was no reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different).

United States v. Riesbeck, 77 M.J. 154 (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 (in this case, in the absence of any prejudice, the military judge did not abuse his discretion in declining to declare a mistrial based on misconduct by the trial counsel for eliciting inadmissible testimony and offering improper argument where the military judge properly sustained defense objections, warned trial counsel about his behavior, and issued several curative instructions; trial counsel’s conduct was not so prejudicial that the curative instructions were inadequate, and there was simply no evidence here that the members failed to comply with the military judge’s curative instructions; absent contrary indications, it may be presumed that the panel followed the military judge’s instructions; furthermore, the mixed findings and very lenient sentence indicated that the members were capable of and did put aside the inadmissible testimony and improper argument; in light of the longstanding view of mistrials as an extraordinary remedy and the directive that military judges explore other remedial action first, the military judge here was not required to declare a mistrial). 

United States v. Guardado, 77 M.J. 90 (an erroneous propensity instruction was not harmless even though the members acquitted the accused of three of four specifications for which the military judge allowed the erroneous instruction; it simply does not follow that because an individual was acquitted of a specification that evidence of that specification was not used as improper propensity evidence and therefore had no effect on the verdict; in this case, it is conceivable that the panel found that appellant committed the other three charged offenses by a preponderance of the evidence but not beyond a reasonable doubt; while not persuaded of appellant’s guilt to the point of convicting him, members could still have believed that it was more likely than not that appellant committed those other offenses and used that evidence for propensity purposes to convict him of the fourth offense, thus violating appellant’s presumption of innocence; furthermore, in view of the fact that the evidence was not overwhelming on the fourth offense and that there was a lack of supporting evidence for the victim’s testimony, an appellate court could not be assured that the erroneous instruction did not contribute to the verdict and that appellant was convicted on the strength of the evidence alone). 

2016 (October Term)

United States v. Ramos, 76 M.J. 372 (when an Article 31(b), UCMJ, violation occurs in a particular case, the appropriate test for prejudice depends upon the facts and circumstances presented). 

(in this case, when appellant’s unwarned statements were the sole predicate of his Article 107 conviction, the use of his unwarned statements prejudiced his substantial rights and the specification must be dismissed). 

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). 

(in this case, with respect to all of the alleged offenses, the government’s failure to disclose to the defense that government witnesses were confidential informants was harmless beyond a reasonable doubt with respect to the findings and sentence where the testimony of the informants was either relatively unimportant and cumulative with that of other witnesses or was corroborated by other witnesses and in view of appellant’s admissions).    

United States v. Reese, 76 M.J. 297 (RCM 603(d) provides that changes or amendments to charges or specifications other than minor changes may not be made over the objection of the accused unless the charge or specification affected is preferred anew; the plain language of RCM 603(d) does not discuss prejudice; rather, if a change is major, it provides that such change cannot be made over defense objection unless the charge is preferred anew; the practical effect is that if a change is major and the defense objects, the charge has no legal basis and the court-martial may not consider it unless and until it is preferred anew, and subsequently referred; to the extent that past precedent has required a separate showing of prejudice under these circumstances, it is overruled; absent preferral anew and a second referral there is no charge to which jurisdiction can attach, and Article 59(a), UCMJ, is not implicated). 

United States v. Hendrix, 76 M.J. 283 (the erroneous admission of evidence is prejudicial when it has a substantial influence on the members’ findings; 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). 

(in this case, the admission of the voice-identification evidence substantially influenced the members’ findings and thus had a prejudicial effect where it had no probative value and only served to bolster the alleged victim’s testimony in an otherwise weak case). 

United States v. Feliciano, 76 M.J. 237 (generally, a superfluous, exculpatory instruction that does not shift the burden of proof is harmless, even if the instruction is otherwise erroneous). 

(where consent was not evidenced in the record, any possible error resulting from the military judge instructing on the mistake of fact as to consent defense was harmless beyond a reasonable doubt; the instruction was superfluous and did not shift the burden of proof). 

United States v. Hukill, 76 M.J. 219 (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). 

(the presumption that the military judge knows and follows the law is only as valid as the law itself; the presumption cannot rectify a legal error or render it harmless).

(in this case, the military judge’s error in using charged sexual misconduct as propensity evidence under MRE 413 for other charged sexual misconduct in the same case was not harmless beyond a reasonable doubt where (1) the military judge based his verdict on the accused’s propensity to sexually assault women, and (2) the government’s case was based entirely on the testimony of the victims and the alleged confession from the accused to his fiancée that he had been unfaithful, all of which the accused denied).  

United States v. Fetrow, 76 M.J. 181 (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).

(the erroneous admission as propensity evidence of two acts of indecent liberties committed by the accused on his biological daughter had a substantial influence on the members’ verdict and was not harmless at a GCM in which the accused was charged with molesting his stepdaughters; his biological daughter gave emotional and heartfelt testimony regarding an incident in which she saw the accused having sex with a woman and an incident in which saw the accused’s penis, and the testimony served no purpose other than to improperly suggest that the accused was adulterer with no regard for the psychological welfare of his young child or that he was a poor parent with an odd proclivity for allowing his children to view him unclothed).

United States v. Lopez, 76 M.J. 151 (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). 

(in prosecution of appellant for allegedly raping his wife, any error in the admission of testimony from his stepdaughter that he had probably committed the alleged rape did not result in material prejudice where the government’s very strong case that included the wife’s direct testimony to the event, physical evidence, including marks of a struggle and appellant’s DNA inside of his wife, his two stepchildren’s testimony that they heard “sad noises” and “get off me” coming from their mother’s bedroom, his wife’s immediate reporting of the assault, and her searches for “spousal rape” on the Internet the next day).  

(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). 

(in prosecution of appellant for allegedly committing indecent liberties with a child by introducing his stepson to pornography, the erroneous admission of what was in effect human lie detector testimony by appellant’s wife was materially prejudicial where the error may well have transformed appellant’s noncommittal apology into a material admission of guilt and a validation of the stepson’s story, as interpreted by the wife). 

United States v. Bowen, 76 M.J. 83 (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). 

(in this case, the erroneous admission into evidence of the victim’s nodding of her head in response to a question from a law enforcement officer asking her whether her husband beat her was not harmless where the record demonstrated a closely contested court-martial, the outcome of which turned on the members’ resolution of who caused the victim’s injuries; the evidence was likely a material to the members’ resolution of this issue, especially where the trial counsel emphasized it during his closing argument and the government’s key witness had apparent motives to lie; as such, the erroneous admission of the victim’s head nod identifying appellant as her attacker materially prejudiced his substantial rights). 

United States v. Sewell, 76 M.J. 14 (three factors guide an appellate court’s determination of the prejudicial effect of improper argument: (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the convictions; the third factor may so clearly favor the government that the appellant cannot demonstrate prejudice). 

(in this case, even assuming clear or obvious error with respect to some of trial counsel’s statements during argument in which he allegedly made improper propensity arguments, vouched for witness credibility, referenced facts not in evidence, and inflamed the passions of the panel, there was no prejudice given the weight of the evidence supporting the convictions and given the fact that appellant was acquitted of all offenses for which there was no corroborating evidence). 

United States v. Pabelona, 76 M.J. 9 (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). 

(in this case, even if certain of trial counsel’s comments in closing argument on the merits and in argument as to the sentence were improper, there was no evidence that the trial counsel’s arguments resulted in material prejudice to any of appellant’s substantial rights, where (1) the weight of the evidence supporting the conviction was strong enough to establish lack of prejudice in and of itself, (2) appellant was convicted on only two out of four charges, indicating the members were able to weigh the evidence offered at trial and make an independent assessment of appellant’s guilt or innocence with regard to each separate specification, and (3) his sentence was significantly less than that requested by the government). 

United States v. Gomez, 76 M.J. 76 (in order to establish prejudice from an evidentiary ruling in sentencing, appellant must demonstrate that the witness’s testimony substantially influenced the adjudged sentence; and prejudice from an erroneous evidentiary ruling is evaluated by an appellate court 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). 

2015 (September Term)

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. 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). 

(in this case, the military judge’s instructional error on the provoking words offense was not harmless beyond a reasonable doubt where given the importance of the circumstances surrounding appellant’s speech, the distinction between the average person and reasonable person under the circumstances standards was critical; central to his defense, appellant’s counsel sought to argue that the elements of the offense were not met due to the circumstances of the speech, to include both the profession and training of the listeners and the fact that appellant was restrained; in contrast, trial counsel effectively told the members that none of those circumstances mattered and that it was how the average person would react that was at issue; in instructing the panel to employ an average person standard, the military judge’s instruction directly bolstered the trial counsel’s erroneous statement of the law, which de-emphasized any consideration of the circumstances; the deficient instruction thus essentially undercut the defense theory and may very well have contributed to the finding of guilty, thereby prejudicing the substantial rights of the accused; thus, it cannot be said that the instruction did not mislead the members and contribute to appellant’s conviction for provoking speech). 

United States v. Hoffmann, 75 M.J. 120 (where a military judge abuses her discretion by erroneously admitting evidence on the merits, an appellate court may not set aside the finding of the court-martial unless the error materially prejudices the substantial rights of the accused). 

(where the error by the military judge in admitting evidence on the merits was of constitutional dimension, the error is harmless only 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; to say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record). 

(in this case, as the only evidence supporting appellant’s conviction for the wrongful possession of child pornography was the result of an unlawful seizure and an unlawful search, it clearly contributed to the court member’s findings; in addition, although the military judge instructed the court members that each offense must stand on its own, during his closing and rebuttal arguments on findings, the trial counsel argued that all of the offenses, including the wrongful possession of child pornography, were manifestations of appellant’s character as that of a predator, sexually attracted to young boys and that the strongest evidence of this purported character trait was the child pornography; under such circumstances, the government failed to establish that the admission of those images was unimportant in relation to the other evidence the panel heard on the remaining offenses).

United States v. Riggins, 75 M.J. 78 (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). 

(in this case, where appellant’s conviction for assault consummated by a battery violated his 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, the government failed to meet its burden of establishing that the error was harmless beyond a reasonable doubt; the specifications at issue charging sexual assault and abusive sexual contact did not mention lack of consent, the government did not raise the issue of lack of consent in the course of the trial but instead relied on the theory that the sexual activity resulted from the alleged victim being in fear of appellant affecting her military career, appellant tailored his defense to rebut that theory, and the military judge found appellant guilty based on a specific rationale neither advanced by the government nor defended by appellant - that the alleged victim was pressured in an unrelenting manner by a servicemember of superior rank into having sex). 

United States v. Bess, 75 M.J. 70 (in this case, the military judges’ error in precluding appellant from challenging the evidentiary weight of the muster reports provided to the court members after they requested this evidence during their deliberations was not harmless beyond a reasonable doubt where one of the main issues at trial was the identity of the alleged perpetrator and challenging the evidentiary weight of the muster reports could have shaken the government’s case with respect to the identity of appellant as the perpetrator; given the interest that the reports clearly provoked among the members (asking for the reports during deliberations after the defense counsel in closing argument had emphasized the government’s failure to introduce the reports as a significant weakness in its case), and the timing of the verdict (a half-hour after receiving the reports and nearly six hours after deliberations had begun), it simply cannot be said that that the error did not contribute to the verdict beyond a reasonable doubt; as such, the denial of appellant’s right to present a complete defense was not harmless beyond a reasonable doubt).  

2014 (September Term)

United States v. Sullivan, 74 M.J. 448 (in a general court-martial of an 0-6 appellant for wrongful use of cocaine, although the convening authority’s categorical exclusion of flag officers from the member pool violated Article 25, UCMJ, there was no appearance of an unfair panel, where (1) appellant was provided with a venire of fellow senior captains who were fully qualified to sit on a court-martial panel, (2) there was no basis to conclude that the convening authority selected the members on any factors other than their age, education, training, experience, length of service, and judicial temperament, (3) the record provided no indication that these panel members failed to fully, carefully, and appropriately consider appellant’s case in arriving at a verdict and sentence, and (4) the convening authority’s motivation in excluding flag officers from this case was not to stack the panel against appellant, but rather the convening authority relied on his experience in concluding that the flag officers would not be available to actually sit on the panel and hear the case). 

(in a general court-martial of an 0-6 appellant for wrongful use of cocaine, the government met its burden of establishing that the categorical exclusion of flag officers from the venire panel was harmless, where (1) the convening authority’s motivation in excluding the flag officers was based on his belief that they would be unavailable to actually serve on the court-martial, (2) the selected members, all of whom were captains, met the Article 25, UCMJ, criteria, and (3) the members’ actions in the case demonstrated that they were fair and unbiased - the members stated that they would be impartial during voir dire; they were active participants throughout the trial who posed unbiased questions during the course of the trial; they deliberated over the course of three days before rendering a verdict, which included an acquittal of one charge; and they imposed a lenient sentence). 

United States v. Akbar, 74 M.J. 364 (even assuming that the admission of appellant’s confession was error, it was harmless beyond a reasonable doubt; the admission of a confession is prejudicial if, after reviewing the entire record of an individual case, there is a reasonable possibility that the evidence complained of might have contributed to the conviction; appellant’s confession presents no such reasonable possibility because Appellant did not contest his identity as the attacker at the court-martial; also, there was overwhelming evidence that appellant was responsible for the attack, including appellant’s fingerprints on the generator switch, the rounds from appellant’s weapon matched the rounds used in the attack, and appellant’s possession of grenades when apprehended). 

(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). 

(in a capital case, an aggravating factor that renders an accused eligible for death is the functional equivalent of an element of a greater offense; the Fifth Amendment’s due process clause and the Sixth Amendment’s notice and jury trial guarantees require any fact that increases the maximum penalty for a crime to be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt; in this case, the government did not allege the aggravating factors on the charge sheet and only provided written notice of them prior to arraignment; assuming that the government must allege in the charge sheet the aggravating factors as a functional equivalent of an element, and further assuming that the government erred in failing to allege the aggravating factors on the charge sheet in the instant case, the error was harmless beyond a reasonable doubt where (1) the fundamental essence of the aggravating factor ultimately pursued by the government, multiple murder (RCM 1004(c)(7)(J)), already appeared on the charge sheet as Appellant was charged in separate specifications with murdering two servicemembers and the investigating officer recommended that both specifications go forward, (2) the government demonstrated that appellant’s trial defense counsel could not articulate how he would have altered his strategy at the Article 32, UCMJ, hearing had the charge sheet specifically alleged the aggravating factor, and (3) appellant received actual notice of the aggravating factors prior to his arraignment pursuant to RCM 1004(c)(1) allowing him ample opportunity to prepare for the aggravating factor). 

(in this case, even if the CCA erred by failing to perform a proportionality review of the death sentence, any error was harmless where the capital sentence was shown to be both appropriate and proportional for appellant’s actions in throwing grenades into three tents of fellow servicemembers and then shooting servicemembers with his M-4 rifle, killing two and wounding fourteen).  

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). 

(even if an appellant establishes a violation of Article 25, UCMJ, there exists no remedy for that violation if the government shows it was harmless).

(in this case, where an instruction on nominating court-martial members by the convening authority erroneously restricted the personnel that could be nominated by his subordinate commands to officers in the grades of 0-5 and below and to enlisted members in the grades of E-7, E-8, and E-9 (ie, the subordinate commands could not nominate personnel who were 0-6 and above or E-6 and below), where all of the convening authority’s own staff was subject to nomination as potential court-martial members, where prior to the convening authority’s selection of panel members, his FJA provided him with a draft convening order that detailed potential members to serve on the panel, but also advised him that he could choose the panel members recommended or choose anyone else within his claimancy that he deemed best qualified, and where the convening authority approved the convening order as drafted, which detailed two 0-5s, three 0-4s, one E-8, and six E-7s to the court-martial, the government met the standards under both Bartlett and Kirkland; under Bartlett, the government showed that the convening authority used the instruction without an improper motive; in a post-trial affidavit, the convening authority stated that in selecting members for courts-martial, it was not his intent to systematically exclude anyone on the basis of rank alone and the record supported that assertion; both the FJA and the convening authority acknowledged the convening authority was aware he could select anyone he chose from within his command, including members of his staff, as long as they met the Article 25, UCMJ, criteria; also, the convening authority had each member of his staff, regardless of rank, fill out a court-martial member questionnaire upon arriving on station; in addition, because a stated purpose of the convening authority’s nomination instruction was to supplement the pool of potential panel members from the convening authority’s staff, and because the convening authority did not utilize the instruction to systematically exclude specific ranks from his consideration, the instruction was not used with an improper motive; finally, under Kirkland, there was no unresolved appearance in this case that potentially qualified court members were excluded; although the nomination instruction by its own terms excluded certain categories of eligible court members, that exclusion only applied to potential members from the subordinate commands, not to potential members from the convening authority’s staff; therefore, the member selection process utilized by the convening authority met the Bartlett criteria, and under Kirkland, it did not leave an unresolved appearance that potentially qualified court members were excluded from consideration; Appellant was not prejudiced by the selection process error caused by the nomination instruction that impermissibly excluded servicemembers from the member selection process by virtue of their rank). 

United States v. Torres, 74 M.J. 154 (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).  

(in this case, the military judge’s instructional error in failing to provide a defense-requested instruction on findings that appellant could not be held criminally liable for his actions unless they are voluntary was harmless beyond a reasonable doubt where (1) the government’s expert witness, a neurologist, testified that: (a) post-seizure violence is rare among people who have epilepsy, (b) those individuals who do engage in post-seizure violence do it every time, but appellant did not have a history of post-seizure violence, (c) in those rare instances when post-seizure violence does occur, it typically happens in the immediate post-seizure state rather than twenty to thirty minutes from the beginning of the post-seizure state as posited in the instant case, and (d) appellant’s version of events where he engaged in post-seizure violence, then got up, got dressed, talked to a guest in his home, and then regressed into a somnolent state again did not add up in the expert’s mind, (2) the second sanity board conducted in this case found that appellant was not experiencing a post-seizure state during the alleged assault, but rather was suffering from an alcohol-induced mood disorder and partner relationship problems, (3) the military judge granted the trial defense counsel broad latitude to introduce evidence and to argue before the panel that: (a) appellant’s choking of his wife was the direct result of his altered state of consciousness brought on by an epileptic seizure, (b) this altered state of consciousness caused appellant’s conduct to be involuntary, and (c) because appellant’s conduct was involuntary, appellant could not be held criminally responsible for the assault, and (4) when the defense’s own expert witness testified on cross-examination, he agreed that it was highly improbable that appellant assaulted his wife due to the effects of being in a post-seizure state). 

United States v. Norman, 74 M.J. 144 (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 Kerr (51 MJ 401 (CAAF 1999) 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 case, the military judge’s error in admitting the testimony of a Marine MP who testified that in his opinion, any Marine parent who endangers the life of a child by culpable negligence would bring discredit upon the Marine Corps was harmless; in applying the four-factor Kerr (51 MJ 401 (CAAF 1999)) harmless error test, three of the four Kerr factors weighed in the government’s favor: the MP’s testimony was not qualitatively significant by virtue of being conclusory and unhelpful to the trier of fact, it was not material to the government’s overall case, and the government had a strong case notwithstanding this testimony; the MP’s testimony only supported one element of the charged conduct which was established by other evidence at trial).  

United States v. Adams, 74 M.J. 137 (because the confession was the government’s key piece of evidence, the admission of the uncorroborated essential facts was prejudicial to appellant). 

United States v. Piolunek, 74 M.J. 107 (whether Stromberg (283 US 359, 368-70 (1931)) error is susceptible to a harmless error analysis is a question left for another day; however, if in fact a conviction rests on an unconstitutional statute or legal theory, it is at best questionable why or how the weight of the evidence overcomes that constitutional infirmity). 

United States v. Gilbreath, 74 M.J. 11 (the question of whether appellant was prejudiced by an erroneous ruling by the military judge on a motion to suppress incriminatory statements made by appellant turns on (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, where the government’s case derived from appellant’s initial admission, where there was no other parallel chain of evidence, and where a confession is like no other evidence and is probably the most probative and damaging evidence that can be admitted against him, there is no question that appellant’s confession constituted strong, material evidence offered against him; under these circumstances, the military judge’s error in failing to suppress appellant’s statements materially prejudiced his substantial rights under Article 59(a), UCMJ).

2013 (September Term)

United States v. MacDonald, 73 M.J. 426 (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). 

(the military judge’s error in failing to give an involuntary intoxication instruction was not harmless beyond a reasonable doubt even though the judge instructed on the defense of lack of mental responsibility and partial mental responsibility; without an involuntary intoxication instruction, it is possible that the members may have concluded that they could not acquit appellant without first finding a mental disease or defect; it is similarly possible that the members did not consider, as a separate matter, whether involuntary intoxication with respect to Chantix may have prevented appellant from appreciating the nature and quality or wrongfulness of his acts). 

(the evidence of appellant’s ability to form the necessary intent to kill was not so overwhelming that appellant could not be prejudiced by the military judge’s error in failing to give an instruction on involuntary intoxication; although there was evidence that appellant planned his attack and attempted to escape thereafter, there were two reasons why this evidence was not so overwhelming as to render the instruction harmless beyond a reasonable doubt; first, the evidence did not account for the defense expert testimony that the Chantix may have affected appellant’s mental state and capacity at the time of the incident such that he was under the influence of Chantix; and second, where the evidence could support multiple arguments, appellant was entitled to have the trier of fact, and not an appellate court, hear and test the credibility of the evidence based on proper instructions). 

