             UNITED STATES, Appellant/Cross-Appellee

                                         v.

            Todd R. FORBES, Quartermaster First Class
               U.S. Navy, Appellee/Cross-Appellant

                                  No. 04-5005
                          Crim. App. No. 9901454

       United States Court of Appeals for the Armed Forces

                           Argued March 2, 2005

                         Decided August 25, 2005


EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.

                                     Counsel

For Appellee/Cross-Appellant: John B. Wells, Esq., (argued);
Captain Richard A. Viczorek, USMCR (on brief).


For Appellant/Cross-Appellee: Lieutenant Kathleen A. Helmann,
JAGC, USNR (argued); Lieutenant Colonel William K. Lietzau, USMC
(on brief).



Military Judge:    G. E. Champagne



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Forbes, No. 04-5005/NA


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer and enlisted

members, Appellee/Cross-Appellant (Appellee) was convicted,

contrary to his pleas, of rape, violating a lawful order (three

specifications), non-forcible sodomy, adultery (two

specifications), indecent assault (two specifications),

communicating indecent language (three specifications), impeding

an investigation (three specifications), and furnishing alcohol

to minors (two specifications), in violation of Articles 92,

120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 892, 920, 925, and 934 (2000), respectively.      The

adjudged sentence included a dishonorable discharge, confinement

for a period of fifteen years, forfeiture of all pay and

allowances, and reduction in pay grade to E-1.

    The convening authority approved the sentence, suspended

execution of the adjudged forfeitures, and waived execution of

automatic forfeitures for a period of six months under Article

58b, UCMJ, 10 U.S.C. § 858b (2000), with provision for payment

of the suspended and waived forfeitures to Appellee’s wife for

the benefit of his wife and son.       The Navy-Marine Corps Court of

Criminal Appeals set aside the findings and sentence in a

published opinion, United States v. Forbes, 59 M.J. 934 (N-M.

Ct. Crim. App. 2004) (en banc).




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United States v. Forbes, No. 04-5005/NA


       The Judge Advocate General of the Navy certified the case to

this Court for review of the following issues:

        I.    WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
              APPEALS ERRED WHEN IT HELD THE MILITARY JUDGE
              COMMITTED REVERSIBLE ERROR BY GIVING THE STANDARD
              INSTRUCTION ON APPELLEE’S SILENCE OVER APPELLEE’S
              OBJECTION WHEN THE MILITARY JUDGE BELIEVED THE
              INSTRUCTION WAS NECESSARY TO PREVENT THE MEMBERS
              FROM QUESTIONING APPELLEE’S SILENCE AND HOLDING
              IT AGAINST HIM.

        II.   SHOULD THE COURT FIND THE MILITARY JUDGE DID ERR,
              WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
              APPEALS ERRED WHEN IT HELD THERE WAS PRESUMPTION
              OF PREJUDICE FOR THIS INSTRUCTIONAL ERROR,
              REQUIRING AUTOMATIC REVERSAL UNLESS THE
              GOVERNMENT REBUTS THE PRESUMPTION BY A
              PREPONDERANCE OF THE EVIDENCE.

On Appellee’s cross-petition, we granted review of the following

modified issue:

              WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN
              ADDRESSING THE ISSUE OF FACTUAL AND LEGAL
              SUFFICIENCY OF THE EVIDENCE IN LIGHT OF ITS
              DECISION TO REVERSE ON AN INSTRUCTIONAL ERROR TO
              MEMBERS.

       The Court of Criminal Appeals concluded that the military

judge erred in giving an instruction, over defense counsel’s

objection, regarding Appellee’s silence.     Forbes, 59 M.J. at

940.    The court determined that the error was prejudicial,

applying a presumption of prejudice under the circumstances of

the case.     Id. at 941-42.   In addition, the court addressed the

issues of factual and legal sufficiency.     Id. at 935-36.      For

the reasons set forth below, we answer the certified and granted



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United States v. Forbes, No. 04-5005/NA


issues in the negative, and affirm the decision of the Court of

Criminal Appeals.



