                       UNITED STATES, Appellee

                                    v.

                  Robert D. MAYNARD Jr., Specialist
                         U.S. Army, Appellant

                              No. 07-0647

                       Crim. App. No. 20060121

       United States Court of Appeals for the Armed Forces

                       Argued February 6, 2008

                          Decided May 6, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Captain William Jeremy Stephens (argued);
Colonel Christopher J. O’Brien, Lieutenant Colonel Steven C.
Henricks, and Major Teresa Lynn Raymond (on brief); Major Fansu
Ku and Captain Seth A. Director.

For Appellee: Captain Michael G. Pond (argued); Colonel John W.
Miller II, Major Elizabeth G. Marotta, Captain Michael C. Friess
(on brief); Captain Mark E. Goodson.

Military Judge:   Mark L. Toole


       This opinion is subject to revision before final publication.
United States v. Maynard Jr., No. 07-0647/AR

     Judge ERDMANN delivered the opinion of the court.

     Specialist Robert D. Maynard Jr. pled guilty to absence

without leave (AWOL) under Article 86, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 886 (2000), and was convicted by a

military judge sitting alone.   Following a pre-sentencing

hearing, a panel of officers and enlisted members sentenced

Maynard to ten months’ confinement, reduction to the lowest

enlisted grade, partial forfeitures for the period of

confinement, and a bad-conduct discharge.   The United States

Army Court of Criminal Appeals affirmed the findings and

sentence.   United States v. Maynard, No. ARMY 20060121 (A. Ct.

Crim. App. Mar. 14, 2007).

     We granted review to determine whether the military judge

committed plain error in permitting the members to consider

Maynard’s alleged anti-war and anti-American views as evidence

in aggravation for sentencing purposes.   65 M.J. 442 (C.A.A.F.

2007).    We determine that even if there was error, it was not

plain or obvious and affirm the Court of Criminal Appeals.

                             Background

     Maynard’s unit was given a “block leave” for a two-week

period.   Maynard did not return to Fort Irwin at the conclusion

of this block leave.   He voluntarily returned to Fort Irwin

after a thirteen-month absence.   During the pre-sentencing

hearing, just prior to the beginning of the Government’s case in



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aggravation, the defense submitted a “good soldier” packet that

the military judge entered into evidence.    The military judge

also admitted a mental health record reflecting Maynard’s

diagnosis for Dysthymic Disorder.1

        In its case in aggravation, the Government called First

Sergeant Miguel Guerrero.    He was Maynard’s platoon sergeant

when the unit commenced the two-week block leave.    After

describing Maynard’s duty performance, Guerrero stated that when

Maynard failed to return from leave he inventoried Maynard’s

room.    Guerrero testified that the only things remaining in the

room were:

        TA 50, military issue gear, and on the three-drawer
        chest I identified a display of personal items, one
        being a pin that said, “I hate my job.” And then a
        piece of paper with some Anti-American propaganda, “I
        hate Bush, the Commander-in-Chief” and “Fahrenheit
        9/11” stuff.

Defense counsel did not object to this testimony, nor did the

military judge give any limiting instructions to the panel on

this testimony.    On recross-examination, defense counsel

questioned Guerrero on this aspect of his testimony.    Guerrero

testified that, prior to Maynard’s AWOL, he had not heard

Maynard make anti-American statements or display any images or


1
  According to Maynard’s mental health record, Dysthymic Disorder
results in periods of depressed moods that can be characterized
by poor appetite or overeating, insomnia or hypersomnia, low
energy or fatigue, low self-esteem, poor concentration or
difficulty making decisions, and feelings of hopelessness.



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United States v. Maynard Jr., No. 07-0647/AR

signs about President Bush.    In response to a member’s question,

Guerrero stated that there were no additional items in Maynard’s

room when it was inventoried.