United States v. Treat, 73 M.J. 331 (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). 

(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). 

(in this case, where appellant was charged with missing the movement of Flight TA4B702 but after a contested trial was found guilty by exceptions and substitutions of missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan, the material variance in the amended offense did not prejudice appellant and was not fatal, where his defense was squarely focused on the assertion that he was prevented from moving with his unit because he was kidnapped, his defense counsel did not claim in any manner that appellant was not present on the date of his unit’s movement because he was unaware of the specific aircraft he was supposed to be on or the unit he was supposed to move with, and right from the beginning of the case, appellant channeled his efforts into convincing first the investigators and then the court-martial that, as stated by defense counsel in her opening statement, appellant did not intend to miss the movement, but he was prevented from going with his unit because of what had happened to him; while defense counsel did mention the lack of evidence of the flight number in her closing argument, she did not channel her efforts into disproving the Flight TA4B702 element; furthermore, despite citing the lack of proof that it was specifically Flight TA4B702 that appellant missed, defense counsel did not move pursuant to RCM 917 for a finding of not guilty on that particular charge; finally, the defense has not identified any different trial strategy it might have employed if appellant originally had been charged with missing the flight dedicated to transport Main Body 1 of 54th Engineer Battalion from Ramstein Air Base, Germany, to Manas Air Base, Kyrgyzstan; all indications are that appellant’s defense of impossibility due to kidnapping would have remained precisely the same whether or not he was charged per the original specification or per the exceptions and substitutions, and there is no reasonable possibility that the verdict in this case would have been any different; accordingly, appellant was not denied the opportunity to defend against the charge on which he was convicted). 

United States v. Elespuru, 73 M.J. 326 (although the wrongful sexual contact specification was set aside in this case because it was charged in the alternative for exigencies of proof, appellant remains convicted of abusive sexual contact, a crime carrying a higher sentence; because the military judge merged these specifications for sentencing purposes, under the facts of this case, appellant was not prejudiced with regard to his sentence).    

United States v. Flesher, 73 M.J. 303 (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). 

(in this case, the central question at trial was whether the alleged victim consented to the sexual intercourse or whether appellant forced himself on her or took advantage of her drunken state; the government’s evidence on this issue consisted of the alleged victim’s clear testimony that she was drunk, that she did not invite appellant to her room, that she did not consent to have sex with him, and that she repeatedly told him “no;” she also testified that although she struggled with appellant, she did not fight back more fiercely or call out for help because she was drunk, confused, scared, and embarrassed and that she did not report the incident until she telephoned a friend thirty minutes after it occurred, even though her brother was sleeping in an adjoining room; the government also called a sexual assault response coordinator as an expert who testified that based on her work with thousands of sexual assault victims, it was common for sexual assault victims not to fight back against their attacker, not to scream or call for help, and not to first report the sexual assault to the police rather than to a friend or family member; the witness also testified that the reason sexual assault victims do not scream or call for help is their fear of escalating the violence or harm; in juxtaposition, the defense put appellant on the stand where he testified that the alleged assault was an invited, consensual sexual encounter; the result was a “he said–she said” case, where the outcome largely depended on whether the panel found the alleged victim or appellant more credible; under this scenario, the expert witness’s testimony could have been of considerable significance in the minds of the panel members because it seemed to corroborate and ratify the alleged victim’s version of events; more importantly, actual bolstering occurred in this case because after the alleged victim already had clearly and directly testified to the panel members why she did not struggle more with her assailant, the expert provided additional testimony on the same point of why victims do not struggle more with their attackers; this bolstering was of particular concern because even the government conceded that the expert witness did not have a legitimate basis to testify on this point, and the military judge had explicitly placed such testimony by the expert off-limits; therefore, under these circumstances, the government failed to meet its burden of demonstrating that the expert witness’s improperly admitted testimony did not have a substantial influence on the findings). 

United States v. Davis, 73 M.J. 268 (the military judge’s error in not sua sponte providing instructions for both theories of defense of property was harmless beyond a reasonable doubt where a rational panel could not have found appellant’s actions reasonable in the context of responding to an immediate danger to his property or in the context of removing a trespasser from his property; first, even if a rational panel believed appellant’s version of events, there is no basis to conclude that a rational panel could have found appellant’s belief that his property was in immediate danger to be reasonable where there was no evidence that the alleged trespasser damaged the property, threatened the property, or intended to damage the property; furthermore, there is no basis to conclude that a rational panel could have found that the threat of force employed by appellant was reasonable; even if the panel fully believed appellant’s version of events, at most, the alleged trespasser walked briskly toward the front door and took an ineffectual swing at appellant after appellant had pushed him twice; therefore, appellant’s brandishing of a firearm was a disproportionate and unreasonable response under the circumstances; second, while a rational panel could have found that appellant rightfully asked the alleged trespasser to leave, there is no basis to conclude that a rational panel could have found appellant gave that person a reasonable amount of time to leave before he brandished the firearm; according to appellant’s own version of events, appellant marched straight into his house without confirming that the alleged trespasser had heard his command to leave, confronted the alleged trespasser as soon as he emerged from the house, and pointed a firearm at the alleged trespasser contemporaneously with his renewed demand that the alleged trespasser leave; nor could a rational panel have concluded that appellant threatened an amount of force reasonably necessary under the circumstances to remove the alleged trespasser from his property; even under appellant’s version of events, appellant was the initial aggressor in the confrontation with the alleged trespasser, and pointing a firearm at him was an unreasonable response under the circumstances; finally, the members apparently rejected appellant’s self-defense argument even though the military judge appropriately instructed the members on appellant’s right to self-defense based on the same circumstances appellant asserts warrant a defense of property instruction). 

United States v. Frey, 73 M.J. 245 (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). 

(although trial counsel’s improper insinuation in his sentencing argument that appellant was necessarily guilty of additional offenses and would be a serial recidivist if not confined was both unsubstantiated and severe, and although the military judge’s sentencing instructions were not sufficient to cure trial counsel’s improper argument, the substantial rights of appellant were not materially prejudiced where the members adjudged an even lighter sentence than the government requested and settled upon the period of confinement that appellant asked for, where the weight of the evidence amply supported the sentence adjudged, and where appellant failed to demonstrate that he was not sentenced on the basis of the evidence alone).

United States v. Danylo, 73 M.J. 183 (pretrial confinement which exceeds an adjudged sentence is not per se prejudicial). 

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). 

(in this case, although the trial counsel’s misconduct was sustained and severe in attempting to elicit improper character evidence testimony related to the accused’s drug use generally from nearly every witness called during the government’s case-in-chief and in arguably making improper closing argument, despite repeated sustained objections as well as admonition and instruction from the military judge, appellant was not prejudiced, where (1) the military judge appeared to have left no stone unturned in ensuring that the members considered only admissible evidence in this case, calling multiple Article 39(a), UCMJ, sessions to prevent tainting the panel, issuing repeated curative instructions to the members, and providing a comprehensive instruction during trial counsel’s closing argument, again explaining that the members could not consider evidence that was the subject of a sustained objection for any purpose, and (2) strong evidence supported the convictions for signing a false official statement and larceny, and the improper character evidence that trial counsel sought to elicit related to the drug offenses, not to the false official statement and larceny offenses; and although the evidence supporting the using spice conviction was not as strong as that supporting the false official statement and larceny convictions, it was substantial, to include two witnesses who testified they saw appellant smoking a substance that he identified to them as spice; furthermore, despite the clumsy attempts by the trial counsel to elicit improper character evidence testimony related to drug use generally, the fact that the panel acquitted appellant of other, weaker drug charges indicates that it took the military judge’s instructions to disregard impermissible character evidence seriously). 

United States v. Knapp, 73 M.J. 33 (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). 

(under the circumstances of this case, where an AFSOI agent offered impermissible human lie detector testimony when he testified that, using his specialized training, he was able to determine from specific nonverbal clues that appellant was being deceptive when he provided an innocent account of the events in question, the error was clear and obvious and materially prejudiced appellant’s defense, where the human lie detector testimony was not offered on a peripheral matter or even as a building block of circumstantial evidence, but on the ultimate issue in the case - whether appellant was truthful as to the charge, and where the military judge failed to appropriately instruct the members to disregard this testimony). 

United States v. Payne, 73 M.J. 19 (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)). 

(the omission of instructions on the third and fourth elements of attempt did not materially prejudice appellant’s substantial rights, where appellant did not contest those elements at trial as he relied primarily upon the defense of entrapment; furthermore, the evidence on those elements was overwhelming). 

2012 (September Term)

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). 

(the military judge’s admission in violation of the confrontation clause of two testimonial pages of a drug testing report, summarizing the test results with signatures of the analyst and reviewer, was not harmless beyond a reasonable doubt, where with regard to the quantitative results of the drug tests, the expert witness exclusively referenced the testimonial statements in the summary pages without delving into the underlying machine-generated data, and he highlighted the signature blocks on the summary pages to establish that the lab’s testing standards and controls were followed during the testing of the accused’s samples; at no time did the expert witness specifically interpret or rely on the machine-generated portions of the drug testing report to independently conclude that the accused’s samples had tested positive for illegal drugs; in light of these facts, the government failed to carry its burden to demonstrate that there was no reasonable possibility that the testimonial statements contributed to the accused’s convictions).

United States v. Mott, 72 M.J. 319 (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). 

(in a prosecution for attempted premeditated murder, in which appellant raised the affirmative defense of not guilty by reason of insanity, the improper admission of appellant’s statement interrogation obtained in violation of his right to counsel was not harmless beyond a reasonable doubt due to its potential effect on appellant’s defense, where the government relied on appellant’s statement to show that appellant, though severely mentally ill, appreciated the wrongfulness of his actions, and where trial counsel used appellant’s statement extensively in his closing argument to support the theory that appellant intended to kill his victim out of revenge, not self-defense). 

United States v. Hutchins, 72 M.J. 294 (at appellant’s court-martial, the government’s use of appellant’s statement, obtained in violation of his Fifth Amendment right to counsel during a custodial interrogation, was not harmless beyond a reasonable doubt, where the government made use of the detailed statement in its opening statement, closing argument, and rebuttal argument, and as evidence to corroborate other evidence and to attack the opinion of the defense expert witness; notwithstanding the other evidence of appellant’s guilt, there was a reasonable likelihood that the statement contributed to the verdict). 

United States v. Jasper, 72 M.J. 276 (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). 

(a military judge’s erroneous ruling  that the alleged sexual abuse victim and her mother had not waived the clergy privilege of MRE 503, a privilege that protected the alleged victim’s statement to her pastor that she had made up her sexual abuse allegations against appellant to get attention, was not harmless beyond a reasonable doubt where the government’s case and appellant’s defense strategy hinged on the alleged victim’s credibility and where the ruling prevented appellant from using the alleged victim’s exculpatory statement to impeach the alleged victim’s testimony; the defense counsel’s use of the alleged victim’s exculpatory statement may have tipped the credibility balance in appellant’s favor, and its erroneous prohibition was not unimportant in relation to everything else the members considered, especially where the government exploited the erroneous ruling in its closing argument; in sum, the government failed to carry its burden to show that the deprivation of key evidence directly related to the credibility and motivation of its primary witness was harmless beyond a reasonable doubt, and the error materially prejudiced appellant’s ability to defend himself against every specification of which he was convicted). 

United States v. Gaskins, 72 M.J. 225 (in this case, the court of criminal appeals did not prejudice appellant when it ordered a sentencing rehearing because of the absence of a defense sentencing exhibit from the trial record; on rehearing, the military judge crafted remedial measures that sought to cure any prejudice appellant may have suffered from the absence of the missing exhibit by limiting the government’s aggravation evidence, and the confinement adjudged was three years less than the original sentence). 

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

(in the context of a defective Article 134, UCMJ, specification raised for the first time on appeal, the failure to allege the terminal element is not necessarily structural error warranting automatic dismissal, but error that can be tested for prejudice). 

(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). 

United States v. Castellano, 72 M.J. 217 (where the members were permitted to find appellant guilty of sodomy without force based on a finding that nothing more than an act of sodomy occurred, this error was not harmless beyond a reasonable doubt). 

United States v. Goings, 72 M.J. 202 (finding sufficient notice of the terminal element in an Article 134, UCMJ, specification that did not allege the terminal element - and thus no prejudice – on such bases as:  (1) witness testimony describing the act or failure to act that meets Article 134, UCMJ’s, first element; (2) the government’s identification of its theory of criminality during its closing argument; (3) evidence of defense counsel’s general awareness of the terminal element; or (4) findings instructions that require the panel to find the terminal element beyond a reasonable doubt in order to convict, without more, is error; that: (1) the evidence was legally sufficient to prove the terminal element; (2) defense counsel demonstrated a general knowledge of the law, and (3) the government’s theory of criminal liability was introduced during closing or through findings instructions do not answer the altogether different question whether the record sufficiently demonstrates that an accused was on notice as to which clause or clauses of the terminal element he needed to defend against; it is this latter question that determines whether an appellant was prejudiced).

(in this case, where an Article 134, UCMJ, indecent act specification did not allege the terminal element, appellant was not prejudiced because he was put on notice of the terminal element where (1) the government argued that the evidence was prejudicial to good order and discipline in its opening statement, (2) the government presented evidence during its case-in-chief as to why the indecent act with another was both prejudicial to good order and discipline and service discrediting, and (3) appellant defended against the specification on the ground that neither clause 1 nor clause 2 of the terminal element had been met during both his cross-examination of government witnesses and closing argument). 

United States v. Tunstall, 72 M.J. 191 (appellant did not meet his burden to demonstrate material prejudice to a substantial right by the failure of an adultery specification to state the terminal element, where evidence in the trial record indicates that the defense introduced evidence on the merits for the specific purpose of negating both theories of the terminal element, the military judge instructed on the terminal element of the offense without defense objection, and, during its closing argument, the defense argued that the government had not proven either theory of the terminal element). 

United States v. Coleman, 72 M.J. 184 (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). 

(the military judge did not abuse his discretion in denying the defense’s motion for mistrial where the government failed to disclose to the defense that the SJA had verbally agreed to reduce a co-accused’s sentence in exchange for his testimony against the accused because the disclosure error was harmless beyond a reasonable doubt; the co-accused’s direct testimony was very brief and corroborated the victim’s testimony; the co-accused also testified for the defense and admitted that appellant had had consensual sexual relations with the victim earlier in the evening and that the victim was not so intoxicated that she could not walk, talk, or unlock her door without stumbling or fumbling; furthermore, the defense knew that the co-accused had been convicted and sentenced for the same offenses with which appellant was charged, and he could have impeached the co-accused with the conviction and punishment but chose not to do so; instead the defense counsel argued that the co-accused was testifying because he wanted clemency from the convening authority for his participation in the offenses; in addition, the co-accused’s motive to misrepresent was self-evident to the court members; in fact, it is unclear how knowing that the SJA had agreed to recommend that the convening authority grant the co-accused clemency in exchange for his testimony would have caused the defense counsel to change strategy or tactics or led to a different result; it would not have affected either the defense counsel’s ability to cross-examine the co-accused or his closing argument; finally, had the defense tried to impeach the co-accused with the agreement, the co-accused’s prior statement to law enforcement that was consistent with his testimony at trial would have been admitted to rebut any defense contention that he had a motive to alter his testimony to obtain clemency; even if the military judge would have refused to admit the prior consistent statement for the truth of the matter asserted, it still would have been admissible simply to corroborate, or rehabilitate, the in-court testimony of a witness, regardless of whether it qualified for exception from the hearsay rule under MRE 801(d)(1)(B); while the conduct of the prosecution in not disclosing the oral agreement between the co-accused and the SJA was, at a minimum, negligent, and certainly violated Brady, Article 46, and RCM 701–703, the government established that under the circumstances of this case, its failure was harmless beyond a reasonable doubt - disclosure would not have affected the outcome of the trial, and the military judge did not abuse his discretion in refusing to declare a mistrial). 

United States v. Solomon, 72 M.J. 176 (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). 

(the military judge’s error in determining that the probative value of the prior sexual assaults allegedly committed by appellant outweighed the risk of unfair prejudice under MRE 403 was not harmless, where (1) the government conceded that if it were error to admit the MRE 413 evidence in this case, then it would not be harmless, and (2) the government’s entire theory of the case was that appellant engaged in an escalating pattern of deviant sexual behavior and the erroneously admitted evidence was material to the government’s otherwise weak case; as such, the government failed to demonstrate the error did not have a substantial influence on the findings).

United States v. Tearman, 72 M.J. 54 (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). 

(the erroneous admission of testimonial hearsay of the official drug test result and certification on the specimen custody document, DD Form 2624, in a drug use conviction was harmless beyond a reasonable doubt, where (1) the minimal testimonial hearsay admitted was unimportant to the government’s case when viewed as a whole; (2) the testimonial hearsay was cumulative with the testimony of the expert witness from the drug screening laboratory; (3) the testimonial hearsay was independently corroborated; and (4) overall, the government’s case was strong). 

United States v. Clifton, 71 M.J. 489 (appellant bears the burden to show prejudice in the absence of an objection at trial and in the context of a nonconstitutional error). 

(the military judge’s error in summarily denying a member’s request to recall two witnesses for further questioning was not prejudicial, where appellant’s conviction was supported by overwhelming evidence, to include his written confession, where both witnesses that the member wished to recall had already testified extensively, and where the members had opportunity to ask questions and did). 

United States v. Halpin, 71 M.J. 477 (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). 

(appellant failed to establish that the trial counsel’s sentencing argument prejudiced his substantial rights where the weight of the evidence amply supported the sentence imposed by the panel; appellant’s misconduct could have exposed him to seven years and six months of confinement; trial defense counsel successfully negotiated a pretrial agreement which limited appellant’s confinement exposure to the twelve-month maximum of a special court-martial; and appellant’s actual sentence was ten months of confinement, a bad-conduct discharge, and a reprimand). 

United States v. Garner, 71 M.J. 430 (the military judge’s error in failing to give reconsideration instructions after she examined the sentence worksheet, returned it to the members to clarify an ambiguity, and the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence, was neither plain nor obvious error and, in any event, there was no prejudice; RCM 1009(e)(3) provides the procedures to be followed when a sentence is reconsidered and RCM 1009(e)(3)(A) specifically provides that the members may reconsider a sentence with a view of increasing it only if at least a majority vote for reconsideration; accordingly, if the initial sentence to confinement was thirty-five years, as urged by appellant, as opposed to confinement for life without eligibility for parole, reconsideration of that sentence with a view of increasing it would have required four of the seven members to vote for reconsideration; when the military judge provided her initial instructions on possible punishments to the members, she instructed them that a sentence of confinement for life required the concurrence of three-fourths or six members; because the “new” sentence that included confinement for life would have required more than a simple majority (four of seven), i.e., the concurrence of three-fourths of the members (six of seven), appellant was not prejudiced). 

United States v. Wilkins, 71 M.J. 410 (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). 

(although in this case appellant’s alleged actions could not have constituted the charged offense of aggravated sexual assault, his right to due process was not violated by his conviction for abusive sexual contact, which was erroneously instructed upon as a lesser included offense; appellant was not prejudiced by the substitution of the term “sexual act” for “sexual contact” because he was on notice of what he needed to defend against throughout his court-martial, given that the specification expressly stated that he placed his fingers or another object in the victim’s anus, and the defense’s strategy demonstrated that appellant understood that he was defending against all the elements of abusive sexual contact; this strategy would not have changed had the specification properly alleged “contact” instead of “act”; accordingly, appellant failed to demonstrate prejudice to a substantial right). 

2011 (September Term)

United States v. Ali, 71 M.J. 256 (the erroneous failure to reference the terminal elements of clauses 1 or 2 of Article 134, UCMJ, prejudice to good order or discipline or service discrediting conduct, in the specification alleging obstruction of justice did not materially prejudice appellant’s substantial rights, where he pleaded guilty to the offense in accordance with a pretrial agreement, the military judge explained the elements of prejudice to good order and discipline and service discrediting conduct to him during the providence inquiry, and he admitted during this inquiry that his conduct was prejudicial to good order and discipline). 

United States v. Behenna, 71 M.J. 228 (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). 

(even if evidence from a nontestifying expert witness associated with the government’s case was favorable and not properly disclosed by the government, in violation of Brady v. Maryland, 373 US 83 (1963), the evidence was immaterial both as substantive and impeachment evidence, where the witness’s testimony, at most, would have made appellant’s version of events more likely (that is, that appellant shot a detainee as he stood and reached for appellant’s pistol; in turn, whether the detainee remained seated or stood when he was shot was only relevant to two issues:  premeditation and self-defense), but it would have been similar to the opinion of other defense experts, his opinion could have been impeached by his failure to provide a reasonably certain or consistent opinion, the members rejected the government’s theory of a premeditated, execution-style killing in returning a verdict that appellant was guilty of unpremeditated murder, and the witness’s testimony could not have independently established the factual predicate for a self-defense theory; rather, it would have only bolstered appellant’s version of events; assuming the truth of appellant’s version of what transpired in the culvert, he had lost the right to act in self-defense as a matter of law). 

United States v. Humphries, 71 M.J. 209 (a defective specification does not constitute structural error or warrant automatic dismissal; an accused’s claim that a charge fails to allege all elements of an offense can be raised at any time during court-martial or appellate proceedings under RCM 907(b)(1)(B); however, where defects in a specification are raised for the first time on appeal, dismissal of the affected charges or specifications will depend on whether there is plain error, which, in most cases, will turn on the question of prejudice). 