                      I.   INSTRUCTIONAL ISSUES

                 A. THE RULE GOVERNING INSTRUCTIONS
              WHEN AN ACCUSED DOES NOT TESTIFY AT TRIAL

       The Manual for Courts-Martial contains an express rule

governing the right of the defense to request or preclude an

instruction when the accused does not testify at trial:

       When the accused does not testify at trial, defense
       counsel may request that the members of the court be
       instructed to disregard that fact and not to draw any
       adverse inference from it. Defense counsel may
       request that the members not be so instructed.
       Defense counsel’s election shall be binding upon the
       military judge except that the military judge may give
       the instruction when the instruction is necessary in
       the interests of justice.

Military Rule of Evidence (M.R.E.) 301(g), included in Manual

for Courts-Martial, United States (2002 ed.) (2002 MCM), pt.

III.   Under the rule, the accused in a court-martial has the

absolute right to this protective instruction upon request by

defense counsel.    If the defense counsel requests that the

members not receive such an instruction, that request is

“binding” upon the military judge, subject only to the military

judge’s determination that the instruction is “necessary in the

interests of justice.”




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United States v. Forbes, No. 04-5005/NA


       M.R.E. 301(g) was promulgated in the aftermath of the

Supreme Court’s decision in Lakeside v. Oregon, 435 U.S. 333

(1978).   See 2002 MCM Analysis of the Military Rules of Evidence

A22-7 [hereinafter Drafter’s Analysis].    The Drafter’s Analysis

offers the following observation concerning Lakeside:

       Although the Supreme Court has held that it is not
       unconstitutional for a judge to instruct a jury over
       the objection of the accused to disregard the
       accused’s silence, it has also stated: “It may be wise
       for a trial judge not to give such a cautionary
       instruction over a defendant’s objection.”

Drafter’s Analysis at A22-7 (quoting Lakeside, 435 U.S. at 340-

41).   The Drafter’s Analysis then explains the rationale for

including the rule in the MCM:

       Rule 301(g) recognizes that the decision to ask for a
       cautionary instruction is one of great tactical
       importance for the defense and generally leaves that
       decision solely within the hands of the defense.
       Although the military judge may give the instruction
       when it is necessary in the interests of justice, the
       intent of the Committee is to leave the decision in
       the hands of the defense in all but the most unusual
       cases.

Drafter’s Analysis at A22-7.    The rule reflects the President’s

authority to grant members of the armed forces rights more

protective than those required by the Constitution.      See United

States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992).


               B.   PROCEEDINGS AT TRIAL AND ON APPEAL

       At the close of the case on the merits, the military judge

conducted a session under Article 39(a), UCMJ, 10 U.S.C. § 839


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United States v. Forbes, No. 04-5005/NA


(2000), to discuss proposed instructions with counsel.    The

military judge stated that he intended to give “[t]he

instruction on the accused’s silence.”     He then quoted the

proposed instruction:   “The accused has an absolute right to

remain silent.   You are not to draw any inference adverse to the

accused.”   Defense counsel objected to the proposed instruction,

which led to the following colloquy:

     MJ: You object to it? Well, I will have to consider
     that. That is a standard instruction. Normally it is
     given and its intent -- my intent is to protect the
     accused from any adverse feelings by the members. I
     know it calls attention to it, and that is probably
     your objection to it. I understand. Do you want to
     be heard further?

     ADC:   No, sir.

     MJ:    Let me think about that one.

     After a short recess, the military judge reconvened the

Article 39(a) session and returned to the proposed instruction:

     MJ: There were two issues outstanding, one was
     whether I would give the instruction on the accused’s
     silence. I feel that that is necessary to give unless
     the defense has case law to cite for the proposition
     that I shouldn’t give it even though the defense
     objects.

     ADC:   You feel it’s necessary?

     MJ:    I do feel it’s necessary.

     ADC:   We would object to giving them that instruction.

     MJ: Do you have any case law to support the
     proposition it’s not to be given over defense
     objection?



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United States v. Forbes, No. 04-5005/NA


     ADC: No, sir. Other courts have argued in the
     military -- have objected --

     MJ:     No case law?

     ADC:    No, sir.

     MJ: I just think it’s important to tell the members
     that so they don’t go back and ask the question about
     why the accused didn’t testify. That’s my thought --
     and also instruct them that they are not to hold that
     against the accused in any way.

     ADC:    Yes, sir.

     After another brief recess, the military judge noted for

the record that the defense had made a request during the recess

concerning the sequence of the proposed instruction.    The

military judge stated that the defense had requested, and he had

agreed, to not give the disputed instruction as the last

instruction, but instead to give it before instructing the

members on findings by exceptions.     The trial counsel did not

object to the proposed sequence.