        Staff Sergeant Brian K. Nelson testified for the defense

during its case in mitigation.    He was Maynard’s platoon leader

after Maynard returned to Fort Irwin.    He described Maynard as a

“good soldier” and gave examples of Maynard’s above-standard

work.    Nelson also expressed a desire to retain Maynard in the

unit.    On cross-examination, trial counsel had the following

exchange with Nelson:

    Q.      You have had some discussions with Maynard, haven’t
            you?

    A.      Yes, I have.

    Q.      In fact, you had a discussion with him last week.

    A.      Yes, sir.

    Q.      And it was a political discussion?

    A.      Yes, it was.

    Q.      And you were telling Maynard your views on the Iraq
            situation.

    A.      Yes, sir.

    Q.      And Maynard said something to you, didn’t he?

    A.      Yes, he did.

    Q.      What did he say to you?

    A.      He said that the President lied to him.

    Q.      Okay. Staff Sergeant Nelson, does a good soldier
            call his Commander-in-Chief a liar?


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United States v. Maynard Jr., No. 07-0647/AR

    A.      He has his own opinion, sir, that is the way I
            feel. I mean, he -- I don’t think it’s probably a
            good idea to do that, but I mean he is allowed to
            have his own opinion. That is what the country is
            about, you know, that is what we fought for, for
            him to be able to have his own opinion.

    Q.      Fair enough.   Thank you, Staff Sergeant Nelson.

Defense counsel did not object to this line of questioning and

the military judge did not give a limiting instruction to the

panel.

        Maynard made an unsworn statement with the assistance of

counsel.    In that statement he addressed the political

discussion testified to by Nelson.     He stated that while he

enjoyed politics and liked to have conversations about politics,

his feelings about the President went no further than

conversation.    He stated that he was “not anti-American, by no

means” and agreed that he was not involved with “staging any

rallies or any flags or any of those things.”

        Maynard also addressed what prompted his decision to go

AWOL.    He stated he “could not handle the stress levels” that he

attributed to Guerrero’s leadership style.     He also stated that,

since his return, he had received treatment at the post’s mental

health unit where he was diagnosed with Dysthymic Disorder.       He

stated he experienced low self-esteem, difficulty making

decisions, and feelings of hopelessness prior to going AWOL.       He

stated he had been “very angry, very moody, depressed a lot for

the better part of my adult life.”     He reported that his


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United States v. Maynard Jr., No. 07-0647/AR

treatment had helped him a great deal and he felt “a lot

different.”

     During argument on sentencing, trial counsel referred to

Guerrero’s testimony regarding the materials found in Maynard’s

room and Maynard’s political statements to Nelson.    Trial

counsel stated:   “[T]he accused, you know, he said, that he

never went further than that in making those [political]

statements.   But, we know that’s not true.   We know that he went

AWOL, and then he left something behind in his room that says

otherwise.”   Defense counsel did not object to this statement,

but did request an Article 39(a), UCMJ, 10 U.S.C. §

839(a)(2000), session at the conclusion of trial counsel’s

argument.

     In the Article 39(a), UCMJ, session, defense counsel

expressed concern over trial counsel’s closing argument because

he placed “inequitable emphasis on uncharged misconduct.”

However, defense counsel stated he did not want to object at

that time, “because of the issue of placing an emphasis on it

that the members would focus on.”    Defense counsel went on to

note three instances of alleged uncharged misconduct2 and stated

he was in an “awkward position” because a limiting instruction

would only draw the members’ attention to the problematic parts


2
  These included the reference to the unit’s deployment to Iraq,
the “political” items found in Maynard’s room, and the limited
amount of other personal belongings left in his room.

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United States v. Maynard Jr., No. 07-0647/AR

of the trial counsel’s argument.       The defense counsel ultimately

did not make an objection nor did he request a limiting

instruction.

     The military judge found that the three instances noted by

the defense were properly admitted aggravation evidence and thus

trial counsel’s comments on those instances was proper.      The

military judge went on to instruct the members as follows:

     Although you must give due consideration to all
     matters in mitigation and extenuation, as well as
     those in aggravation, you must bear in mind that the
     accused is to be sentenced only for the offense of
     which he has been found guilty. The offense of which
     he has been found guilty is AWOL, and that is the only
     offense that is before you and the only offense for
     which you may impose punishment.