(under Article 59(a), UCMJ, a finding or sentence of 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; where an error of law materially prejudices a substantial right, an appellate court may notice the error, keeping in mind the need to encourage timely objections and reduce wasteful reversals and to respect the particular importance of the finality of guilty pleas; however, nothing in Article 59(a), UCMJ, mandates reversal even where an error falls within its terms; the statutory text of Article 59(a), UCMJ, with the high threshold of material prejudice to a substantial right and discretion to redress error, when considered in light of the principles the Supreme Court has articulated in its consideration of a different rule, preserves the careful balance between judicial efficiency and the redress of injustice). 

(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)

(a defective adultery specification in a contested case that failed to allege the terminal element under Article 134, i.e., that the conduct was prejudicial to good order and discipline or service discrediting conduct, resulted in material prejudice to the accused’s substantial right to notice under the Fifth and Sixth Amendments, where neither the specification nor the record provided notice of which terminal element or theory of criminality the government pursued in this case; the government never mentioned the adultery charge in its opening statement, did not present any specific evidence or call a single witness to testify as to why the accused’s conduct satisfied either clause 1, clause 2, or both clauses of the terminal element of Article 134, UCMJ, and made no attempt to tie any of the evidence or witnesses that it did call to the Article 134, UCMJ, adultery charge; although the military judge’s panel instructions correctly listed and defined the terminal element of Article 134, UCMJ, as an element of the adultery specification, this came after the close of evidence and, again, did not alert the accused to the government’s theory of guilt). 

United States v. Rose, 71 M.J. 138 (a specification alleging obstruction of justice as a violation of Article 134, UCMJ, but failing to allege the terminal element of that offense, was erroneous but not prejudicial to the accused’s substantial rights, where during the guilty plea colloquy, the military judge listed and defined clauses 1 and 2 of the terminal element for the accused, and the accused described his actions and explained why his conduct was service discrediting and prejudicial to good order and discipline; thus, the record unambiguously reflects that the accused knew under what clauses he was pleading guilty and clearly understood the nature of the prohibited conduct as being in violation of clauses 1 and 2 of Article 134).

United States v. Barberi, 71 M.J. 127 (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). 

(the constitutional error arising from the general verdict finding appellant guilty of possessing child pornography in violation of Article 134 based on his possession of six images of his stepdaughter, four of which were constitutionally protected, was not harmless beyond a reasonable doubt, where the constitutionally protected images reasonably may have contributed to the conviction and could not be deemed unimportant in relation to everything else the members considered). 

United States v. Nealy, 71 M.J. 73 (although it was error to fail to allege, expressly or by necessary implication, the terminal element of the offense of communicating a threat charged under Article 134, UCMJ, nonetheless, there was no prejudice to appellant’s substantial rights where he pleaded guilty to a specification that was legally sufficient at the time of trial, where during the providence inquiry, the military judge described and defined clauses 1 and 2 of the terminal element, and where appellant did in fact admit that his actions were prejudicial to good order and discipline in violation of clause 1). 

United States v. Watson, 71 M.J. 54 (in this case, although the failure to allege the terminal element in the specifications alleging the offenses of communicating a threat and indecent language under Article 134 was error, the error was not prejudicial to appellant’s substantial rights where he admitted in his stipulation of fact that his conduct in each incident was service discrediting, entered into a pretrial agreement and pleaded guilty to the offenses, and specifically explained during the plea colloquy why his conduct was service discrediting as to both specifications). 

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). 

(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). 

(while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2).

United States v. Bradley, 71 M.J. 13 (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). 

(in this case, where appellant pleaded guilty unconditionally with a pretrial agreement, even if his counsel erroneously informed him that his prior motion to disqualify trial counsel was preserved for appeal, he could not show prejudice to support an ineffective assistance of counsel claim where it would not have been rational for him to have rejected the plea offer just for the opportunity to change the identity of trial counsel; even if the military judge had disqualified trial counsel, it would not have changed the nature of the evidence appellant faced, the government had a fairly strong case against him, and the plea agreement allowed him to avoid a possible life sentence; appellant failed to draw a link between the disqualified trial counsel and the manner in which trial would have proceeded had trial counsel been disqualified, even assuming he pleaded not guilty). 

United States v. St. Blanc, 70 M.J. 424 (in this case, the military judge calculated an incorrect maximum punishment for a specification of possessing “what appears to be” child pornography in reliance on the CPPA; that error was plain and obvious, and given the disparity between the maximum sentence of twelve years calculated by the military judge and the actual maximum sentence of two years and four months, this error may have substantially influenced the sentence and materially prejudiced appellant’s substantial rights; accordingly, the sentence must be set aside and a rehearing on sentence authorized). 

United States v. Winckelmann, 70 M.J. 403 (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).

(under Article 66(c), UCMJ, the CCA may act only with respect to the findings and sentence as approved by the convening authority; where in this case, the CCA affirmed a forfeiture of pay even though the convening authority did not approve such a forfeiture, the CCA committed error; however, the error was not prejudicial; under Article 58b, UCMJ, appellant had already forfeited any claim to the pay and allowances due to him during his confinement; because the convening authority did not waive the automatic forfeiture under Article 58b, UCMJ, appellant was not entitled to pay and allowances). 

2010 (September Term)

United States v. Ellerbrock, 70 M.J. 314 (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). 

(in a prosecution for rape and sodomy, the erroneous exclusion of constitutionally required evidence of a prior affair of the alleged victim was not harmless beyond a reasonable doubt, where under the circumstances of the case, a reasonable factfinder might have received a significantly different impression of the victim’s credibility had defense counsel been permitted to pursue on cross-examination his theory that the prior affair made it more likely that the victim would have lied; here, the victim’s testimony about consent was crucial to the accused’s conviction, there were significant contradictions in witnesses’ testimony about the level of the victim’s intoxication at the time of the sexual encounter, and the prosecution’s case was not overwhelming; as such, there was a reasonable possibility that the error in the exclusion of the evidence might have contributed to the conviction). 

United States v. Sweeney, 70 M.J. 296 (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. Eslinger, 70 M.J. 193 (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). 

(any error in admitting the rebuttal sentencing testimony of witnesses from appellant’s chain of command who testified that appellant should not be retained in the armed forces was harmless, where although appellant’s combat service offered significant mitigation, his possession of child pornography was extensive, he did not make the case that his conduct was in some manner the result of his combat experience, he faced a DD and confinement for 30 years, but received a BCD and confinement for 3 years, he had an extensive record of prior misconduct, the military judge gave a standard instruction to guide the members on whether to award a punitive discharge, and if so, what kind, and appellant was sentenced by a panel of six experienced members; the possibility that appellant would have received less confinement or would have avoided a punitive discharge, absent the rebuttal testimony, was remote; the rebuttal testimony did not substantially influence the members’ judgment on the sentence).   

United States v. Martinez, 70 M.J. 154 (in this case, the appearance of partiality created by the supervisory judge privately conferring with the trial counsel and then accompanying the presiding judge into his chambers during recess and deliberations did not materially prejudice appellant, where after appellant informed the convening authority of the judge’s highly unusual actions and requested reduced confinement as a remedy, the convening authority approved a sentence consistent with appellant’s request; as to the first part of the Liljeberg [486 US 847 (1988)] test, the record did not support nor has appellant identified any specific injustice that he personally suffered under the circumstances; as to the second part of the test, it was not necessary to reverse the results of the present trial in order to ensure that military judges exercise the appropriate degree of discretion in the future; and as to the third part of the test, the parties recognized the error and fashioned an appropriate remedy, and under these circumstances, the public’s confidence in the military justice system would not be undermined).

United States v. Marsh, 70 M.J. 101 (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). 

(appellant was prejudiced by trial counsel’s improper sentencing argument that appellant could not be trusted work on helicopters in the future because of his conviction for making a false official statement during a rape investigation and for inviting court members to put themselves in an aircraft repaired by appellant, where the military judge provided no specific curative instruction in response to trial counsel’s sentencing argument, where the government did not present a significant case in aggravation, where the defense called three character witnesses, and where, although appellant did not receive the maximum sentence, it was not clear that his sentence was unaffected by the trial counsel’s improper argument). 

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). 

(assignment of a new detailed trial defense counsel was sufficient to remedy the military judge’s procedural error in the severance of the status of the former detailed defense counsel upon his departure from active duty, given the responsibilities of the former counsel in relation to the defense team). 

United States v. Savala, 70 M.J. 70 (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). 

(the decision of the military judge to permit the prosecution to use the victim’s prior allegation of sexual assault to enhance her credibility with respect to the reasons for her delayed reporting of the current allegation of sexual assault, while denying the defense an opportunity to explore the impact of that event on her credibility as to whether she fabricated the prior allegation to protect her reputation, constituted prejudicial error; appellant’s cross-examination of the victim on her prior allegation of being sexually assaulted could have convinced the panel that the prior allegation was false, and if the members believed that the victim had made a prior false allegation of rape, it may have tipped the credibility balance in appellant’s favor, where although the prosecution presented a strong circumstantial case at trial, the case relied on the testimony of a witness who had misled investigators about the underlying events, and who did not observe the sexual encounter at issue, and the hazy memory of the victim, impacted by her excessive consumption of alcohol, and where the case involved conflicting testimony between the victim and appellant about what happened at the critical time when they were the only two people present). 

United States v. Medina, 69 M.J. 462 (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). 

(even though the military judge erred in not instructing the members under the statutory scheme of the aggravated sexual assault offense under Article 120(c)(2), UCMJ, that the burden was on the accused to prove the affirmative defense of consent by a preponderance of the evidence, the error was harmless beyond a reasonable doubt where the military judge clearly and correctly instructed the members that the evidence raised the defense of consent and that the government had the burden of disproving the defense beyond a reasonable doubt). 

United States v. Clark, 69 M.J. 438 (with respect to constitutional error, an appellate court must be satisfied beyond a reasonable doubt that the error was harmless beyond a reasonable doubt).

(any error in trial counsel’s use of appellant’s demeanor and silence as evidence of guilt was harmless beyond a reasonable doubt in a prosecution for attempting to communicate indecent language to a child where the government’s case against appellant was supported by substantial evidence; appellant was positively identified by his name and contact information online after he became “friends” with a police officer posing on the internet as a 13-year-old girl, and he admitted both in a police interview and in a sworn statement to sexual communications with someone he believed to be thirteen years old).

United States v. Dollar, 69 M.J. 411 (a violation of the Confrontation Clause of the Sixth Amendment arising from the preadmission of two drug testing report cover memoranda that contained statements of declarants who did not testify was not rendered harmless beyond a reasonable doubt when the surrogate expert witness later testified about the drug test results, where the expert frequently referred to the cover memoranda, and at one point read verbatim from a cover memorandum in response to being asked what he could conclude from the results). 

United States v. Lofton, 69 M.J. 386 (prejudice under the sequestration rule of MRE 615 is determined by considering whether the witness’s testimony was affected by the trial proceedings that the witness heard). 

(appellant was not prejudiced by any violation of the sequestration rule caused by text messaging from family members of the victims seated inside of the courtroom to victims seated outside of the courtroom, where the first testifying victim could not have had her testimony shaped by that of the other victims, where appellant was acquitted of all charges involving the third testifying victim, and where the testimony of the second testifying victim related to an incident that was distinct from that involving the first testifying victim, and where her testimony after she was called as a defense witness remained remarkably similar to her testimony given before the third testifying witness and was not very congruent with that of the third testifying witness; there was simply no evidence for concluding that shaping of testimony or collusion occurred). 

United States v. Flores, 69 M.J. 366 (when an objection is made to a nonconstitutional error, appellate courts determine whether the error materially prejudiced the substantial rights of the accused). 

(regardless of whether there was an objection or not, in the context of a constitutional error, the burden is on the government to establish that the comments were harmless beyond a reasonable doubt). 

(a plain and obvious error that occurred when trial counsel, during his closing argument on the merits, used a statement made by appellant during the providence inquiry in an attempt to show that appellant corroborated the testimony of another witness, was harmless beyond a reasonable doubt, where the referenced corroboration was contained in a voluntary pretrial statement made by appellant to investigators, which was properly admitted at trial). 

(although trial counsel’s comment during closing argument on the merits that compared a witness’s trial testimony regarding the number of photographs appellant had taken of detainees to protected statements made by appellant during the providence inquiry was a comment on appellant’s right to remain silent and an error of constitutional dimension, the error was harmless beyond a reasonable doubt, where appellant’s voluntary pretrial statements that were properly before the court also supported the implication that appellant had not been forthcoming about the number of photographs she had taken). 

(even if trial counsel’s comment during closing argument on the merits that appellant had never given a set story to investigators was an improper reference to appellant’s right to remain silent, the error was harmless beyond a reasonable doubt in light of the truly overwhelming evidence of appellant’s guilt of wrongfully fraternizing with detainees and making false official statements). 

United States v. Gooch, 69 M.J. 353 (a nonconstitutional error in excluding a class of potential members from appellant’s court-martial based on dates of service at his base because such persons might have knowledge of the case or knowledge of appellant did not materially prejudice appellant’s right to a fair and impartial panel for two reasons; first, the Article 25, UCMJ, criteria were applied to the potential pool of members forwarded to the CA, who could select from the list or from others as he deemed appropriate and who personally selected the members; and second, the panel by which appellant was tried was fair and impartial, where the military judge conducted a rigorous and diligent voir dire process, in which he properly applied the law, including consideration of actual and implied bias). 

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).

(the government’s erroneous use of a green detoxification bottle as a demonstrative exhibit had no substantial impact on the findings where only the wrongfulness of the offense of wrongful use of cocaine was contested at trial, where drug use may be inferred to be wrongful in the absence of evidence to the contrary, where the defense did not produce any evidence showing that appellant’s use of cocaine was without knowledge and thus not wrongful, and where the government presented evidence of appellant’s admission that she had “messed up” and circumstantial evidence of her consciousness of guilt, including: her nervous behavior at the testing site, her initial failure to provide a sufficient sample, and her eight-hour delay in reporting to the drug testing center the following day). 

(although the military judge erred in failing to give a limiting instruction that the admitted demonstrative evidence was for illustrative purposes only, given the overwhelming evidence of appellant’s guilt and the fact that there was little danger that the members would have confused the demonstrative evidence for actual evidence, the absence of a limiting instruction had no substantial effect on the verdict, did not materially prejudice appellant’s rights, and did not constitute prejudicial plain error). 

(although testimonial comments at trial indicated that when appellant was informed of her positive drug test, she was lackadaisical, acted like she did not care, and did not appear surprised, these comments could be viewed as either nontestimonial demeanor evidence or as implicating appellant’s right to remain silent; accordingly, it was not plain, or clear, or obvious that they were comments on appellant’s constitutional right to remain silent; while a closer question, it was also not obvious that the comments violated MRE 304(h)(3)(stating that a person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does not support an inference of an admission of the truth of the accusation); even if the comments constituted either constitutional or evidentiary error, any such error was not prejudicial under either a constitutional or nonconstitutional standard, where the comments were minor comments in the context of the entire trial and argument, the government presented overwhelming evidence of appellant’s guilt, including the uncontested urinalysis results, her admission to her roommate, and her suspicious behavior at the testing site, and where appellant’s theory of defense was unclear and, therefore, not strong).

(given the overwhelming evidence of appellant’s guilt in this case, neither the error in admitting the demonstrative evidence nor the error in failing to give the members a limiting instruction about the demonstrative evidence had a substantial impact on the verdict, materially prejudiced appellant’s substantial rights, or denied her a fair trial). 

United States v. Luke, 69 M.J. 309 (even if the military judge erred in holding that the government was not required to provide the defense with a prosecution exhibit relating to statistical probabilities that it had prepared to use on redirect examination of a government expert witness in statistical genetics, the error was harmless and not prejudicial, where (1) on direct examination, trial counsel elicited from the expert a full explanation of the statistics presenting the likelihood that biological evidence in the case linked appellant to the physical evidence, (2) on redirect, the exhibit was simply a piece of demonstrative evidence that did no more than reiterate the expert’s testimony on direct examination, (3) the defense had all of the information about databases and populations necessary to understand how the calculations in that exhibit and all the other demonstrative exhibits were derived, and (4) given the multiple statistical formulations presented on direct examination, one additional calculation of the odds that the physical evidence was attributable to appellant would not have tipped the scales against him). 

(in view of the totality of the circumstances in this case, any violation in appellant’s due process right to speedy post-trial review and appeal as a result of a delay of over 11 years between the completion of his court-martial and the issuance of the CCA’s decision was harmless beyond a reasonable doubt; although the length of the delay was facially unreasonable, the majority of the delay was attributable to the procedural back and forth among the CAAF, the CCA, and the DuBay proceedings, and there was no merit in either of substantive issues appealed by appellant). 

United States v. Hutchins, 69 M.J. 282 (in this case, the accused was not materially prejudiced by the first detailed military assistance defense counsel’s failure to follow the appropriate procedures before terminating his participation in the accused’s case on the basis of his impending separation from active duty, where (1) the accused was represented by two attorneys throughout the process, and after the departure of his third counsel, the accused was provided with substitute counsel, (2) none of the issues under the initial responsibility of the departed counsel involved matters of fact or law in which he had unique knowledge or expertise beyond that which could be gained through routine preparation by the attorneys who remained on the defense team, and (3) the military judge granted the defense team each pertinent request for a continuance identified by the defense as necessary to prepare for trial). 

United States v. Stefan, 69 M.J. 256 (although the SJAR addendum in this case was prepared by a disqualified officer, appellant was not prejudiced by the error, where appellant did not even raise this issue on appeal to the CCA and the involvement by the disqualified officer in appellant’s case was minimal; in this case, nothing indicates that the disqualified officer actively prosecuted the case or took a firm stance on sentencing, and the addendum to the SJAR merely echoed the succinct recommendation of no clemency in the SJAR itself without further elaboration of appellant’s case; considering the circumstances of this case, including the host of offenses committed by appellant and the seriousness of some of his crimes, there is nothing that would suggest that another SJA would have made a different recommendation on appellant’s clemency request).

United States v. Savard, 69 M.J. 211 (a military judge’s error in failing to hold a requested pretrial Article 39(a) session before rendering his decision to deny a defense motion to enjoin the government from deposing witnesses in the Philippines was harmless error, where (1) appellant failed to suggest what, if anything, he would have presented at the session that would have convinced the military judge to find that there was good cause to enjoin the prosecution from proceeding with the depositions, and (2) where appellant failed to assert that the military judge erred in admitting the depositions into evidence, or even attempted to show prejudice from anything contained therein).   

(any error in a military judge’s failure to hold a pretrial Article 39(a) session to consider appellant’s motion asking that the detailed court members be ordered to answer written voir dire questions was harmless, where appellant did not object to the military judge’s rulings concerning the voir dire questions, and, other than speculating that the court members would answer more fully and truthfully in writing, did not establish a particular need for written questions).

United States v. Diaz, 69 M.J. 127 (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).

(the military judge’s error in denying appellant the opportunity to introduce motive evidence to defend against a charge of conduct unbecoming an officer under Article 133, UCMJ, for releasing classified documents about detainees at the Guantanamo naval base was harmless; although the military judge’s decision to exclude evidence of appellant’s state of mind certainly changed the way appellant defended himself at trial, the military judge’s error did not have a substantial influence on the trial and appellant could not have avoided a conviction under Article 133, UCMJ, even if some or all of his proffered evidence had been admitted, where (1) appellant copied classified material and send it to a person not authorized to receive it, (2) his clandestine method of disclosure – by sending it through the postal system cut up in a Valentine’s Day card – suggests that he knew at the time his actions warranted concealment, and (3) his failure to adhere to presidential directives and departmental regulations, including those regarding classified information and for addressing differences of legal views within the Department of Defense, demonstrated that appellant was not legally permitted to disregard the classified nature of the protected information). 

United States v. Yammine, 69 M.J. 70 (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). 

(the military judge’s error in admitting evidence of a list of computer filenames suggestive of homosexual acts involving preteen and teenage boys found on the hard drive of appellant’s laptop computer was not harmless in a prosecution for committing sodomy with a child, where this was a case of dueling facts pitting appellant’s denial that sexual contact occurred against the victim’s claim that it did, and the members were instructed that they could consider the filename evidence, which had nothing to do with the victim, for its tendency, if any, to show appellant’s propensity to engage in the charged conduct; the filename evidence introduced new ammunition against appellant found nowhere else in the record; while the question of prejudice might otherwise be a close one, members are presumed to follow the military judge’s instructions, and in this case, the military judge’s instruction, erroneously permitting members to use the filenames to show appellant’s propensity to engage in sodomy or indecent acts with a child, tipped the balance here; the admission of and instruction on the use of the filename evidence had a substantial influence on the findings, and materially prejudiced appellant’s substantial rights). 

United States v. Roberts, 69 M.J. 23 (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). 

(the military judge’s error in a rape trial in excluding the cross-examination of the victim, appellant’s wife, about her relationship with another man and about her phone call to that man immediately after the underlying incident, was harmless beyond a reasonable doubt, where although the victim was the only witness to the underlying rape incident besides appellant, other evidence about the alleged relationship with the man was admitted, where evidence of appellant’s admissions to investigators about the circumstances surrounding the rape and of the victim’s extensive physical injuries corroborated her testimony, and where the government’s case against appellant was strong, especially in light of appellant’s admissions to investigators and to a neighbor). 