     Despite this assurance, the disputed instruction was the

last instruction provided to the members by the military judge.

When the members then left the courtroom for a brief recess

prior to closing arguments, the military judge recognized his

misstep regarding the sequence of instructions: “Counsel, I

apologize.    It was an oversight on my part.”

     After announcement of the findings, defense counsel moved

for a mistrial citing several issues, including the content and



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United States v. Forbes, No. 04-5005/NA


timing of the disputed instruction.    The military judge denied

the motion, adding:   “There was error, my error, that I had

agreed to give the accused’s silence instruction other than the

last instruction in my substantive instructions.    However, I

don’t think that that was an error of such a grave nature to

warrant the extraordinary remedy of a mistrial.”

     In the Court of Criminal Appeals, Appellee contended that

the military judge had erred in giving the failure-to-testify

instruction over his objection.    The court, in an en banc

decision, concluded that the military judge erred, and that the

error was prejudicial.    Forbes, 59 M.J. at 942.   One judge

concluded that the military judge erred in giving instruction

over defense objection, but that the error was not prejudicial.

Id. at 943-44 (Ritter, J., concurring in part and dissenting in

part).   Another judge concluded that there was no error.     Id. at

945-47 (Villemez, J., concurring in part and dissenting in

part).


                           C.   DISCUSSION

1.   Standard of review

     We consider allegations of error involving mandatory

instructions under a de novo standard of review. See United

States v. Smith, 50 M.J. 451, 455 (C.A.A.F. 1999).

We review issues concerning non-mandatory instructions for an



                                  8
United States v. Forbes, No. 04-5005/NA


abuse of discretion.   United States v. Damatta-Olivera, 37 M.J.

474, 478 (C.M.A. 1993).

     The court below noted that because M.R.E. 301(g) requires a

balancing of both mandatory and non-mandatory components, the

standard of review should take into account the specific

attributes of the rule.   Forbes, 59 M.J. at 939.    The court

noted that when there is a defense objection to the instruction,

a military judge is bound by the defense election unless the

judge performs a balancing test that weighs the defense concerns

against the case-specific interests of justice.     Id.     In that

context, the court concluded the most appropriate analogy could

be found in the standard for reviewing a military judge’s

application of the balancing test under M.R.E. 403 (exclusion of

relevant evidence on the grounds of prejudice, confusion, or

waste of time).   See Forbes, 59 M.J. at 939 (citing United

States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)).       Applying

that standard, the court offered the following approach to the

standard of review:

     [W]hen a military judge gives a fail-to-testify
     instruction over defense objection after having
     identified the case-specific “interests of justice”
     that support his decision and articulating his
     analysis of those interests relative to the defense
     election, then he should be accorded great deference
     under a standard of review of abuse of discretion. If
     he identifies the interests of justice in question but
     does not articulate his balancing of those interests
     with the defense election, he is accorded less



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United States v. Forbes, No. 04-5005/NA


     deference. If he does not identify interests of
     justice at all, the standard of review is de novo.

Forbes, 59 M.J. at 939.    The court also observed that a military

judge’s decision to override the otherwise binding election of

the defense must be based on something more than a generalized

“fear that the members would hold the appellant’s silence

against him” because “such a fear could be argued in every case

of silence of the accused.”   Id. at 939-40.    The court then

noted that the military judge did not identify the specific

interests of justice at stake in the present case.    In that

context, the court concluded that the decision was subject to de

novo review.   We agree with the court below that the standard of

review for issues under M.R.E. 403 provides an appropriate

analogy.   We adopt the framework articulated by the court, both

in terms of the general approach to the standard of review, and

the application of that approach to the present case.

2.   Review of military judge’s decision to override the
     defense election

     The court below reviewed the record and concluded that the

military judge did not consider any case-specific interests of

justice before overriding the defense election.    Forbes, 59 M.J.

at 939.    The court concluded:   “Based on our review of the

record, we find that the only reason the military judge gave the

instruction was his fear that the members would hold the




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United States v. Forbes, No. 04-5005/NA


appellant’s silence against him, unless specifically instructed

not to do so.”   Id.   The court added:

     The military judge’s failure to articulate any
     “interests of justice,” other than the standard fear
     of member misuse of the appellant’s silence, indicates
     that such “interests of justice” simply did not exist.
     The standard fear that members might hold an accused’s
     silence against him has already been accounted for by
     the President and resolved by giving the election to
     the defense team, where we think it rightfully
     belongs. In the words of the Analysis to Mil.R.Evid.
     301(g), we do not think that this is one of those
     “most unusual cases” that warranted giving the
     instruction over defense objection.