                             Discussion

     When the defense fails to object to admission of specific

evidence, the issue is waived, absent plain error.      United

States v. Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007); United

States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998); see Rule

for Courts-Martial (R.C.M.) 905(e).      The plain error standard is

met when “(1) an error was committed; (2) the error was plain,

or clear, or obvious; and (3) the error resulted in material

prejudice to substantial rights.”      Hardison, 64 M.J. at 281.

Maynard bears the burden of demonstrating that the three prongs

of the test are met.   Id.

     Maynard argues that the military judge erred when he

admitted evidence of Maynard’s political views and allowed the


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United States v. Maynard Jr., No. 07-0647/AR

members to consider this evidence as aggravation evidence for

sentencing, that this error was plain or obvious, and prejudiced

his substantial rights.    He contends that evidence of his

political beliefs does not directly relate to the AWOL offense

and therefore was not proper aggravation evidence.    He also

argues that even if the evidence did directly relate to the

AWOL, it still must meet the standards of Military Rule of

Evidence (M.R.E.) 403.3    At oral argument, appellate defense

counsel narrowed the alleged error in this case to the military

judge’s failure to sua sponte rule that Guerrero’s testimony

regarding the “anti-war” or “anti-American” material in

Maynard’s room was improper aggravation evidence.    We will limit

our inquiry accordingly.

     The Government responds that the military judge did not err

because the evidence was proper aggravation evidence as it

directly related to Maynard’s attitude towards his crime and his

lack of rehabilitative potential.     The Government also argues

that the evidence was properly admissible to rebut Maynard’s

explanation for his AWOL, as presented in the two defense

exhibits.

     Even if we were to assume without deciding that Maynard is

correct as to his allegation of error, his burden is to show


3
  As there was no objection and the military judge did not raise
the issue sua sponte, no M.R.E. 403 balancing test was
conducted.

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United States v. Maynard Jr., No. 07-0647/AR

error that was clear and obvious.      Under the circumstances of

this case, we cannot conclude that Guerrero’s testimony that

Maynard had left behind only a few personal items when he

departed for a two-week leave so obviously lacked a direct

relationship to the AWOL offense that the military judge was

obliged to take sua sponte action.     This is true even though

Guerrero described some of the items as “[a]nti-American

propaganda” Guerrero testified that when he went to look for

Maynard in the barracks he found “a display of personal items”

and went on to describe the items he found.     This testimony

could be read to suggest that Maynard intentionally left the

articles in question as “a display” for those who would be

investigating his disappearance.

     Indeed, when this testimony was elicited from Guerrero, the

defense attorney did not object on any grounds.     He chose to

address the alleged anti-war and anti-American testimony by

eliciting testimony from Guerrero on recross-examination that

prior to the AWOL, Guerrero had not heard Maynard make any anti-

American statements nor seen him display any images or signs

about President Bush.

     In the Article 39(a), UCMJ, hearing after trial counsel’s

sentencing argument, the defense counsel noted his concern to

the military judge that trial counsel’s argument placed

“inequitable emphasis on uncharged misconduct.”     Presented with



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United States v. Maynard Jr., No. 07-0647/AR

the opportunity to object to the trial counsel’s argument, to

move for a mistrial, to ask for a limiting instruction, or to

propose any other solution, the defense counsel made a tactical

decision not to object in open court or request a limiting

instruction because he did not want to emphasize the testimony.

The defense tactic at trial not to object but rather cross-

examine Guerrero was consistent with the defense counsel’s

response to trial counsel’s closing argument -- by not objecting

the defense counsel did not emphasize the testimony.

     Maynard has failed to establish on appeal that the

admission of this testimony was so obviously erroneous, if

erroneous at all, that the military judge can be faulted for

taking no action and, like defense counsel, allowing its

admission without comment.   Because we find that any error was

not plain or obvious, we do not address the prejudice prong.

                             Decision

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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