United States v. Roach, 69 M.J. 17 (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). 

(in this case, although the error by the chief judge in recommending to the JAG an acting chief judge for a case in which the chief judge was recused was a nonstructural error, it nonetheless was not harmless where public confidence in the military judicial process was surely undermined when judge who was recommended by the recused judge subsequently presided over the case, reviewed the recused judge’s prior conduct, and wrote the opinion upholding the recused’s judge’s conduct). 

United States v. Anderson, 68 M.J. 378 (any due process violation occurring after the military judge denied appellant’s request for a forensic psychologist expert witness and then the government presented a forensic psychiatrist in rebuttal to the defense non-forensic experts in psychology and psychiatry, was harmless beyond a reasonable doubt in a prosecution of attempting to give intelligence to the enemy, where the limited testimony of the government’s rebuttal expert added little to the government’s case and merely confirmed the plausibility of the direct testimony of appellant’s experts).  

United States v. Durbin, 68 M.J. 271 (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). 

(assuming without deciding that appellant’s actions with his laptop computer after his wife confronted him with suspected child pornography she found on it were a communication protected by the marital privilege under MRE 504 and that the testimony of his wife concerning his actions was erroneously admitted, the admission of that testimony was harmless at a trial on a charge of possessing child pornography and had no prejudicial impact on appellant’s substantial rights, where the government’s case was very strong, including hard drives seized from appellant’s desktop and laptop computers containing 32 known or suspected images of child pornography, where appellant’s case was markedly less substantial, primarily consisting of attempting, through cross-examination, to establish that other individuals who had access to his computer may have accessed and retained the images, and where the testimony of appellant’s wife was not material to the government’s case). 

United States v. Ediger, 68 M.J. 243 (even if testimony that appellant had invited prior child victim to join in when she walked in on appellant and her mother having sex was not evidence of a prior act of child sexual molestation under MRE 414 and was erroneously admitted, the admission of this testimony was harmless under the test for prejudice from an erroneous evidentiary ruling set forth in United States v. Kerr, 51 MJ 401, 405 (CAAF 1999), where the following factors are evaluated to determine prejudice:  (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; in this case, the government presented a strong case against appellant at the court-martial and the additional evidence of appellant’s invitation could not have tipped the scales in favor of the government any more than the prior child victim’s other testimony already had). 

United States v. Ashby, 68 M.J. 108 (in this case, the error in the trial counsel’s comments referencing appellant’s invocation of his right to remain silent was harmless beyond a reasonable doubt, where the military judge took immediate corrective action which included giving the members a curative instruction, requiring trial counsel to redact her statements, asking each member individually whether he could follow the military judge’s instructions, and reminding the members at the close of the evidence about appellant’s absolute right to remain silent; because the military judge’s actions following the improper comments adequately cured the error and rendered it harmless beyond a reasonable doubt, a mistrial was not an appropriate remedy). 

United States v. Bush, 68 M.J. 96 (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). 

United States v. Smead, 68 M.J. 44 (error at rehearing in allowing reinstatement of charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA was harmless, where appellant was not prejudiced because the convening authority properly dismissed those charges with prejudice at the rehearing). 

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).

(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).

(even assuming defense counsel was deficient in capital murder case in investigation and presentation of mitigation evidence related to petitioner’s background and social history, petitioner was not prejudiced, as required to support an ineffective assistance of counsel claim, where defense counsel presented a mitigation case that devoted a significant degree of attention to petitioner’s troubled childhood, where the evidence that was not presented, including expert testimony explaining how petitioner’s traumatic childhood negatively impacted his development, did not materially alter his sentencing profile, and where aggravating factors were overwhelming). 

(in capital murder case, where the mitigation case presented at the DuBay hearing provided some new information and arguably did more than round out the details of petitioner’s personal history by offering additional grim and graphic information about his disadvantaged upbringing, it did not ultimately change the sentencing profile presented by defense counsel at trial, and the new evidence did not sufficiently differ in strength and subject matter from the information considered by the members at trial to establish prejudice; as such, petitioner failed to meet his burden to show a reasonable probability that the mitigating evidence introduced at the DuBay hearing would have produced a different result had it been introduced at trial and that at least one member would have struck a different balance).    

United States v. Wiechmann, 67 M.J. 456 (when a Sixth Amendment claim involves a governmental act or omission affecting the right of an accused to the assistance of counsel, an appellate court considers whether the infringement involves a structural error -- an error so serious that no proof of prejudice is required -- or whether the error must be tested for prejudice; structural error exists when a court is faced with the difficulty of assessing the effect of the error or the error is so fundamental that harmlessness is irrelevant; structural errors involve errors in the trial mechanism so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence; there is a strong presumption that an error is not structural). 

(even assuming that the convening authority’s error in declining to recognize appellant’s detailed defense counsel and restricting his role during the pretrial proceedings violated appellant’s Sixth Amendment rights, it was harmless beyond a reasonable doubt, where the unrecognized counsel represented appellant fully as lead defense counsel throughout the trial and post-trial proceedings, where appellant, with the assistance of that counsel, entered into a pretrial agreement that expressly waived any error in the Article 32 investigation, where that counsel had the opportunity to engage in negotiations with the convening authority regarding a defense request for nonjudicial disposition as well as the terms of the pretrial agreement, where appellant claimed no measurable prejudice from the inability of that counsel to participate in an initial pretrial scheduling conference, and where appellant has not claimed that his plea was involuntary or that the providence inquiry was otherwise deficient). 

United States v. Paige, 67 M.J. 442 (the harmless beyond a reasonable doubt standard when the error involves remarks that trial counsel made during closing argument pertaining to an accused’s decision to exercise his Fifth Amendment rights is whether there is a reasonable possibility that the error complained of might have contributed to the conviction; to say that an error did not contribute to the ensuing verdict is to conclude that the error was unimportant in relation to everything else the members considered on the issue in question, as revealed in the record).   

(trial counsel’s plain and obvious error in commenting in argument in a rape trial that appellant had to assert that his mistake was honest to establish a mistake of fact defense was harmless beyond a reasonable doubt, where the evidence strongly supported that the victim was incapable of consenting to sexual intercourse due to intoxication, where the extensive and consistent testimony addressing the victim’s condition immediately before the intercourse strongly supported that the defense of mistake of fact did not exist, and where the members were instructed that appellant had a right to remain silent and that they could not draw any adverse inference to appellant from the fact that he did not testify as a witness; trial counsel’s error was unimportant in relation to everything else the members considered). 

United States v. Marshall, 67 M.J. 418 (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). 

(in an escape from custody charge, a material variance in the custodian from whom appellant was alleged to have escaped was prejudicial where appellant could not have anticipated being forced to defend against the charge of which he was ultimately convicted; had appellant known that he would be called upon to refute an agency theory or to defend against a charge that he escaped from a different individual than the one charged, appellant was unlikely to have focused his defense and his closing argument on the lack of evidence that charged individual placed him in custody or that he escaped from the custody of the charged individual). 

United States v. Collier, 67 M.J. 347 (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). 

(in a larceny and obstruction of justice case, the violation of appellant’s Sixth Amendment right to confrontation occurring when the military judge prohibited appellant from cross-examining the main government witness about that witness’s homosexual romantic relationship with appellant was not harmless beyond a reasonable doubt; the theory offered to defend against the larceny charge was that this witness framed appellant for the theft of the tools by buying and etching tools to look like they came from the squadron, and the theory offered to defend against the obstruction of justice charge was that appellant slashed the witness’s tire out of anger over the breakup, rather than with the intent to influence testimony; however, due to the military judge’s limitation on cross-examination of the witness, the defense counsel was able to offer only the end of a friendship as the motivation for the framing and tire slashing, as opposed to the end of a romantic or sexual relationship; this error was not unimportant in relation to everything else the factfinders considered, and thus, there was a reasonable possibility it contributed to the verdict). 

United States v. Sanders, 67 M.J. 344 (under Article 59(a), UCMJ, an error of law with respect to a sentence can provide a basis for relief only where that error materially prejudices the substantial rights of the accused). 

(the test for prejudice from the erroneous admission of evidence during the sentencing phase of a court-martial is whether the error substantially influenced the adjudged sentence). 

(during the sentencing phase of a court-martial, any error in the admission of a handwritten letter found in appellant’s pretrial confinement cell that contained a farrago of bequests, assertions, excuses, and advice, some of which attacked the military justice system and accused the military judge of favoring the prosecution, did not substantially influence the adjudged sentence and did not materially prejudice the substantial rights of appellant where the military judge stated that she would not consider the personal attack on her contained therein, where there is no indication that the military judge gave significant weight to the rest of the letter in arriving at the adjudged sentence, where appellant only received confinement for 14 years when the maximum sentence included confinement for life without eligibility for parole, and where appellant’s crimes were severe).

United States v. Gardinier, 67 M.J. 304 (in assessing harmlessness in the constitutional context, the question is not whether the evidence is legally sufficient to uphold appellant’s 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; to say that an error did not contribute to the verdict is to find that error unimportant in relation to everything else the factfinder considered on the issue in question, as revealed in the record). 

(in Confrontation Clause cases, an appellate court frequently looks to the factors set forth in Delaware v. Van Arsdall, 475 U.S. 673 (1986), to assess whether an error is harmless beyond a reasonable doubt; these factors include the importance of a 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).

(erroneous admission of (1) a videotape of appellant’s five-year-old daughter’s interview with civilian law enforcement, in which the daughter stated that appellant had touched her inappropriately (a tape which the military judge as factfinder called direct evidence that was more probative than any other evidence), (2) a videotape of appellant’s interview with civilian law enforcement and a CID agent in which he made incriminating statements, (3) statements by the daughter to a sexual assault nurse consistent with her videotaped interview, and (4) appellant’s written statement that closely paralleled the admissions he made during the videotaped interview, was not harmless beyond a reasonable doubt in a prosecution for committing indecent acts with a child under 16 years of age, where the videotapes and incriminating statements, when balanced with the remaining evidence of record, were not unimportant to the factfinder; in analyzing all of the erroneously admitted evidence and the remaining evidence of record under the Van Arsdall factors, there was a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction). 

United States v. Von Bergen, 67 M.J. 290 (Article 32, UCMJ, errors are tested on direct review for prejudice as defined by Article 59(a), UCMJ). 

(appellant was not prejudiced by the military judge’s error in not ordering an Article 32, UCMJ, investigation on a rehearing after the original offense was changed from possession of child pornography as a violation of the CPPA to possession of child pornography under the general article for conduct prejudicial to good order and discipline and service discrediting conduct, where appellant was on fair notice regarding how the offense would be amended after remand, the new offense addressed the same conduct as the original offense, the government relied on much of the same evidence as at appellant’s original court-martial, and witnesses testified about and fully described certain original documentary evidence that had been destroyed before the rehearing). 

United States v. Clayton, 67 M.J. 283 (in this case, the government did not carry its burden of showing that the error in admitting the German civilian police report into evidence was harmless beyond a reasonable doubt, where the report effectively relieved the government of its burden to present direct testimony regarding where the marijuana was recovered, how it was traced to appellant, and other necessary elements to prove that appellant possessed marijuana with the intent to distribute). 

United States v. Forney, 67 M.J. 271 (even if it were error for the military judge to reference a federal definition for child pornography that was later partially held unconstitutional by the Supreme Court -- arguably suggesting that the possession of virtual child pornography was illegal in civilian society, when it was not –- such error was harmless beyond a reasonable doubt, where there was no reasonable possibility that any such error might have contributed to appellant’s conviction for conduct unbecoming an officer; in light of the totality of the circumstances –- appellant’s receiving and possessing such images on government computers on a Navy warship underway, the discovery of the misconduct by an enlisted person in the performance of his duties, and the focus of the offense and the military judge’s instructions on the military nature of the offense -- any such error would have been unimportant in relation to everything else the members considered on the issue in question; a rational court-martial would have found appellant guilty absent the alleged error).

United States v. Goodin, 67 M.J. 158 (even if the military judge erred in admitting the testimony of appellant’s wife regarding appellant’s sexual activities with his wife and his possession of pornographic magazines, such error was harmless in a prosecution for committing an indecent act on a child and possessing child pornography, where (1) the government presented substantial evidence in support of its prosecution, including numerous images of child pornography found on appellant’s computer and the testimony of his stepdaughter, the alleged victim, (2) the defense case, on the other hand, was not particularly strong, consisting primarily of counsel’s cross-examination of the government’s witnesses, yet counsel was unable to identify any significant contradictions or gaps in the witnesses’ testimony, (3) the wife’s testimony was material as it provided the foundation for the government’s theory that appellant would commit an indecent act with his stepdaughter because of his particular sexual needs, and (4) the quality of the wife’s testimony was adequate to support the truth of the matters stated; considering these four factors, particularly the strength of the government’s case and the marginal nature of the defense case, it was unlikely that the wife’s disputed testimony substantially influenced the factfinder). 

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). 

(any error by the military judge in failing to suppress appellant’s confession that was allegedly obtained in violation of his Fifth Amendment right to counsel was harmless beyond a reasonable doubt, where none of the admissions made by appellant in his confession related to any of the offenses of which the members found him guilty, and the military judge gave the appropriate limiting instruction on the use of uncharged misconduct and the proper spillover instruction regarding evidence of multiple charges).

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).   

(in the context of this case, the absence of a mistake-of-fact instruction on the indecent assault specification was not harmless beyond a reasonable doubt because that instruction resulted in a finding of not guilty when given with respect to an indecent exposure specification involving the same victim in the same setting; had the military judge given a mistake-of-fact instruction informing the panel to consider the prior relationship and the circumstances leading up to the indecent assault incident, it is not clear beyond a reasonable doubt that a rational jury would have found appellant guilty absent the error; the missing instruction essentially undercut a defense theory and could very well have contributed to the finding of guilty). 

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). 

(a Sixth Amendment error in admitting an out-of-court statement that appellant’s wife made to the military police regarding appellant’s assault on her and their infant son was harmless beyond a reasonable doubt, where the statement was unimportant in relation to everything else the military judge considered on the issue, the statement was cumulative, other evidence corroborated the statement, the defense was permitted to impeach the wife’s credibility with a prior conviction for fraud, and the government’s case was quite strong, including eyewitness testimony, corroborating physical injuries, and appellant’s partial confession; the statement did not contribute to the verdict as it was unimportant in relation to the other evidence of record). 

(the effect of the convening authority’s action in this case is that confinement in excess of forty-five days was suspended and no other confinement was approved; in contradiction to this action, appellant served 223 days of confinement that both the parties and the CCA agree were suspended by the convening authority; within the military justice system, punishment suspended by a convening authority may not be executed; the prejudice in this case is both obvious and apparent and may not be attenuated by facts predating the final action of the convening authority; holding otherwise would neither give effect to a clear and unambiguous action by the convening authority). 

2008 (Transition)

United States v. Czachorowski, 66 M.J. 432 (the military judge’s error in admitting into evidence a child victim’s out-of-court statements under the residual hearsay exception of MRE 807 materially prejudiced appellant’s substantial rights under Article 59(a), UCMJ, where appellant was convicted of indecent acts with that victim based, in large part, on that evidence). 

United States v. Bartlett, 66 M.J. 426 (error in exempting certain classes of officers from court-martial service pursuant to an Army regulation was harmless in a case where appellant pleaded guilty and the court-martial panel only considered the sentence, where (1) there was no evidence that the Secretary of the Army enacted the regulation with an improper motive; (2) there was no evidence that the convening authority’s motivation in detailing the members he assigned to appellant’s court-martial was anything but benign -- the desire to comply with a facially valid Army regulation; (3) the convening authority who referred appellant’s case to trial was a person authorized to convene a general court-martial; (4) appellant was sentenced by court members personally chosen by the convening authority from a pool of eligible officers; (5) the court members all met the criteria in Article 25, UCMJ; and, (6) as the military judge found, the panel was well-balanced across gender, racial, staff, command, and branch lines). 

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. Travis, 66 M.J. 301 (appellant did not suffer any material prejudice to a substantial right from the alleged failure of the SJA to submit clemency matters to the convening authority prior to his initial action and from the SJA’s subsequent failure to forward them to the convening authority for over a year, where there was a second action taken by the same convening authority after his consideration of appellant’s clemency submission which demonstrated clearly and convincingly that even if the clemency materials had been considered at the time of the initial action, appellant would not have been afforded clemency; under these circumstances, any possible error relating to the post-trial processing of clemency materials in this case was harmless, especially where the CCA reduced the period of confinement when it granted sentence relief to address post-trial delay). 

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). 

(the convening authority’s failure to transfer members named in previous special convening orders to the final special order convening appellant’s court-martial was administrative error, rather than jurisdictional error, that did not materially prejudice the substantial rights of appellant, where none of the members who participated in the court-martial was an interloper, where each member was selected by the convening authority to consider the charges against appellant, where there was no evidence that the convening authority excused any of the members who sat on appellant’s court-martial, where there was also no evidence that the convening authority withdrew the charges in order to refer them to a new court-martial, and more important, where the record reflects that the members named in final special order were selected to bring the court-martial up to quorum and were not selected to serve as a separately constituted court-martial). 

United States v. Bridges, 66 M.J. 246 (under Article 59(a), UCMJ, an error of law regarding the sentence does not provide a basis for relief unless the error materially prejudiced the substantial rights of the accused). 

(even assuming that a letter from the brig officer reporting that appellant had a negative attitude while in confinement and had violated several prison regulations was erroneously admitted to rebut appellant’s presentencing good character evidence, the alleged error was not prejudicial under Article 59(a), UCMJ, where the military judge was the sentencing authority and there was no indication that the judge gave significant weight to the brig violations noted in the letter, particularly in light of the fact that the record contained ample additional evidence in aggravation from appellant’s personnel records and the testimony of witnesses; any error in the admission of the brig letter did not substantially influence the adjudged sentence, and appellant failed to demonstrate that any error materially prejudiced his substantial rights). 

United States v. Brooks, 66 M.J. 221 (structural errors involve errors in the trial mechanism so serious that a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence; they are not amenable to harmless error review and will always result in reversal if properly preserved for appeal; generally, for all other errors, an appellant must show an effect on the proceedings or prejudice to substantial rights; there is a strong presumption that an error is not structural). 

(the Supreme Court has recognized two tests for structural error: (1) when a court is faced with the difficulty of assessing the effect of the error; and, (2) when harmlessness is irrelevant).

(appellant’s claim that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel did not fall within the category of structural error, where appellant was not deprived of all opportunities to speak with his appellate counsel and the degree of prejudice could be assessed; appellant could not articulate what he deleted from the communications with his counsel and his silence suggested that little, if anything, was chilled from his attorney-client conversations; similarly, a refusal to make certain undefined communications, especially when the appellant had ample alternative opportunities to speak freely with counsel, did not, as a general matter, constitute prejudice). 

 
(even assuming some interference with his attorney-client relationship, appellant did not establish that brig personnel violated his Sixth Amendment right to appellate counsel by monitoring his telephone conversations with his appellate counsel and by seizing his privileged correspondence with his counsel, absent a showing of prejudice; appellant did not cite what issues he wanted to raise before the CCA but was unable to do so because of the chilling effect the actions of brig officials had on his attorney-client communications).        

United States v. Larson, 66 M.J. 212 (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). 

(assuming deficient performance of defense counsel for failing to consult with appellant on the strategic decision to concede guilt in argument to one of the offenses charged, appellant was not prejudiced and there was no ineffective assistance of counsel, where the evidence supporting the charged offenses was overwhelming, no plausible defense to the conceded offense was raised by appellant, appellant did not argue that his defense at trial to the remaining charges was in any way undercut by counsel’s strategic choice, and the military judge instructed the members three times that the arguments of counsel were not evidence). 

United States v. Hall, 66 M.J. 53 (an appellate court evaluates claims of prejudice from an 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; the same four-pronged test is applied for the erroneous admission of government evidence as for the erroneous exclusion of defense evidence).    

(an evidentiary error in allowing a non-expert government investigative agent to provide expert testimony that burn injuries suffered by an infant victim were not accidental was harmless, where the government’s case was strong, if not overwhelming, the defense case was weak, even implausible, and the quality of the agent’s testimony was duplicative when compared to that of the actual expert in the case, who not only testified to a firm belief that the injuries were non-accidental, but also suggested that the cause of the injuries was the child being held in hot water; in light of the qualitative difference in professional background and expertise, as well as the overlap in testimony between the actual expert and the agent, the agent’s testimony regarding nonaccidental burn indications was not qualitatively significant in the context of this case; as a result, the government met its burden of demonstrating that the agent’s testimony did not have a substantial influence on the findings). 

 
United States v. Harcrow, 66 M.J. 154 (where a case involves constitutional error, the question is whether the government has shown that the error was harmless beyond a reasonable doubt).

 
(the error in admitting inadmissible hearsay in the form of laboratory reports documenting the presence of cocaine and heroin on drug paraphernalia seized from the accused’s residence in violation of the Confrontation Clause was plain and obvious, but it was harmless beyond a reasonable doubt and therefore did not violate a substantial right, where the accused admitted that a jeweler’s bag in his home contained cocaine and a hypodermic syringe contained heroin, and his admissions were corroborated by the testimony of the arresting officers; moreover, the accused did not demonstrate what, if anything, he would have done at trial if he had been given the opportunity to confront the laboratory personnel about their reports).

United States v. 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). 

 
(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). 

(despite the erroneous authentication of the record of trial by trial counsel without an adequate explanation for the use of a substituted authority, appellant failed to demonstrate material prejudice to his substantial rights under Article 59(a), UCMJ, where he failed to show that the error regarding the explanation for using a substitute produced an inaccurate record, or otherwise prejudiced his right to submit a brief under Article 38, UCMJ, to obtain post-trial clemency under Article 60, UCMJ, to present an issue to the court of criminal appeals under Article 66, UCMJ, or to raise an issue of law before CAAF).  

United States v. Freeman, 65 M.J. 451 (if an appellate court finds a confession involuntary, it must set aside the conviction unless it determines the error in admitting the confession was harmless beyond a reasonable doubt). 

(assuming the admission on the merits of three acts of uncharged misconduct toward the victim was error, the error was harmless where the three acts were relatively minor and, in the context of the entire record, and in particular appellant’s confession, such error did not have a substantial influence on the members’ verdict).

United States v. Hunter, 65 M.J. 399 (not every error constitutes a material prejudice to a substantial right warranting relief under Article 59(a), UCMJ). 

(where there is no evidence or representation before an appellate court that appellant misunderstood the terms of his agreement, that the operation of any term was frustrated, or that his participation in the agreement was anything other than wholly voluntary, the court will not find prejudice). 

(although the military judge legally erred in failing to explain the pretrial misconduct provision of the PTA to appellant prior to accepting his guilty plea, despite the error, appellant was not entitled to relief because he failed to establish the material prejudice to a substantial right required under Article 59(a), UCMJ; there is no evidence that appellant misunderstood the meaning and effect of the misconduct provision within his PTA or that his understanding of it prejudiced his ability to make a fully informed decision to plead guilty). 

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 erroneous admission of two testimonial hearsay statements that alleged that appellant’s wife was actually his biological sister was harmless beyond a reasonable doubt in a court-martial where appellant was charged with making a false official statement and theft of government property as a consequence of his fraudulent collection of basic allowance for housing as a married servicemember while he was not legally married, where the prosecution evidence was strong and the hearsay statements were cumulative of documentary evidence reflecting that the alleged wife was actually the natural daughter of appellant’s parents; additionally, other evidence demonstrated that there were no birth records for the maiden name appellant claimed for his wife and that the birth certificate appellant submitted in support of her visa application was apparently fraudulent; in view of the record as a whole, the testimonial hearsay statements did not contribute to appellant’s conviction).

United States v. Custis, 65 M.J. 366 (error in admitting privileged communications between appellant and his wife was not harmless with respect to appellant’s conviction for soliciting the offense of obstruction of justice, where the wife’s testimony regarding her conversations with her husband was clearly material to the members’ decision to find appellant guilty of the solicitation specification; it was only those conversations that revealed that it was appellant who initiated the conversation regarding the scheme to replace the blood tests, and evidence of those conversations that revealed it was appellant who suggested that the blood be drawn from precisely the same place; there was no other evidence admitted to prove that it was appellant who solicited his wife’s help in this crime, as opposed to his wife who solicited appellant’s participation; given the pivotal importance of the privileged communications to the solicitation charge, the members may have been substantially influenced by the erroneously admitted evidence, so appellant’s solicitation conviction must be reversed). 

(the evidentiary error in admitting privileged communications between appellant and his wife was harmless as to the other non-solicitation offenses where none of appellant’s remaining convictions turned on who instigated the other’s participation in the underlying obstruction offense; in light of the testimony of appellant’s wife as to both the actions she observed and the conduct in which she and appellant engaged in together, the erroneously admitted evidence did not have a substantial influence on the members with respect to those offenses). 

(the evidentiary error in admitting privileged communications between appellant and his wife was harmless as to sentence where the military judge found the charges of conspiracy to obstruct justice and solicitation to obstruct justice multiplicious for sentencing and instructed the members to consider them as one offense in determining an appropriate sentence; where there is no reason to question that the panel did not do so in this case, the offense of solicitation to obstruct justice had no impact on appellant’s sentence).

2007

United States v. Resch, 65 M.J. 233 (the military judge’s errors in giving the accused inconsistent advice on what the military judge could consider from the stipulation of fact on the merits of the greater offense of desertion and in failing to clarify inconsistent paragraphs in the stipulation as to what he could consider on the merits, were materially prejudicial to the accused’s substantial rights; without the accused’s statements and the facts admitted in the stipulation, the government’s case on desertion consisted solely of testimony from the accused’s company commander that the first time he saw the accused at a formation in his unit following his absence was on a later termination date; this testimony was insufficient to establish the accused’s intent to remain away permanently where the accused’s presence at formation would seem to bely an intent to remain away permanently; this testimony was also insufficient to establish the later termination date where viewing the evidence in the light most favorable to the prosecution, the company commander’s testimony of when he first noticed the accused in formation did not provide legally sufficient evidence that would permit a rational trier of fact to conclude beyond a reasonable doubt that the accused was returned to military control on that date). 

United States v. Erickson, 65 M.J. 221 (in assessing prejudice under the plain error test where prosecutorial misconduct has been alleged, an appellate court looks at the cumulative impact of any prosecutorial misconduct on the accused’s substantial rights and the fairness and integrity of his trial; the best approach involves a balancing of the following three Fletcher factors:  (1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction). 

(in assessing prejudice in a judge alone trial in which prosecutorial misconduct during the trial counsel’s sentencing argument was alleged to have resulted in plain error, an appellate court considers the Fletcher factors to determine whether the trial counsel’s comments, taken as a whole, were so damaging that the court cannot be confident that appellant was sentenced on the basis of the evidence alone).

(trial counsel’s comparison of the accused to Hitler and Osama bin Laden during his sentencing argument in a child sexual abuse case did not result in material prejudice to the accused’s substantial rights and therefore did not result in plain error, where (1) the misconduct was not severe considering that the improper comments amounted to less than a single page out of a 22-page sentencing argument, did not permeate the entire argument, and were made in the context of a permissible theme – that unseen evil is worse than open and obvious evil; (2) the military judge in this judge alone trial is presumed to be able to distinguish between proper and improper sentencing arguments and there is nothing in the record that reflects that the military judge was biased or in any way swayed by the comments; and (3) the weight of the evidence clearly supports the determination that the accused would have received the same sentence irrespective of trial counsel’s improper comments considering that the evidence revealed not only that the accused had sexually abused his two daughters over a sustained period, but that he manipulated them into believing that the conduct was appropriate and that this abuse left his children emotionally scarred).     

United States v. Harrow, 65 M.J. 190 (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; four factors are considered:  (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).

(in a murder case based on the shaken baby syndrome, the military judge’s error in preventing the defense from impeaching the testimony of the baby’s father with extrinsic evidence of prior inconsistent statements regarding whether the baby was crying after the accused left the house, was harmless, where the government’s case against the accused was convincing, where the defense’s case was exceptionally weak, where the materiality of the excluded extrinsic evidence of prior inconsistent statements was for impeachment only, where the defense effectively impeached the father with respect to the prior inconsistent statements by intrinsic evidence, where the military judge gave an instruction regarding inconsistent statements, reiterating the point that the father’s credibility was at issue, where the combination of cross-examination and argument by the defense impeached the father’s credibility and ability to recall, and where the addition of the extrinsic evidence would have been cumulative, would not have changed the arguments proffered by the defense to the members, and would not have had a substantial influence on the members’ verdict; under the facts of this case, it cannot be said that a thorough impeachment of the father’s credibility and recollection was not completed even absent the extrinsic evidence). 

(in a murder case based on the shaken baby syndrome, any error stemming from the admission of uncharged misconduct evidence under MRE 404(b) in the form of testimony that appellant had previously thumped the baby hard enough to make the baby scream, that appellant flicked the baby on the body to punish her if she reached for something, and that appellant called the baby stupid and ugly, pulled at the baby by jerking her arm, and grabbed her by the cheeks and pinched them hard when she disobeyed, did not substantially prejudice appellant in view of the weight of the remaining evidence and the weakness of the defense case). 

(in a murder case based on the shaken baby syndrome, any error in the admission of profile evidence in the form of testimony by an expert witness in the fields of developmental and forensic psychiatry that the most common person to fatally abuse a child is a biological parent and that the most common trigger for baby shakings is persistent crying, was harmless, where the case focused on which parent was responsible for the injury, and the profile evidence applied equally to each of them and placed them both squarely within the profiled category). 

(although the CCA abused its discretion in reassessing a sentence to include a reduction to E-1 that was not adjudged at trial, where appellant was already an E-1, it was an increase in punishment only in the most technical of senses, since the reduction was void ab initio and a nullity; this abuse of discretion was a harmless error without any practical import or any prejudice; no logic suggests that the CCA would have decreased some other portion of the sentence reassessment if it understood that another portion of the sentence, the reduction in rank, was not available to it). 

United States v. Moran, 65 M.J. 178 (before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt; this will depend on whether there is a reasonable possibility that the evidence or error complained of might have contributed to the conviction; 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; it is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record).    

(a special agent’s reference on direct examination to the accused’s refusal to consent to the collection of his body hair, which, under the Fourth Amendment, he had the right to deny, was harmless beyond a reasonable doubt because other evidence that was properly admitted was sufficient to dispel any notion that agent’s statement “tipped the balance” against the accused where the accused’s drug offense convictions were supported by evidence provided by six witnesses who testified against him; furthermore, there was substantial circumstantial evidence regarding the accused’s consciousness of guilt that was properly before the members, namely evidence that the accused shaved all of his body hair, which prevented the government from testing his hair for drug use; independent evidence of the accused’s guilt was overwhelming -- a conclusion that rendered any error harmless beyond a reasonable doubt). 

(a police officer’s testimony on direct examination about the accused’s travel to see his attorney and that the accused had invoked his right to counsel was harmless beyond a reasonable doubt because other evidence that was properly admitted was sufficient to dispel any notion that officer’s statement “tipped the balance” against the accused where the accused’s drug offense convictions were supported by evidence provided by six witnesses who testified against him; furthermore, there was substantial circumstantial evidence regarding the accused’s consciousness of guilt that was properly before the members, namely evidence that the accused shaved all of his body hair, which prevented the government from testing his hair for drug use; independent evidence of the accused’s guilt was overwhelming -- a conclusion that rendered any error harmless beyond a reasonable doubt). 

(a policeman’s testimony on direct examination about the accused’s refusal to consent to have his blood drawn was harmless beyond a reasonable doubt because the evidence of drunk driving was otherwise overwhelming and a test of the accused’s blood that was lawfully drawn under a warrant indicated a blood alcohol level of .25 percent ethanol). 

(trial counsel’s inaccurate and improper statement, in the closing part of his findings argument to the members, commenting on the accused’s invocation of his right to counsel, did not prejudice the accused’s substantial rights, where the prejudicial impact of trial counsel’s comments was dampened by the minor part they played in the midst of a nineteen-page argument and where other evidence that was properly admitted was sufficient to dispel any notion that the trial counsel’s statement “tipped the balance” against the accused where the accused’s drug offense convictions were supported by evidence provided by six witnesses who testified against him; furthermore, there was substantial circumstantial evidence regarding the accused’s consciousness of guilt that was properly before the members, namely evidence that the accused shaved all of his body hair, which prevented the government from testing his hair for drug use; independent evidence of the accused’s guilt was overwhelming -- a conclusion that rendered any error harmless beyond a reasonable doubt). 

United States v. Key, 65 M.J. 172 (at a post-trial hearing to determine whether a government informant withheld from the defense impeachment evidence regarding the informant’s possible financial motive for her testimony and whether that affected the outcome of appellant’s trial and whether appellant was entitled to a new trial, the military judge’s error in not allowing the trial defense counsel to testify as to what transpired during that counsel’s pretrial interview of the informant was not prejudicial where the defense counsel’s affidavit concerning this interview did not significantly impeach the informant’s testimony; the informant’s knowledge, without more, of the eventual possibility of being paid for her work as an informant had limited impeachment value, especially when it is not clear from the defense counsel’s affidavit that his questions were specific enough to elicit that she had; in light of all the other pertinent evidence, including the testimony of other witnesses as to appellant’s demeanor at the collection site and the positive urinalysis evidence itself, the error was harmless -- it did not substantially influence the outcome of the case).

United States v. Lewis, 65 M.J. 85 (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). 

(military judge’s failure to give complete and correct self-defense instruction created a constitutional error, requiring a determination as to whether the error was harmless beyond a reasonable doubt; in assessing prejudice under this standard, the government must prove, beyond a reasonable doubt, that the instructional error did not contribute to the members’ guilty findings).

(military judge’s failure to give complete and correct self-defense instruction was not harmless beyond a reasonable doubt, where the incomplete instruction essentially undercut the defense theory and could very well have contributed to the finding of guilty; the members were told that if they found the accused was engaged in mutual combat or provoked the fight, he could not assert self-defense, if he did not first withdraw from the original fight; this incomplete instruction prevented the accused from fully asserting that he rightfully defended himself (1) after an escalation of violence; and (2) when he was incapable of withdrawing in good faith).

United States v. Schroder, 65 M.J. 49 (instructional error regarding the use of propensity evidence in child molestation case was harmless beyond a reasonable doubt with respect to the charge of indecent acts with a child, given the members’ finding of guilty only on the lesser included offense of indecent acts with another, the totality of the instructions provided by the military judge, and the detailed and credible nature of the victims’ testimony).

(instructional error regarding the use of propensity evidence in child molestation case was harmless beyond a reasonable doubt with respect to the charge of rape, given the strength of the government’s case; in addition to the eyewitness testimony regarding charged and uncharged misconduct, the government’s evidence included several statements by appellant to various law enforcement agencies, including an admission and corroborating details). 

United States v. Roberson, 65 M.J. 43 (military judge’s erroneous exclusion of testimony that supported the accused’s affirmative defense of duress was not constitutional because the accused presented other evidence to establish virtually the same facts in support of his duress defense, and thus he was not denied a meaningful opportunity to present a complete defense; this non-constitutional error must then be tested for harmlessness under Article 59(a), UCMJ; here, the erroneous exclusion of testimony did not materially prejudice the accused’s substantial rights, where the government’s case was strong, the duress defense was markedly less than compelling, and the excluded evidence was of no better quality than that which was already before the finder of fact, nor would it have strengthened the duress defense by remedying its deficiencies).

United States v. Davis, 64 M.J. 445 (although a military judge erred in improperly closing a portion of an Article 32 proceeding during the testimony of two alleged victims of sexual offenses, the error was harmless beyond a reasonable doubt where (1) the defense counsel had access to written statements by the witnesses and had interviewed the witnesses prior to trial; (2) the defense counsel had cross-examined the witnesses at the Article 32 hearing; (3) the defense counsel cross-examined the witnesses in the subsequent public trial; (4) the witnesses recounted their allegations at various times before and during the trial and their individual accounts remained consistent throughout the process; (5) there was no evidence that the closure of the Article 32 hearing impeded the defense counsel’s trial preparation or that the testimony of the witnesses would have changed had there been a second, open Article 32 proceeding; and (6) the defense counsel was able to effectively cross-examine the witnesses, resulting in acquittal of both alleged rapes and one indecent assault).    

United States v. Rankin, 64 M.J. 348 (even if the admission of the deserter/absentee arrest warrant, form DD-553, violated the Confrontation Clause because it was testimonial hearsay, the error was harmless beyond a reasonable doubt, where any information contained in it that was relevant to the elements of the offense of unauthorized absence was cumulative with the same type of information contained in the other exhibits that were not testimonial evidence). 

United States v. Green, 64 M.J. 289 (even if the military judge erred in making incidental religious references during his statement on the reasons for his sentence, any error was harmless, where the military judge’s sentencing remarks primarily discussed appropriate sentencing considerations, where in context and in the absence of defense objection, his remarks reflected a judge attempting to address the accused’s sentencing case and did not reflect an effort to interject religion as either a sentencing factor or a matter of bias, and where the sentence did not reflect prejudicial consideration of extraneous factors). 

United States v. McAllister, 64 M.J. 248 (the military judge’s constitutional error in denying the accused’s request for expert DNA assistance and refusing to permit a re-test of certain evidence for the presence of DNA was not harmless beyond a reasonable doubt; the re-testing revealed the presence of DNA from three unidentified individuals on the victim’s fingernails, and the new DNA evidence would have allowed the defense the opportunity to raise a reasonable doubt). 

(in this case, the government met a critical element of its burden of proof by showing that the graphic computer images were real through scientific analysis and expert testimony; appellant, on the other hand, was denied his request for expert assistance, the asset necessary for him to challenge that government evidence and prepare a defense; denying appellant the resources necessary to prepare and present a defense was prejudicial error). 

2006

United States v. Finch, 64 M.J. 118 (even assuming there was a material variance between the pleadings and the findings, appellant failed to show prejudice stemming from that error, where the change in the description of the alleged overt acts taken in furtherance of that conspiracy did not prejudice appellant -- that is, it neither misled appellant in preparing or presenting his defense, nor failed to protect him against a subsequent prosecution for the same misconduct; because appellant failed to establish any prejudice by demonstrating that he was misled as to (1) what he had to defend against at trial, or (2) whether he could be tried again for the same offense or a similar one, there was no plain error). 

(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 (even assuming that the trial counsel’s closing argument improperly commented on appellant’s right to invoke his Article 31, UCMJ, rights during interrogation and his constitutional right to consult with counsel, any error was harmless beyond a reasonable doubt, where the matter was raised by trial defense counsel to support the defense theory of the case that appellant’s admission to one incident of marijuana use was fabricated in response to false promises of leniency and coercion, and the strength of the government’s case did not hinge upon appellant’s confession to one use of marijuana). 

United States v. Gosser, 64 M.J. 93 (a two-year delay in commencing review under Article 66(c), UCMJ, that violated appellant’s right to due process was harmless beyond a reasonable doubt where there was no showing that appellant was prejudiced). 

United States v. Long, 64 M.J. 57 (the government’s use at trial of the accused’s e-mails seized without a warrant from a government computer system to support the unlawful drug use charges against the accused was not harmless error beyond a reasonable doubt, where the prosecution witnesses were all admitted drug users and potential accomplices who had incentives to testify for the government, and the trial counsel used the constitutionally inadmissible evidence as a cornerstone of his opening statement and closing argument). 

United States v. Rodriguez-Rivera, 63 M.J. 372 (whether or not there was error in failing to serve trial counsel’s comments on appellant’s clemency request upon the defense, appellant failed to sustain his burden of making a colorable show of prejudice where appellant’s assertions regarding his proposed rebuttal to trial counsel’s statements were inaccurate;).

(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. Toohey, 63 M.J. 353 (the military judge’s error in preventing appellant from presenting evidence of his character for peacefulness did not deprive him of evidence that was material and favorable to his defense and thus was not of constitutional dimension requiring the utilization of the constitutional harmless beyond a reasonable doubt standard to test the effect of that error; this was not a case in which character evidence for peacefulness went to the heart of appellant’s core defense that the sexual activity between him and the victim was consensual). 

(appellant was not prejudiced with respect to the assault charge by the military judge’s error in excluding character evidence for peacefulness, where the evidence of guilt was overwhelming and countered only by an implausible claim that the victim, a woman of far less physical stature than appellant, became aggressive and appellant responded in a reasonable manner to protect himself; appellant admitted that he struck the victim, and the excessive violence perpetrated upon the victim was graphically demonstrated by photographs depicting her injuries and the severity of the beating inflicted upon her). 

(appellant was not prejudiced with respect to the rape charge by the military judge’s error in excluding character evidence for peacefulness, where the pivotal question on guilt was when appellant applied force and for what purpose, not whether he did so; appellant’s admission that he struck the victim minimized the materiality of character for peacefulness evidence; moreover, if character for peacefulness evidence might have had some slight value, appellant received that value when his ex-wife testified that he had never been violent with her). 

(considering the egregious delay of over six years between the completion of the court-martial and the decision of the court of criminal appeals and the adverse impact such a delay has upon the public perception of fairness in the military justice system, the deprivation of appellant’s due process right to a speedy review and appeal was not harmless beyond a reasonable doubt). 

United States v. Lewis, 63 M.J. 405 (to find that the appearance of command influence has been ameliorated and made harmless beyond a reasonable doubt, the government must convince an appellate court that the disinterested public would now believe the accused received a trial free from the effects of unlawful command influence). 

(the appearance of unlawful command influence created by the orchestrated efforts of the trial counsel and staff judge advocate to force the recusal of the military judge was not cleansed by the detailing of a new military judge from another circuit or by that judge’s remedial action which included the disqualification of the SJA, the barring of the SJA from sitting in the courtroom, and the appointment of a new convening authority; the government wanted to ensure that a given military judge, properly detailed and otherwise qualified, would not sit on the accused’s case; in the end, the government achieved its goal through unlawful command influence; to this point, from an objective standpoint, the government has accomplished its desired end and suffered no detriment or sanction for its actions). 

United States v. Dearing, 63 M.J. 478 (if instructional error is found, because there are constitutional dimensions at play, appellant’s claims must be tested 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). 

(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). 

(the military judge’s error in failing to instruct the members on the concept of escalation of the conflict as it related to self-defense was not harmless beyond a reasonable doubt, where the defense theory of escalation of the conflict was a vital point in the case, and where the instructional error eviscerated the accused’s self-defense theory rooted in the concept of escalation of the conflict; because of the error, the accused was denied the opportunity to argue that he had a right to exercise self-defense due to the escalating violence being perpetrated against him; moreover, without a correct self-defense instruction, the members did not have guideposts for an informed deliberation). 

(there was no danger of prejudicial spillover from appellant’s murder and aggravated assault offenses to the obstruction of justice offense; the focus of concern on spillover is whether overwhelming proof on an offense that is set aside will “spill over” and prejudice a legitimate defense to another; in this case, there was no such danger in light of appellant’s testimony on the merits that was tantamount to a judicial confession to obstruction of justice; appellant effectively admitted that he was attempting to have his friend present a false alibi and thereby thwart the police investigation into the stabbing incident; because of appellant’s testimony, his conviction of the offense of obstruction of justice was independent of and unaffected by either the murder or aggravated assault offenses, and there was no prejudicial spillover that tainted the guilty finding to obstruction of justice). 

(the due process violation for denying speedy appellate review in this case was not harmless beyond a reasonable doubt where there were two forms of actual prejudice; first, appellant endured oppressive incarceration because he was denied a timely review of his meritorious claim of legal error for over six years while he was incarcerated; and second, the lack of institutional vigilance resulted in appellate delay that effectively denied appellant his statutory right to the free and timely professional assistance of detailed military appellate defense counsel). 

United States v. Allison, 63 M.J. 365 (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). 

(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). 

(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 an 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). 

(assuming that a delay of over five years to complete the accused’s appeal of right denied him his right to speedy review and appeal, the error was harmless beyond a reasonable doubt where there was no merit in the accused’s other issue on appeal and the totality of the circumstances of this case were considered). 

United States v. Barnett, 63 M.J. 388 (in a prosecution arising from the accused’s alleged sexual harassment of four trainees, the erroneous admission of evidence of uncharged misconduct that the accused had engaged in escalating verbal harassment of a coworker, resulting in that coworker explicitly telling the accused to stop calling her and to stop making inappropriate comments was harmless where the government’s case was strong and the defense did not present a compelling case; all four of the complainants testified, there were similarities between their respective rendition of events, there was nothing in the record to indicate that these four individuals were not credible witnesses, all four denied that the encounters were consensual, and each recounted some type of nonverbal manifestation of their unwillingness to be touched by appellant; finally, the evidence of the uncharged misconduct was of marginal importance given the difference in contexts, the fact that is allegedly occurred three years earlier, and the defense brought in two witnesses who rebutted the evidence). 

United States v. Reyes, 63 M.J. 265 (the improper admission of extraneous material during the sentencing phase of appellant’s trial, to include pictures that the military judge had earlier determined were inadmissible and appellant’s pretrial offer to plead guilty to charges on which the members had just returned a verdict of acquittal, and the military judge’s erroneous instruction on the maximum punitive discharge that could be imposed by the members, had a prejudicial impact on sentencing).

United States v. Tanner, 63 M.J. 445 (the admission during sentencing of appellant’s prior conviction that was then on appeal but subsequently reversed did not constitute prejudicial error; in the present case, the MRE 414 predisposition evidence underlying the reversed conviction would have been admissible under RCM 1001(b)(4), subject to balancing; because the evidence was admitted without objection as a prior conviction under RCM 1001(b)(3)(A), the military judge did not conduct a balancing test in the context of MRE 414; however, in the context of the evidence at issue, the absence of balancing under MRE 403 and MRE 414 did not constitute prejudicial error; the information as to appellant’s prior misconduct offered at his trial depicted appellant’s sexual molestation of a member of his family -- his fifteen-year-old stepdaughter -- during the same period of time as he committed the offenses of which he now stands convicted, which involved sexual abuse of another member of his family -- his ten-year-old biological daughter; under the circumstances of this case, including appellant’s concurrent sexual abuse of two different minor members of his family, the absence of balancing under MRE 403 and MRE 414 during sentencing was harmless beyond a reasonable doubt). 

United States v. Osheskie, 63 M.J. 432 (if there has been a denial of due process because of post-trial or appellate delay, 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. Thompson, 63 M.J. 228 (an appellate court conducts a de novo review to determine whether a nonconstitutional error in admitting evidence is prejudicial to an accused’s substantial rights, and 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)
 

United States v. Moss, 63 M.J. 233 (if a military judge abused his discretion in an evidentiary ruling that violated an accused’s Sixth Amendment’s right to confrontation, the case will be reversed unless the error is harmless beyond a reasonable doubt). 

(in determining whether or not the erroneous exclusion of evidence is harmless, an appellate court considers: 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). 

(the erroneous exclusion of evidence that the alleged child victim had a motive to fabricate rape allegations against the accused was not harmless beyond a reasonable doubt where the case was a credibility contest between the accused and the alleged child victim, and the ruling prevented the defense from attacking the alleged child victim’s credibility; as a result of the military judge’s erroneous ruling, the defense had no way of showing bias or motive to misrepresent, and the defense lost its ability to attack the government’s only evidence against the accused; it is impossible to say whether the evidence that could have been used to attack the credibility of the alleged child victim would have raised some doubt as to whether the alleged child victim’s version of the event was accurate; the military judge’s ruling essentially deprived the accused of his best defense, which was to demonstrate the alleged child victim’s bias and to meaningfully challenge her credibility; because the excluded evidence may have tipped the credibility balance in the accused’s favor, the error was not harmless beyond a reasonable doubt). 

United States v. Brisbane, 63 M.J. 106 (the military judge’s error in admitting an unwarned statement that the accused gave to the Family Advocacy treatment manager concerning an incident involving his eight-year-old stepdaughter was harmless beyond a reasonable doubt, where the accused repeated the same information and more to an OSI agent six weeks later, and the subsequent statement was voluntary under the circumstances and admissible).

United States v. Cohen, 63 M.J. 45 (the military judge’s error in admitting unwarned statements that appellant made to the IG regarding his taking photographs of a rape incident in a hotel did not prejudice appellant where eyewitnesses placed appellant in the hotel room, the prosecution presented the photographs taken by appellant during the incident, and none of what appellant told the IG implicated appellant in the indecent act he was convicted of committing). 

United States v. Dobson, 63 M.J. 1 (the military judge’s error in excluding the proposed testimony of witnesses that the victim threatened to kill her on two occasions was prejudicial with respect to the issue of premeditation in the court-martial of appellant for premeditated murder of her husband; the key element of the government’s strategy was to convince the panel that they could discount the expert testimony on the impact of spousal abuse on appellant on the grounds that they should treat appellant’s entire testimony regarding abuse as a lie, and if the military judge had permitted the corroborating testimony of the excluded witnesses, the government would not have been able to make that argument).

United States v. Quintanilla, 63 M.J. 29 (prejudice under the witness sequestration rule, MRE 615, is determined by considering whether a witness’s testimony was affected by the trial proceedings that the witness heard; in this case, any error in allowing witnesses who were relatives of the victim to remain in the courtroom during the findings phase of the trial was harmless, where the witnesses testified only on sentencing, and even if their testimony was altered by what they heard at trial, the effect would not have been relevant to the members’ determination of guilt and the sentence was being reversed on other grounds). 

United States v. Wolford, 62 M.J. 418 (if instructional error is found and there are constitutional dimensions at play, the instructional claims must be tested 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 the accused’s conviction or sentence). 

(in this case, the military judge erred in his affirmative defense instruction with respect to sending, receiving, and reproducing child pornography by using the phrase “conveys the impression,” language found by the Supreme Court to be unconstitutional; however, this error was harmless beyond a reasonable doubt where there was no evidence in the record of a possible affirmative defense and the defense counsel agreed that no instruction was needed).

United States v. Gaston, 62 M.J. 404 (the military judge’s error in finding the accused guilty of a UA terminated by apprehension rather than a UA terminated by surrender was harmless as to sentencing where this change had no impact on the maximum authorized sentence in this case which was limited by the jurisdiction of a SPCM and where in arguing on sentencing, trial counsel did not focus on the nature of the accused’s return to military control). 

United States v. Gonzalez, 62 M.J. 303 (harmless beyond a reasonable doubt is a high standard, but it is not an impossible standard for the government to meet). 

(the government’s failure in a urinalysis drug use case to turn over a laboratory discrepancy report is error and will be treated as prejudicial error when the other available evidence does not constitute independent evidence of illegal drug use; where there is sufficient independent evidence of illegal drug use, the government’s error may be treated as harmless). 

(in this drug use case, the government’s failure to turn over a laboratory discrepancy report was erroneous, but the error was harmless beyond a reasonable doubt where in addition to the positive drug test, the prosecution introduced independent evidence of drug use including evidence that appellant had drug paraphernalia associated with the drug both in his car and at his work station, that he had used this paraphernalia, that he admitted that he had attended at least one rave party and had fliers for thirteen rave parties in his car, and that he also admitted to prior drug use and to possession; although the missing discrepancy report may have raised some questions about the accuracy of the testing process at the lab, appellant’s urine sample was subjected to four different tests, each of which showed positive for drug use; when the missing report is balanced with the evidence arrayed against appellant, the scales tip strongly in favor of his conviction; furthermore, although the discrepancy report was not produced, the defense counsel had sufficient information to attack the reliability of the laboratory testing process when during the cross-examination of the government expert, the defense counsel elicited testimony that approximately two percent of internal blind aliquots were reported as false positives or with other incorrect results; while the government’s failure to produce the discrepancy report remains error, the evidence the defense would have introduced if it had the discrepancy report would have been to some degree cumulative of the overall false positive rate already in evidence; accordingly, it is unlikely that the missing discrepancy report would have had a substantial impact on the findings in light of the four different positive test results that were also in evidence). 

(in this case, appellant did not receive ineffective assistance of counsel because there was no reasonable probability that a missing laboratory discrepancy report would have produced a different result if counsel had requested a copy; there was enough independent evidence that appellant used the alleged drug that his counsel’s  failure to identify and request a copy of the report was not prejudicial; because appellant had not established that his counsel’s performance prejudiced the outcome of his case, he had not established that his Sixth Amendment right to counsel was violated). 

United States v. Lonnette, 62 M.J. 296 (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).

(in this case, appellant failed to meet his burden of demonstrating that he was entitled to pay and allowances when the convening authority approved forfeiture of all pay and allowances after he was released from confinement; the critical data regarding entitlement to pay and allowances involves information that is well within the personal knowledge of members of the armed forces -- that is, the date of release from confinement, the commencement date of any voluntary excess leave, and the termination date of an obligated period of service; to the extent that a servicemember is unable to recall specific dates, the data normally is retained in military records; appellant has not alleged that he was unable to recall these dates, that he attempted to obtain the appropriate military records, or that he was unable to obtain access to any records; he has not provided the information necessary to determine whether he was entitled to pay and allowances on the pertinent dates; accordingly, he has not established prejudice under Article 59(a)).

(in this case, on the date appellant was released from confinement, his duty status was changed to present for duty; however, forty-five minutes later, he was placed on voluntary excess leave; a servicemember on voluntary excess leave is not entitled to pay and allowances; appellant has not presented any evidence that he subsequently entered a status for which he would have been entitled to pay and allowances; assuming that appellant was on active duty for forty-five minutes, the burden is on him to demonstrate that he was entitled to pay and allowances on that date, that forfeitures were erroneously taken, and that if there was error, it was prejudicial; appellant has not done so; the speculative possibility that appellant might have been entitled to an undefined amount of pay and allowances on a single day is not sufficient to establish prejudice under Article 59(a)).  

United States v. Capers, 62 M.J. 268 (with respect to an error in an SJA’s post-trial recommendation, the prejudice prong involves a relatively low threshold -- a demonstration of some colorable showing of possible prejudice; although the colorable showing threshold is low, the prejudice must bear a reasonable relationship to the error, and it must involve a reasonably available remedy). 

(given his inability to identify a reasonably available alternative remedy related to the SJA’s erroneous advice with respect to forfeitures, appellant failed to make a colorable showing of possible prejudice). 

 
United States v. Rosenthal, 62 M.J. 261 (error in failing to submit post-trial clemency matter is tested for prejudice; because clemency is a highly discretionary Executive function, there is material prejudice to the substantial rights of an appellant if there is an error and the appellant makes some colorable showing of possible prejudice; appellant’s unrebutted affidavit provides evidence relevant to clemency regarding changes in appellant’s circumstances during the two-year period between the convening authority’s first and second actions; appellant stated that he had matured, ceased his drug use, was studying for a commodity broker’s license, and wished to stay in the Marine Corps; the decision as to whether any or all of these matters would warrant clemency is a matter committed to the discretion of the convening authority under Article 60(c), UCMJ, 10 USC § 860(c), and RCM 1107; for purpose of this appeal, appellant has demonstrated a colorable showing of possible prejudice).

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). 

(in the context of a post-trial recommendation error, whether that error is preserved or is otherwise considered under the plain error doctrine, an appellant must make some colorable showing of possible prejudice). 

(the low threshold for material prejudice with respect to an erroneous post-trial recommendation reflects the convening authority’s vast power in granting clemency and is designed to avoid undue speculation as to how certain information might impact the convening authority’s exercise of such broad discretion; the threshold is low, but there must be some colorable showing of possible prejudice). 

(in the context of a convening authority’s exercise of post-trial discretion, the omission of pretrial restraint information is not inherently prejudicial; there must be a colorable showing of possible prejudice in terms of how the omission potentially affected an appellant’s opportunity for clemency). 

(in this case, although appellant contended that knowledge of his pretrial restraint could have been the additional factor that would have persuaded the convening authority to grant clemency, he did not show any connection between the time he spent in pretrial restraint and his clemency request; the petition for clemency that appellant submitted to the convening authority highlighted appellant’s cooperation with authorities, acceptance of responsibility, and desire to witness the birth of his child; appellant did not directly or indirectly refer to the pretrial restraint or suggest that the convening authority should take it into account in considering clemency; moreover, the 44-day period of pretrial restraint was not of such unusual duration that there is a reasonable likelihood that the length alone -- without any mention by appellant -- would have attracted the convening authority’s attention for purposes of clemency; under these circumstances, appellant has not made a colorable showing of possible prejudice).

United States v. Farley, 60 M.J. 492 (even if the military judge did err in applying MRE 304(d)(2)(A) and 304(d)(5) in holding that appellant’s motion to suppress a statement he made to a social worker was untimely because it was made after his plea of guilty and in allowing the government to admit the statement in aggravation during presentencing, that error was harmless beyond a reasonable doubt given the overwhelming nature of the evidence detailing the numerous instances of rape, sodomy, and indecent acts committed by appellant with his stepdaughter over an extensive period of time). 

United States v. Israel, 60 M.J. 485 (in this case, the military judge limited the accused’s cross-examination in a manner that precluded him from exploring the possibility that the urinalysis testing process suffered from irregularities; presenting the possibility that the positive result from the urinalysis test was unreliable was the accused’s best defense to the government’s “gold standard” theory of the case; by precluding any meaningful inquiry into those relevant irregularities in the process, the accused was deprived of the opportunity to confront the “gold standard” theory properly; it is impossible to say that the members would not have taken evidence of irregularities in the testing process and possible errors in the results into consideration; having found that evidence of rates of untestable samples, a calibration error, and a false-positive test result were erroneously excluded, this Court concludes that the error was not harmless beyond a reasonable doubt). 

United States v. Cano, 61 M.J. 74 (where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt). 

(the military judge’s error in failing to release to the defense a clinical psychologist’s medical records compiled during her therapy sessions with the child abuse victim was harmless beyond a reasonable doubt where any inconsistencies revealed in the withheld evidence were cumulative of other evidence available at trial, easily explained based on the victim’s age and maturity, and were not significant in relation to the victim’s overall testimony; in addition, the records did not provide any new ammunition for the defense to attack the victim’s credibility and did not provide evidence of suggestive questioning or coaching). 

United States v. Taylor, 61 M.J. 157 (for a nonconstitutional error, the Government must demonstrate that the error did not have a substantial influence on the findings; when evaluating the harm from the erroneous admission of Government evidence, this 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). 

(the erroneous admission of a declaration of desertion message and a declaration of return from desertion message was prejudicial error where those documents were the only evidence that appellant absented himself from his organization without authority, an element of the desertion charge; thus, the improperly admitted evidence had a substantial influence on the findings). 

United States v. Berry, 61 M.J. 91 (the error in admitting evidence of uncharged sexual acts between the accused and another victim that occurred eight years earlier than the charged forcible sodomy when the accused was thirteen and the other victim was six was prejudicial where the accused became not just a soldier who stood accused of forcible sodomy, but rather a child molester who was charged with the offense of forcible sodomy; even though the evidence of uncharged sexual acts was admitted for the limited purpose of showing that the accused had a propensity to commit nonconsensual sexual acts against unusually vulnerable persons, due to inflammatory nature of the evidence and the emphasis given the testimony by the government, it was likely considered by the members as much more than propensity evidence and improperly tipped the balance of the evidence; the Government has not met its burden of demonstrating that this improperly admitted evidence did not have a substantial influence on the findings). 

United States v. Jones, 61 M.J. 80 (the same evidence that supports the due process test’s prejudice factor for unreasonable post-trial delay also demonstrates prejudice for purposes of Article 59(a), UCMJ.).

United States v. Billings, 61 M.J. 163 (although the military judge erred in allowing a jeweler to testify on the type of gold used in the watch pictured in government photos, this error was harmless where the defense counsel, through voir dire and cross-examination, was able to demonstrate the shortcomings of both the jeweler’s expertise and his method of comparison, and where the government marshaled strong evidence apart from the jeweler’s testimony that the watch in the photos was the watch stolen in the robbery; we need not decide whether the military judge properly performed his gatekeeping function, because any error in admitting this evidence was harmless in light of the overwhelming evidence against appellant). 

United States v. Gorence, 61 M.J. 171 (if there were any error during sentencing in permitting the trial counsel to elicit information concerning appellant’s pre-service drug use from his mother to rebut matters as to which the military judge opened the door, the error was harmless where the trial was by military judge alone, where statements made by the military judge on the record suggested that he did not give significant weight to mother’s speculative testimony that appellant used drugs in high school, and where the military judge recommended that appellant be returned to duty).

United States v. Alexander, 61 M.J. 266 (where an error is procedural rather than jurisdictional in nature, this Court tests for material prejudice to a substantial right to determine whether relief is warranted).

United States v. Garlick, 61 M.J. 346 (any error in failing to disclose to the accused information about factual inaccuracies in a search warrant affidavit of an FBI special agent who conducted a child pornography investigation which led to the charges against the accused was harmless beyond a reasonable doubt, where the government’s undisclosed information was within the accused’s knowledge well before trial; even after being formally notified after trial of a disclosure error, and obtaining a delay to consider legal options, accused’s counsel declined to litigate the issue or advocate its importance to the convening authority in her RCM 1105 submission). 

United States v. Brewer, 61 M.J. 425 (with regard to a military judge’s erroneous ruling excluding defense witnesses, because an accused has the right to present witnesses under the Constitution and RCM 703(b), the government must show that this error was harmless beyond a reasonable doubt).

(excluding several defense witnesses made it impossible for the accused to present his innocent ingestion defense that those who saw him most frequently over a substantial portion of the charged time frame had not seen him use marijuana, possess marijuana paraphernalia, or appear to be under the influence of marijuana; this line of defense was relevant to rebut the inference that his use of marijuana was wrongful; while the government’s evidence was strong (urinalysis and hair analysis) to support a finding that the accused had marijuana in his system, it relied solely on the permissive inference of wrongful use to meet that essential element of the charge; therefore, the exclusion of these witnesses was not harmless beyond a reasonable doubt because without their testimony that permissive inference was left unchallenged; this prejudice was compounded by the military judge’s confusing and erroneous instruction; the accused was not permitted to challenge the inference that his use was wrongful, while at the same time reasonable members may have understood the instruction to require them to find the use wrongful if he did not make a sufficient showing to the contrary; thus, the accused was left without recourse to rebut an essential element of the charge against him, and the government was relieved of its burden to prove that element beyond a reasonable doubt; these errors created prejudice to the accused that was not harmless beyond a reasonable doubt).

United States v. Johnson, 62 M.J. 31 (the erroneous admission of the evidence of the accused’s bank records for the purpose of showing a motive to transport and distribute drugs was harmless considering the strength of the government’s case and the limitations inherent in the defense presentation that the accused lacked knowledge of the contents of the box he was transporting). 

United States v. Sowell, 62 M.J. 150 (the military judge’s error in not allowing the accused from mentioning in her unsworn statement the fact of her co-conspirator’s acquittal, despite the trial counsel’s implication that the co-conspirator was guilty, had a substantial influence on sentencing; although the members might have drawn the inference that the co-conspirator was acquitted or received no punishment on account of her presence in the courtroom as a witness, they might also have reasonably inferred that she had yet to be tried for the same offense as the accused, and because she was an alleged co-conspirator with the accused based on the same facts, trial counsel’s argument and its implications necessarily reached to the core of the accused’s own case). 

United States v. McNutt, 62 M.J. 16 (the military judge’s error in considering the Army’s good-time credit policy in assessing the accused’s sentence to confinement was prejudicial where it lengthened the accused’s sentence by ten days for an improper reason). 

United States v. Rhodes, 61 M.J. 445 (where error is founded on a violation of MRE 404(b), the test for harmlessness is whether we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error; the defense must initially meet the threshold burden of showing that an error has occurred which is of such a character that its natural effect is to prejudice a litigant’s substantial rights; the burden then shifts to the government to persuade us that the error was harmless).

United States v. Shelton, 62 M.J. 1 (even assuming that defense-requested witnesses possessed information relevant and necessary under RCM 703(b)(1) to demonstrate that appellant’s roommate had the motive and opportunity to kill the same person that appellant was charged with killing, and that appellant was entitled to their production, any error in denying their production was harmless beyond a reasonable doubt where the government’s case against appellant was very strong, to include detailed testimony from appellant’s co-actor that was corroborated by physical evidence and other testimony, and where the defense was unable to provide any reasonable explanation as to why appellant’s co-actor would substitute appellant for his roommate as his co-actor). 

United States v. Warner, 62 M.J. 114 (prejudice is presumed in this shaken baby case where: (1) the government denied the defense’s request for an expert and instead provided the defense with a substitute expert of its choice; (2) the government had obtained an expert in the same subject matter area for itself; (3) the defense challenged the relative qualifications of the substitute expert; (4) the military judge denied a defense motion seeking an order requiring the originally-requested expert to be detailed to the case; and (5) the substitute expert provided by the government was not adequate because her professional qualifications concerning shaken baby syndrome were not reasonably comparable to those of the government’s expert). 

(a military judge’s erroneous denial of a defense motion for a more qualified expert consultant was prejudicial in a court-martial of an accused for an assault on his infant son where it left the defense without the adequate tools necessary to analyze and possibly challenge or rebut the opinion of the government’s expert that the injuries suffered by the accused’s son were due to the severe shaking of the child).

United States v. Bresnahan, 62 M.J. 137 (the harmlessness of an erroneous admission of evidence on the merits will be evaluated 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). 

(under the plain error standard, appellant must show that any error was plain and obvious and that it resulted in an unfair prejudicial impact on the factfinders’ deliberations).

United States v. Clark, 62 M.J. 195 (to evaluate the prejudice from a military judge’s erroneous evidentiary ruling on the merits, an appellate court considers (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, a military judge’s error in releasing and admitting into evidence an accused’s privileged statements to a sanity board had a substantial influence on the findings, requiring reversal, where the accused was prejudiced by the government’s later use of those statements to rebut his claims of diminished mental responsibility and where the government’s case relied heavily on the improper use of those statements by the sole member of the sanity board; the accused’s insanity defense may have succeeded if the military judge had not released the privileged statements to the government and allowed the prosecution to use them to the accused’s detriment).

2004

United States v. Lovett, 59 MJ 230 (we hold that even assuming the judge erred in receiving the hearsay statements within PE 12 into evidence, in overruling defense counsel’s objection to LS’s hearsay testimony, and in not permitting defense counsel to question LC about whether appellant did not want TL harmed, any such errors were harmless; appellant suffered no prejudice from the admission of hearsay statements contained in PE 12 and LS’s trial testimony; the hearsay statements were addressed without defense objection during TL’s direct examination, were used by the defense to cross-examine TL, were consistent with and cumulative of the declarants’ own in-court testimony, and were contained in PE 13, which was admitted without defense objection; finally, the judge’s failure to permit defense counsel to question LC regarding appellant’s exact intentions was harmless because the court members ultimately found that appellant did not solicit LC to murder TL -- but rather only to commit an act prejudicial to good order and discipline; counsel’s inability to probe LC to show that he did not solicit murder could not have been prejudicial to appellant).

United States v. Saferite, 59 MJ 270 (we review a military judge’s evidentiary rulings for abuse of discretion; when the military judge conducts a proper balancing test, we will not overturn the ruling to admit the evidence unless there is a clear abuse of discretion).

(in this case, the military judge clearly abused his discretion where although the evidence of his wife’s possible complicity in appellant’s escape from confinement was logically relevant to show her bias in favor of appellant, its probative value was substantially outweighed by the danger of unfair prejudice; the probative value was minimal where the content and tone of her statement convincingly showed her bias as the wife of appellant; evidence of her possible complicity in appellant’s escape added little to establish her bias in her statement; at best, it was merely cumulative on the issue of her bias toward appellant; on the other hand, the danger of unfair prejudice was substantial where the evidence tended merely to allege uncharged misconduct by appellant and show the members the government’s theory that appellant was guilty of conspiring with his wife and involving her in the criminal conduct of his escape; the factual evidence of this theory was tenuous at best; and notwithstanding the factual deficiency to link his wife to appellant’s escape, trial counsel focused his argument on the uncharged misconduct rather than on bias).

(although we identify a danger of unfair prejudice, we further hold that the error was harmless under the particular facts of this case where evidence of appellant’s escape was already before the members, where appellant was tried in absentia, where the military judge carefully instructed the members to sentence appellant only for the offenses of which he was convicted, and where the maximum period of confinement was 230 years, the trial counsel asked for 16 years confinement, and the members imposed confinement for only six years).

United States v. Jackson, 59 MJ 330 (if the Government fails to disclose discoverable evidence, the error is tested on appeal for prejudice, which is assessed in light of the evidence in the entire record; as a general matter, when an appellant has demonstrated error with respect to nondisclosure, the appellant will be entitled to relief only if there is a reasonable probability that there would have been a different result at trial if the evidence had been disclosed; when an appellant has demonstrated that the Government failed to disclose discoverable evidence with respect 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). 

(with respect to prejudice in this case, where the prosecution focused primarily on a urinalysis laboratory result, and where the defense focused primarily on the reliability of the laboratory process, the defense could have used the undisclosed laboratory discrepancy report to demonstrate the existence of quality control problems; as a result, there is a reasonable probability that such evidence could have influenced the members’ judgment about the reliability of the testing process).

(we conclude that the Government’s error in failing to disclose a laboratory discrepancy report deprived the defense of information that could have been considered by the members as critical on a pivotal issue in the case -- the reliability of the laboratory’s report that appellant’s specimen produced a positive result; given the significance of this information in the context of appellant’s trial, the error was prejudicial under the harmless beyond a reasonable doubt standard, as well as under the standard of a reasonable probability of a different result).

United States v. Santos, 59 MJ 317 (if the Government fails to disclose discoverable evidence, the error is tested on appeal for prejudice, which is assessed in light of the evidence in the entire record; as a general matter, when an appellant has demonstrated error with respect to nondisclosure, the appellant will be entitled to relief only if there is a reasonable probability that there would have been a different result at trial if the evidence had been disclosed; when an appellant has demonstrated that the Government failed to disclose discoverable evidence with respect 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).

(under the standards set forth in United States v. Roberts, __ M.J. __ (C.A.A.F. 2004) and the cases cited therein, 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 review of discovery violations involves case-specific considerations; in another case, undisclosed documents from an unrelated investigation that cast doubt on the credibility of a witness might have greater value; in the present case, in light of the minimal probative value and utility of the undisclosed documents at issue, and in light of all the evidence presented in the record, we hold that any error in not providing these documents to appellant during discovery was harmless beyond a reasonable doubt). 

United States v. McDonald, 59 MJ 426 (in evaluating whether erroneous admission of government evidence is harmless, this Court uses a four part test, 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).

(after applying the harmless error test to the facts of this case, we cannot be confident that the findings of the court-martial were not substantially influenced by the improperly admitted evidence of the appellant’s childhood conduct where the childhood acts were not only irrelevant and highly inflammatory, but indistinguishable from propensity evidence, and could only have harmed appellant in the eyes of the members).

United States v. Thompson, 59 MJ 432 (the failure to conduct a statute of limitations waiver inquiry with appellant, the erroneous inclusion of the time-barred period in the instructions to the members, and the post-announcement modification of the findings constituted a series of errors materially prejudicial to the substantial rights of appellant).

United States v. Simmons, 59 MJ 485  (we conclude that the military judge’s error in admitting appellant’s letter and his derivative videotaped statement concerning the sexual nature of his relationship with an enlisted subordinate was not harmless beyond a reasonable doubt with respect to the members' guilty finding of conduct unbecoming an officer and a gentleman in regard to the sexual contact and the improperly admitted letter; the only evidence of a sexual relationship apart from the improperly admitted letter and derivative videotaped statement was appellant’s own trial testimony; we are not convinced that the defense strategy of having appellant testify at trial concerning the sexual nature of the relationship would have been the same in the absence of the improperly admitted evidence; although we need not determine whether their improper admission was the exclusive motivation, appellant's trial testimony on this aspect of the charged offense was clearly responsive to the letter and derivative videotaped statement; in the absence of those items of evidence (which should not have been admitted) or other supporting testimony (which did not exist), the record does not reflect any other evidence available to demonstrate the existence of an intimate relationship involving sexual contact; under those circumstances, we cannot view appellant's trial testimony as an independent basis for concluding that the improperly admitted evidence did not contribute to that portion of the finding regarding sexual contact).

(we conclude that the military judge's error in admitting appellant’s letter and his derivative videotaped statement concerning the sexual nature of his relationship with an enlisted subordinate was harmless beyond a reasonable doubt with respect to that portion of the members' guilty finding that appellant violated Article 133 by engaging in a close personal friendship and overnight guest relationship with that subordinate; there was testimony and evidence unrelated to the improperly admitted letter and derivative statement that demonstrated the unprofessional character of appellant’s relationship with the subordinate; moreover, appellant did not seriously contest the friendship and roommate aspects of the charge).

(the government has not met its burden of demonstrating beyond a reasonable doubt that the admission of the illegally seized letter and the derivative videotaped statement did not contribute to the finding of guilt under the assault charge; under the government's theory of the case, the assault was the direct product of appellant’s alleged gay obsession with his enlisted subordinate; but the illegally seized letter and derivative videotaped statement were the obvious centerpieces of the government's theory and were the only evidence apart from appellant’s derivative trial testimony that concerned a homosexual relationship; in addition, appellant vigorously contested that theory of the assault and raised evidence under a self-defense theory; the subordinate testified to only a limited recollection of the events surrounding the fight; and the only other witness testified that he saw the subordinate pinning appellant to a window with his arm to his throat; under those circumstances, the government has not met its burden of demonstrating that the error was harmless beyond a reasonable doubt under the Chapman analysis; we cannot say that the improper admission of the evidence at issue here and the gay obsession theory that it was offered in support of did not contribute to the finding of guilty under the assault charge).

United States v. Jenkins, 60 MJ 27 (Article 66(c) review is a substantial right; it follows that in the absence of such a complete review, appellant has suffered material prejudice to a substantial right).

United States v. Pinero, 60 MJ 31 (acceptance of appellant’s plea to a longer period of absence than he was in fact guilty of may prove to be harmless, but it was still error to accept the plea and we should not conflate that which is harmless with that which is de minimis in our analysis).

United States v. Rodriguez, 60 MJ 87 (the majority of the federal circuits test for prejudice in cases of improper racial argument; in our view, unwarranted references to race or ethnicity have no place in either the military or civilian forum; the Supreme Court has not suggested otherwise; however, we see no reason not to adhere to the prevailing approach; our holding acknowledges the importance of a fair trial and the insidious impact that racial or ethnic bias, or stereotype, can have on justice; at the same time, our holding acknowledges that where, in fact, there is no prejudice to an accused, we should not forsake society’s other interests in the timely and efficient administration of justice, the interests of victims, and in the military context, the potential impact on national security deployment). 

(appellant did not suffer material prejudice to a substantial right where trial counsel’s argument was before a military judge alone; military judges are presumed to know the law and to follow it absent clear evidence to the contrary; finally, there is no indication in the record that the statement affected the military judge or impacted Appellant’s sentence; appellant’s maximum exposure for his offenses was, among other punishments, over 54 years of confinement and a dishonorable discharge; his adjudged sentence, however, included only three years of confinement, total forfeitures, a fine, and a dishonorable discharge).

(we caution that prejudice determinations with respect to improper racial argument are fact specific; in a given situation, racial or ethnic remarks, including before a military judge, may deny an accused a fair trial; race is different).

(it is the rare case indeed, involving the most tangential allusion, where the unwarranted reference to race or ethnicity in argument will not be obvious error; our concern with unwarranted statements about race and ethnicity are magnified when the trial is before members; this is true whether or not it is motivated by animus, as we cannot ultimately know what effect, if any, such statements may have on the fact finder or sentencing authority).

United States v. Byrd, 60 MJ 4 (we evaluate 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; the burden of demonstrating harmlessness rests with the Government). 

(although the military judge improperly allowed a lay witness to offer her opinion about appellant’s meaning in various passages of letters he wrote to her, this Court finds the error to be harmless where the inadmissible testimony was of limited materiality and insignificant).

United States v. Marcum, 60 MJ 198 (a finding or sentence of court-martial may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of an accused).

United States v. Traum, 60 MJ 226 (in this case, any error in admitting a statement that was impermissible profile evidence was harmless where the statement was introduced after the accused’s confession had been admitted and presented to the members, and the critical question was whether the victim died by accidental or intentional asphyxiation, and not the identity of the perpetrator). 

2003

United States v. Miller, 58 MJ 266 (although the military judge erred by not giving the general sentencing instruction on pretrial confinement, and even if he erred by not giving the requested pretrial confinement instruction as he said he would, we are convinced that appellant suffered no prejudice; the record reveals no evidence to suggest that the nature of the pretrial confinement was unduly harsh or rigorous; in the scheme of the defense sentencing case, three days in pretrial confinement was de minimis; the issue of three days in pretrial confinement was obviously of little consequence to either party; finally, given the facts of this case, we note that the adjudged sentence was favorable to appellant; under the circumstances, appellant was not prejudiced by the absence of the standard Benchbook instructions on pretrial confinement and pretrial confinement credit).

United States v. McCollum, 58 MJ 323 (whether an error, constitutional or otherwise, was harmless is a question of law that we review de novo; the Government has the burden of persuading us that a constitutional error is harmless beyond a reasonable doubt; for nonconstitutional errors, the Government must demonstrate that the error did not have a substantial influence on the findings).

(the erroneous admission of privileged marital communications constitutes nonconstitutional error for purposes of harmless error analysis).

(in determining the prejudice resulting from the erroneous admission of evidence, we weigh (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).

2002

United States v. Hall, 56 MJ 432 (for constitutional errors, the government must persuade the appellate court that the error was harmless beyond a reasonable doubt).

(for nonconstitutional errors, the government must persuade the appellate court that the error did not have a substantial influence on the findings).

(prejudice from an erroneous evidentiary ruling is evaluated under a four-pronged test; 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).

(any error in excluding portions of testimony supporting entrapment defense was harmless beyond a reasonable doubt in light of appellant’s own testimony establishing his predisposition to facilitate the transfer of steroids, which was corroborated by testimony of two separate witnesses).

United States v. Gilbride, 56 MJ 428 (military judge’s error in denying appellant’s request to introduce the exculpatory remarks from his written statement under the rule of completeness in Mil.R.Evid. 304(h)(2) is tested to determine whether it materially prejudiced the substantial rights of appellant under Article 59(a), UCMJ, 10 USC § 859(a)).

(military judge’s error in denying appellant’s request to introduce the exculpatory remarks from his written statement under the rule of completeness in Mil.R.Evid. 304(h)(2) was harmless where:  (1) although the military judge initially rejected defense counsel’s completeness argument, he subsequently permitted the defense to introduce appellant’s exculpatory statement during the prosecution’s case; (2) defense counsel was able to effectively argue that appellant did not have the requisite intent for the offense of intentional infliction of grievous bodily harm; (3) appellant was convicted only of the lesser-included offense of aggravated assault, and (4) the damage from the error in applying the completeness doctrine was not irreparable.

United States v. Guyton-Bhatt, 56 MJ 484 (where nearly all of the information secured by a legal assistance officer in violation of Article 31 was introduced at trial through independent sources, the error in admitting appellant’s statements to the legal assistance officer was harmless beyond a reasonable doubt).

United States v. Benton, 57 MJ 24 (error in excluding part of appellant’s purported confession (Mil.R.Evid. 304(h)(2)) was harmless where:  (1) appellant himself was allowed to testify that his participation in the kidnapping was coerced and that he did not sodomize the victim; (2) the corroborative value of the excluded evidence that appellant told a fellow pretrial confinee sometime after the crime the same exculpatory story was not great; and (3) any corrective value which the excluded evidence might have had to prevent the members from thinking appellant had confessed was largely minimized by appellant’s own testimony which denied the conversation with the fellow pretrial confinee).

United States v. Walker, 57 MJ 174 (in a case pitting the credibility of appellant against that of the victim, the defense theory – to portray the victim as a passive, compliant child, who had embellished an inadvertent, innocent act in response to the intense, repeated, and suggestive questioning of a host of well-meaning adults – was seriously undermined by the admission of the hearsay statement of appellant’s wife which was used by the Government to show that, two days after the incident, long before anyone began questioning the victim and long before she was subjected to the influences of well-meaning adults, appellant made a damaging admission to his wife).

United States v. Humpherys, 57 MJ 83 (an evidentiary error may be harmless when evidence of the guilt of the accused is overwhelming).

United States v. Alameda, 57 MJ 190 (whether an error was harmless is reviewed de novo).

(the following four factors are considered to evaluate prejudice from erroneous evidentiary rulings:  (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).

(for constitutional error, reviewing court must be satisfied beyond a reasonable doubt that the error was harmless; for non-constitutional error, the court must be satisfied that the judgment was not substantially swayed by the error; if the court is not satisfied, or if it is left in grave doubt, the conviction cannot stand).

(a distinction exists between direct review and collateral review in determining if impermissible comment on pretrial silence was harmless:  on direct review, reviewing court must be satisfied beyond a reasonable doubt that the error was harmless; on collateral review, the court must be satisfied that the judgment was not substantially swayed by the error).

(after considering the admissible evidence of premeditation and intent to kill, Court of Appeals for the Armed Forces was are not satisfied beyond a reasonable doubt that the members would have convicted appellant of attempted premeditated murder, the lesser-included offenses of attempted unpremeditated murder, or attempted voluntary manslaughter, without (1) the testimony about appellant’s post-apprehension silence, (2) masking tape, latex gloves, and utility knife which were irrelevant, (3) the improper comment of trial counsel on appellant’s post-apprehension silence, and (4) the instruction of the military judge that may have exacerbated the impact of trial counsel’s argument by leading the members to conclude that they were permitted to draw an adverse inference from appellant’s silence at the time of his apprehension).

United States v. Ellis, 57 MJ 375 (after the loss of certain bodily tissue evidence, refusal to give an adverse inference instruction was harmless beyond a reasonable doubt in light of appellant’s confession; an accused’s confession goes far in rendering harmless any error in the military judge’s failure to give an adverse inference instruction or stop trial counsel from commenting on the defense’s inability to examine lost evidence).

(Court concluded there was no reasonable likelihood the members would have found appellant’s confession was involuntary or unreliable, even if the military judge had given the adverse inference instruction and stopped trial counsel from making prohibited comments, where:  (1) given the magnitude and variety of the injuries revealed by the autopsy, there was simply no way the members could conclude they were caused by a single hit to the head with a baseball bat three weeks earlier, or by less traumatic, self-inflicted head-banging; (2) on this record, the only thing the members could conclude, even with the requested adverse inference instruction and without trial counsel’s questionable comments, was that the multiple injuries had to be caused by the June 2 and 4 beatings described by appellant in his detailed confession; and (3) the members were properly instructed on their role in determining the voluntariness and reliability of the confession and that they could not give less weight to the defense expert’s testimony simply because he did not examine the brain, and we assume they did not).

2001

United States v. Pineda, 54 MJ 298 (appellant was not prejudiced by military judge’s failure to make adequate inquiries into defense counsel’s concession that a punitive discharge was appropriate; where the facts of a given case compel a conclusion that a bad-conduct discharge was reasonably likely, a new sentence hearing is not normally ordered; here, appellant implicitly acknowledged the reasonable certainty of a punitive discharge where he was convicted of numerous offenses reflecting his repeated abuse of government property entrusted to him).

United States v. Vasquez, 54 MJ 303 (appellant was prejudiced by the erroneous introduction of an admission of guilt to unauthorized absence made in conjunction with a request for administrative separation in lieu of court-martial (Mil. R. Evid. 410), where the court could not say with fair assurance that the improper evidence did not have a substantial influence on the sentence imposed by the military judge).

United States v. Rush, 54 MJ 313 (failure of the military judge to give a defense-requested instruction on the ineradicable stigma of a punitive discharge is not constitutional error, but rather a violation of a Manual provision promulgated by the President to ensure a military accused a fair trial; such an error will be tested to determine whether it substantially influenced the sentence proceedings such that it led to a bad-conduct discharge being unfairly imposed).

United States v. Kulathungam, 54 MJ 386 (although trial counsel erroneously inserted findings of guilty into the record of trial prior to authentication, even though no findings were announced based on appellant’s guilty pleas, this error did not substantially prejudice appellant).

United States v. Riveranieves, 54 MJ 460 (appellant was prejudiced where trial counsel misstated evidence during argument on findings and, upon objection, the military judge agreed with trial counsel’s reading of the record and communicated this belief to the members; prejudice under these circumstances is determined by the particular circumstances of each case, and prejudice was found in this base because:  (1) there was no immediate or timely curative instruction; (2) this was a urinalysis case and the misstatement pertained to a critical issue and its resolution based on scientific principles; and (3) the judge’s comments effectively blunted appellant’s previously noted defense that his urine sample had been purposefully tampered with after he submitted it to military authorities).

United States v. Huhn, 54 MJ 493 (setting aside one specification of larceny as multiplicious was harmless with respect to the sentence and the error had no substantial influence on the sentence where:  (1) the nature of the conduct admitted by appellant was not changed; (2) the maximum punishment was not significantly changed; (3) the military judge sentenced appellant to only one-tenth of the maximum imposable confinement; and (4) the convening authority cut the adjudged confinement in half).

United States v. Binegar, 55 MJ 1 (military judge’s instructional error informing the members that appellant’s mistake must have been both honest and reasonable, rather than only honest in order to provide a defense to larceny was materially prejudicial where:  (1) the instruction placed a lesser burden on the government to prove appellant’s guilt because it could secure his conviction by disproving either the honesty or the reasonableness of the mistake; (2) trial counsel exploited the erroneous instruction in his findings argument; and (3) the government presented a substantial case on the unreasonableness of appellant’s conduct, creating a reasonable possibility that the members resolved this case against appellant on this basis.

United States v. Gunkle, 55 MJ 26 (Court of Criminal Appeals’ determination that an error was harmless is reviewed de novo; the test for nonconstitutional evidentiary error is whether the error had a substantial influence on the findings).

(prejudice from an erroneous evidentiary ruling is evaluated by applying  a four-part test:  (1) weighing the strength of the prosecution case; (2) weighing the strength of the defense case; (3) weighing the materiality of the evidence at issue; and (4) weighing the quality of the evidence at issue).

(error in permitting testimony of two forensic interviewers and an interview transcript of interview with child victim was harmless in light of:  (1) unequivocal and specific testimony of two child victims; (2) the repetitive nature of the encounters which seriously undermined appellant’s claim that the encounters were inadvertent and unwanted; (3) the fact that although material, the evidence was cumulative of the in-court testimony of the victims;  and (4) the fact that the case was tried by a  military judge alone who had ample opportunity to assess the credibility of the victims).

United States v. Hursey, 55 MJ 34 (error in admitting potentially prejudicial and baseless testimony about the appellant’s absence at the scheduled time for trial as rebuttal on sentencing was harmless where:  (1) the sentence adjudged was substantially less than the maximum authorized punishment; and (2) appellant’s personnel record with admissible evidence of misconduct and derelictions).

United States v. Fulton, 55 MJ 88 (where military judge incorrectly concluded that he had no authority to dismiss charges for illegal pretrial punishment, such an error will be prejudicial if the reviewing court concludes:  (1) that dismissal was the only appropriate remedy as a matter of law, or (2) that there was a reasonable likelihood the military judge would have considered dismissal as a remedy had he been aware that he had the discretion to dismiss the charges).

(although military judge incorrectly concluded that he had no authority to dismiss charges for illegal pretrial punishment, the fact that he chose not to impose a remedy greater than a three-for-one confinement credit makes it clear that the military judge did not consider the three-for-one remedy inadequate and would not have chosen the most drastic remedy – dismissal – even had he been aware that it was an available option).

United States v. Ivey, 55 MJ 251 (any error by the military judge in deciding that requests for immunity had been de facto denied before those requests were presented to the convening authority was harmless and had no substantial influence on the findings where the convening would have denied the requests in any event).

(any error by the military judge in deciding that requests for immunity had been de facto denied before those requests were presented to the convening authority was not of constitutional dimension).

United States v. Grijalva, 55 MJ 223 (if the military judge errs by considering statements made by an accused that were outside the waiver of the right against self-incrimination that follows from a provident plea of guilty, the error would be of constitutional dimension, and the findings could not be affirmed unless the reviewing court is satisfied that the error was harmless beyond a reasonable doubt).

(error of constitutional dimension - considering appellant’s admissions which pertained to the element of premeditation, an element of the greater offense to which the guilty plea had been rejected – was harmless beyond a reasonable doubt where evidence of premeditation was overwhelming and uncontested).

United States v. Catrett, 55 MJ 400 (assuming a Miranda violation, admitting appellant’s statement to civilian police that he hit the victim with a dog bone and a statue was harmless beyond a reasonable doubt where the victim testified to the same assault, eyewitness statements from appellant’s wife to the same effect were admitted, and the bloodied dog bone was discovered in plain view before appellant made the challenged incriminating admissions).

United States v. Bolkan, 55 MJ 425 (assuming that defense counsel conceded the appropriateness of a punitive discharge and that the military judge erred in not conducting an inquiry into whether defense counsel’s argument reflected appellant’s desires, any error was harmless where:  (1) defense counsel’s argument made a strategic decision recognizing that if the members must choose between confinement and a bad-conduct discharge, they should give appellant the punitive discharge; (2) defense counsel was realistic in her approach by accepting the force of adverse facts; and, (3) this was a case in which there was no reasonable probability of retention in the service).

United States v. Whitney, 55 MJ 413 (improper comment about appellant’s post-polygraph silence in the face of a challenge to his truthfulness was harmless beyond a reasonable doubt because, inter alia:  (1) the military judge admonished the members to disregard this testimony; (2) the president of the court acknowledged that he understood instruction to disregard testimony about appellant’s silence; (3) in the absence of evidence to the contrary, court members are presumed to understand and follow the military judge’s instructions; and (4) the victim provided credible, persuasive testimony).

United States v. Washington, 55 MJ 441 (military judge’s refusal to admit a summary of expected lost retirement pay if appellant was awarded a punitive discharge was materially prejudicial where appellant suffered post-traumatic stress disorder, appellant’s rehabilitative potential was not necessarily bleak, and the decision to award a punitive discharge was a close call).

2000

United States v. George, 52 MJ 259 (where error in admitting evidence is of constitutional dimension, the test for harmlessness is whether the evidence may reasonably have had an effect on the decision; if it did not, then the court may conclude that the error was harmless beyond a reasonable doubt).

(constitutional error in admitting improper hearsay to the effect that appellant was “predatory in nature” was harmless beyond a reasonable doubt in light of the fact that:  this was appellant’s second offense; he was not a good candidate for rehabilitation; and the erroneous reference to the hearsay paled in comparison to appellant’s record of sexual misconduct and the seriousness of the offense).

United States v. Roberts, 52 MJ 333 (even if cross-examination of appellant about previous positive drug test and appellant’s claim of innocent ingestion in response to that test was improper, appellant could not have been prejudiced under any standard where:  (1) appellant was described as looking “[s]hocked,” “disheveled,” and like an “emotional wreck” when he was apprehended; (2) appellant admitted to his leading chief petty officer that “he did some coke”; (3) appellant’s written statement admitted receiving something from an acquaintance to cheer him up which appellant assumed was something else (cocaine); and, (4) appellant was impeached by his acknowledgement that he had been convicted of three specifications of false official statements, by a general court-martial convened about 7 years earlier).

(any error in admission of a witness’s testimony that child’s story “didn’t sound like a lie” which the military judge made clear he was not considering for the truth of what the child might have said, or any error in admission of a clinical social worker’s testimony which the military judge announced he would give very little weight, was not prejudicial in the context of this judge alone trial where the military judge was able to assess the credibility of the victim himself).

United States v. Armstrong, 53 MJ 76 (expert testimony of a psychologist impermissibly vouching for the credibility of a victim of sexual abuse is a nonconstitutional evidentiary error to be tested for harmlessness to determine whether the error itself had a substantial influence on the findings; if there was a substantial influence, or if one is left in doubt, the conviction cannot stand).

(expert testimony of a psychologist impermissibly vouching for the credibility of a victim of sexual abuse was not harmless where:  (1) the case pitted the credibility of a senior noncommissioned officer against the ambiguous, uncertain testimony of a 17-year old girl; (2) appellant’s wife and 15 year old daughter supported his defense; (3) appellant’s pretrial statement admitted only accidental contact and poor judgment; (4) there was no physical evidence; (5) the victim was not a strong witness and the expert was powerful; and (6) curative instructions did not remove grave doubts about whether the error was harmless).

United States v. Moolick, 53 MJ 174 (if a military judge commits constitutional error by depriving an accused of his right to present a defense, the test on appellate review is whether the court is satisfied beyond a reasonable doubt that the error was harmless; the test for nonconstitutional error is whether the error itself had substantial influence on the findings).

(Prejudice from the military judge’s erroneous evidentiary ruling is evaluated 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. Latorre, 53 MJ 179 (a four-part test is used to determine whether evidence adduced at trial was unduly prejudicial; the court evaluates:  (1) the strength of the government’s case, (2) the defense theory, (3) the materiality of the evidence, and (4) the quality of the evidence).

United States v. Baer, 53 MJ 235 (even if trial counsel’s sentencing argument, which asked the members to imagine the victim “sitting there as these people beat him” and to “imagine the pain and agony”, was a deliberate strategy to indulge in improper argument, the relative lightness of the sentence appellant received indicated that the argument did not bear fruit, and Court found that appellant’s substantial rights were not materially prejudiced).

United States v. Langston, 53 MJ 335 (military judge’s erroneous decision not to sequester witnesses during appellant’s providence inquiry was harmless and did not materially prejudice appellant’s substantial rights where:  (1) there was no reasonable possibility that one witness’s testimony was altered by what she heard during providence inquiry; (2) there was no dispute as to how certain offenses occurred or any conflict with appellant’s admissions during the providence inquiry; and (3) another witness adhered to her version of the events even after hearing appellant’s contrary statements made during the providence inquiry).

United States v. Pablo, 53 MJ 356 (erroneous admission of hearsay under the residual hearsay exception (MRE 803(24)) was nonconstitutional error to be tested for harmlessness where appellant had the opportunity to cross-examine the declarant and did so effectively).

(the test for harmless error is whether the error itself had substantial influence on the findings; if so, or if the court is left in grave doubt, the conviction cannot stand).

(the Government has the burden of persuading the court that an error was harmless – that it did not have a substantial influence on the findings).

(the government failed to meet its burden of persuading the court that the erroneous admission of hearsay evidence was harmless, thus leaving the court with grave doubt about whether the erroneously-admitted testimony may have substantially influenced the findings, and requiring that the conviction be reversed where:  (1) the in-court testimony of the child-victim/declarant was found to be vague and foggy; (2) the in-court testimony of the child-victim/declarant was contradicted; (3) the court members expressed concern about evidentiary discrepancies; (4) the witness who testified as to the hearsay statement provided a clear, lucid description of the offense; (5) the witness who testified as to the hearsay statement described the child-victim/declarant’s demeanor in a manner suggesting truthfulness; (6) the witness indicated that the child-victim/declarant had repeated her accusations three times; and (7) the findings suggest that the hearsay testimony may have substantially influenced the deliberations).

United States v. Knight, 53 MJ 340 (in cases where a servicemember is effectively without representation during the clemency process, the court will presume prejudice).

United States v. Anderson, (appellant met the low threshold burden of making a colorable showing of prejudice from new or adverse matter considered by the convening authority where appellate counsel proffered that:  (1) appellant would have contested his characterization as a “thug” in the new matter; (2) appellant would have factually challenged the assertion in the new matter that the victim was almost killed; and (3) appellant received no clemency from the convening authority for a near maximum sentence.

United States v. Glover, 53 MJ 366 (erroneous admission of prior convictions on sentencing was harmless where:  (1) evidence of the convictions was already in evidence through appellant’s character witnesses; and (2) the prior convictions were relatively insignificant when compared to the offenses of which appellant was convicted).

United States v. Jenkins, 54 MJ 12 (while it is improper for a trial counsel to compel a defendant to state that the witnesses testifying against him are lying, each such case will be reviewed on a case-by-case basis to determine if the improper cross-examination was prejudicial).

United States v. Swift, 53 MJ 439 (even though a false official statement specification was based upon a verbal response to an unwarned inquiry and set aside, in light of remaining offenses and evidence in this case, court was convinced beyond a reasonable doubt that the error with respect to the dismissed offense was not prejudicial as to sentence).

United States v. Baumann, 54 MJ 100 (erroneous admission of evidence, over defense objection under MRE 403 was harmless error where, considered in light of the record of trial and the criteria set forth in United States v. Weeks, 20 MJ 22, 25 (CMA 1985), the evidence of guilt was overwhelming, the asserted defense was extremely weak (if a defense at all), and the military judge gave extensive limiting instructions).

1999

United States v. Brown, 50 MJ 262 (no reasonable possibility of prejudice from erroneous deliberate avoidance instruction where:  (1) that instruction expressly informed members that knowledge could not be established by mere negligence;  (2) the members were informed that they were not to consider deliberate avoidance unless they had a reasonable doubt that the accused actually knew the nature of the substance he used; (3) sufficient evidence of knowledge existed in the record; and (4) defense evidence attacking actual knowledge was completely refuted by expert rebuttal).

United States v. Murphy, 50 MJ 4 (although large quantity of psychiatric and psychological information gathered more than two years after trial could not be considered in support of a petition for new trial under Article 73, UCMJ, and RCM 1210(f), an appellate court can look at the material in testing for prejudice under Strickland v. Washington, 446 U.S. 668 (1984); in determining whether a given result obtained in the court-martial process is reliable, such matters may be considered and tested to determine whether “[t]he 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”).

United States v. Glover, 50 MJ 476 (if a military judge omits entirely any instruction on an element of the charged offense, this error may not be tested for harmlessness because the court members are prevented from considering that element at all; where the military judge fails to only to give a more specific or amplified instruction on the meaning of terms, the court will test for plain error where no such instruction is requested).

United States v. Spann, 51 MJ 89 (although military judge erred in relying on 42 USC § 10606 as the basis for rejecting a motion to sequester a victim and her mother who were to testify on sentencing, that error was harmless where:  (1) the potential witnesses were absent during most of the testimony and only heard two rebuttal witnesses; (2) appellate defense counsel has not demonstrated how the testimony of the rebuttal witnesses would have affected the veracity of the testimony provided by the victim and her mother on sentencing; (3) the victim and her mother provided victim impact testimony and did not address controverted factual matters in which testimony could have been recast after hearing testimony provided by the two rebuttal witnesses).

United States v. Muirhead, 51 MJ 94  (erroneous admission of appellant’s statements taken in violation of Article 31, UCMJ, was error not amounting to a constitutional violation and will be deemed harmless if the factfinder was not influenced by it, or if the error had only a slight effect on the resolution of the issues in the case).

(erroneous admission of appellant’s statements taken in violation of Article 31, UCMJ, had a substantial influence on the findings and was not harmless where: (1) there was no direct evidence that appellant committed the offense; (2) statements provided potential motive for the offense; (3) statements provided problematic explanation why no blood was found; (4) statement provided unusual characterization for why child would injure herself; (5) statements provided unordinary means child used to stop bleeding; and (6) appellant denied that he heard his injured child cry out that evening).

United States v. Mitchell, 51 MJ 234  (where evidence is obtained in violation of the Constitution and erroneously admitted, the government bears the burden of showing beyond a reasonable doubt that the inadmissible evidence did not contribute to the findings of guilty).

(erroneous admission of statement secured in violation of accused’s constitutional rights was not harmless beyond a reasonable doubt where:  (1) the statement bore upon intent which was a key issue in the case; (2) the inadmissible evidence was a substantial part of the government’s case; (3) the government’s argument referred to the inadmissible statement as the best evidence of accused’s intent to kill; (4) prosecution’s circumstantial evidence of intent was challenged and less than overwhelming).

United States v. Sidwell, 51 MJ 262 (where there is constitutional error, all of the circumstances should be considered in determining whether the error was harmless beyond a reasonable doubt).

(improper evidence of rights-invocation, viewed in its entirety, was harmless beyond a reasonable doubt and did not have great potential to prejudice appellant where:  (1) the evidence was an isolated reference to a single invocation; (2) the reference was brief and provided no details as to the right invoked or the offense involved; (3) the military judge gave prompt curative instructions; (4) the government did not exploit the evidence; and (5) the military judge struck the offending witness’s testimony and prevented further testimony which would have included an implied admission by appellant).

(improper evidence of rights invocation had marginal impact on members’ deliberations where:  (1) government’s case was overwhelming; (2) the inadmissible evidence had no bearing of defense attack on motives and military character of key government witness, or on the physical improbability of that witness’s version of events; and, (3) appellant did not testify and, therefore, could not be impeached on this basis).

United States v. Scott, 51 MJ 326 (expert testimony as to recidivism and the potential for rehabilitation of sexual offenders was not prejudicial to appellant’s substantial rights where:  (1) appellant was convicted of more than 20 offenses committed over a 2-year period of time; (2) appellant’s offenses included two successful escapes from confinement and six rapes; and, (3), in light of the overwhelming evidence, the expert testimony was but a small part of the sentencing evidence considered by the members).

United States v. Lewis, 51 MJ 376 (appellant suffered substantial prejudice requiring reversal of his conviction where military judge erroneously held view that RCM 701(b)(2) required presentation of corroborating witnesses in order to establish innocent ingestion defense and, as a result, limited appellant’s ability to convey his version of the facts concerning innocent ingestion, prevented counsel from framing this issue by barring any reference to this defense in his opening statement or closing argument, and failed to give instructions on innocent ingestion as required by case law).

(if errors, either separately or together, amount to a constitutional violation, the government must show that the errors were harmless beyond a reasonable doubt; if the errors were non-constitutional, an appellant must show that they substantially prejudice his/her material rights).

(appellant was prejudicially chilled in the presentation of his defense case where military judge erroneously held view that RCM 701(b)(2) required presentation of corroborating witnesses in order to establish innocent ingestion defense and thereby:  (1) prevented appellant from introducing evidence which could have rebutted the government’s circumstantial case on the issue of knowledge; (2) would not permit defense counsel to introduce any evidence that some person may have had a motive to contaminate appellant’s drink on certain nights; (3) prevented persuasive argument on this specific defense theory; and (4) failed to instruct the members that the government had the burden with respect to the circumstantial defense evidence of innocent ingestion actually admitted, as well that which was erroneously excluded).

United States v. Kerr, 51 MJ 40 (prejudice from an erroneous evidentiary ruling, either admitting government evidence or excluding defense evidence, is evaluated 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).

(admission of extrinsic evidence of misconduct offered to rebut evidence of good military character was harmless error where:  (1) the government’s evidence was strong and corroborated; (2) the defense presented no evidence to directly contradict the victim; (3) the extrinsic evidence in issue directly contradicted evidence of good military character and attacked the major thrust of the defense case; (4) the quality of the extrinsic evidence was graphic, but some was of questionable credibility; and, (5) the rebuttal evidence could have been presented in the form of opinion to rebut good military character so long as specific acts were not described).

(appellant was not prejudiced by any possible spillover effect from uncharged acts testimony where:  (1) the uncharged acts were dissimilar in nature to the charged conduct and too removed in time to be admissible under MRE 404(b); (2) a crafted and detailed limiting instruction prevented the uncharged acts from being considered for any purpose other than to rebut evidence of good military character; and, (3) the record negates any possibility of spillover in that appellant was convicted of only one of three similar charged acts of misconduct).

United States v. Carpenter, 51 MJ 393 (in a harmless error analysis, the lack of objection is relevant to a determination of prejudice as it is some measure of minimal impact of a prosecutor’s improper comment).

(trial counsel’s comments on accused’s ability to observe the witnesses and shape his testimony were harmless beyond a reasonable doubt where:  (1) defense counsel did not object to this rebuttal argument; (2) critical government evidence was overwhelming; (3) appellant’s defense was initially improbable and later collapsed in the face of contradictory evidence; (4) prosecution argument as a whole suggested that appellant did not tailor his testimony very well; and, (5) appellant’s credibility collapsed after the prosecution’s case in rebuttal).

United States v. Hargrove, 51 MJ 408 (where military judge erred in not giving instructions on applicable lesser-included offense, and where error was cured by dismissing the affected specifications, CAAF was highly confident that this error played no appreciable role in the adjudication of appellant’s punishment in light of the remaining, more serious, offenses of which appellant was convicted).

United States v. Griggs, 51 MJ 418 (at a trial for indecent exposure, even if the military judge abused his discretion by admitting evidence of prior uncharged acts of indecent exposure and masturbation, any error was not prejudicial under Article 59(a), UCMJ, in light of the overwhelming evidence that appellant had committed the acts with which he was charged).

United States v. Vassar, 52 MJ 9 (any incorrect view of the law on consent to search held by the military judge was harmless where the Court found there was no evidence suggesting a lack of consent).

(assuming that any error in the military judge’s evaluation of evidence on issue of consent to search implicates the Fourth Amendment, the error was harmless beyond a reasonable doubt where:  (1) appellant’s consent was given immediately; (2) appellant was aware of his surroundings; (3) the atmosphere was non-coercive and even light-hearted; (4) first consent form advised appellant of right to refuse; (5) second consent form was signed with knowledge that urine sample would not be sent to lab without consent; (6) appellant’s statements reflect an awareness of the right to refuse consent; (7) appellant did not go so far in his testimony as to claim his consent was not voluntary; and (8) there was no conflicting evidence to resolve).

United States v. Wells, 52 MJ 126 (the general rule for prejudice resulting from a failure to instruct on an applicable lesser-included offense is that reversal is required only when an appellate court is convinced that the evidence issues are such that a rational panel of court members could acquit on the charged crime but convict on the lesser crime).

(having found that the military judge erred by not giving an instruction on a raised lesser-included offense, the Court of Criminal Appeals erred in fashioning its own harmless error approach which focused on other lesser-included offense instructions given in this case and the fact that the members still found appellant guilty of the greater offense).