Id. at 940.

     The Government’s brief offers a number of theories as to

why the military judge might have concluded that his evaluation

of the interests of justice should prevail over the defense

election in the present case, including the seriousness of the

charges of sexual misconduct; the similar factual scenario

surrounding each of the charges; the testimony of the alleged

victims identifying Appellee as the perpetrator and as the only

other witness to the events; and the likelihood that the members

would expect rebuttal testimony from a person of his status as

married enlisted person with eighteen years of service.   None of

these theories identifies anything unusual that would

differentiate this court-martial from other cases involving mid-

level noncommissioned officers charged with sexual misconduct in

which the defense might prefer not to have the accused’s silence



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United States v. Forbes, No. 04-5005/NA


specifically called to the attention of the members.    The

Government’s brief merely notes factors that, in any particular

case, might weigh in defense counsel’s exercise of tactical or

strategic judgment about how best to conduct the defense.     The

President, in Rule for Courts-Martial 310(g) has determined that

this decision should be left to the defense except in an unusual

case.    A generalized fear that the panel will misuse an

accused’s silence, by itself, does not provide a basis for

concluding that the circumstances of a case are so unusual as to

warrant rejection of a defense objection to the instruction.      We

have conducted our own de novo review of the record to determine

whether there were any unusual circumstances in the present case

so obvious that it was not necessary for the military judge to

articulate reasons for providing the instruction over defense

objection.    We agree with the observations of the court below

that such circumstances “simply did not exist” in the specific

factual setting of the present case.    See Forbes, 59 M.J. at

940.

3.      The assessment of prejudice

        The court below also addressed the standard for determining

when an erroneous decision to override a defense election was

prejudicial.    The defense, focusing on the impact on the

individual’s self-incrimination rights under the Fifth

Amendment, suggested that the Government was required to prove


                                  12
United States v. Forbes, No. 04-5005/NA


beyond a reasonable doubt that the error was harmless, while the

Government contended that the accused was responsible for

demonstrating material prejudice.     See id. at 940.   The court

rejected the defense standard because the Supreme Court in

Lakeside already had treated the issue as nonconstitutional, and

it also rejected the Government’s approach on the grounds that

the “plain language of the rule, coupled with the strong

language in the Analysis” made it inappropriate to place any

burden on Appellee to show prejudice from a violation of this

uniquely “defense-friendly” rule.     Id. at 941.

      Taking a “middle ground” between these positions, the Court

of Criminal Appeals concluded:

      [W]hen a military judge commits error by giving this
      instruction over defense objection in the absence of
      articulated case-specific interests of justice, a
      presumption of prejudice results. The Government then
      bears the burden of showing by a preponderance of the
      evidence why the appellant was not prejudiced by the
      instruction. Admittedly, this may be a difficult
      burden for the Government to bear. But, this court
      did not write the Rule, and on the issue of an
      appropriate test for prejudice, we feel compelled to
      take our cues from the President’s language that so
      clearly favors the military accused.

Id.

      In deciding that the Government did not carry its burden of

rebutting the presumption of prejudice, the court emphasized two

considerations.   First, with respect to the Government’s

reliance on the strength of the prosecution case, the court



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United States v. Forbes, No. 04-5005/NA


noted that the prosecution’s evidence, while strong, was not

dispositive of the factual and legal issues of guilt.    Even in

the face of a formidable prosecution case, the members could

have found reasonable doubt on one or more of the charges in

light of the defense’s twenty-two witnesses, two stipulations of

expected testimony, a stipulation of fact, and several other

exhibits.   The court also pointed out that the defense offered

serious and repeated objections to the instruction, then

attempted to ensure that it was not the last instruction, and

finally moved for a mistrial.     The court concluded that these

efforts demonstrate that, in the present case, it was “manifest

that, for the defense team, the instruction was a potential

show-stopper.”   Id. at 941-42.

     The test for prejudice articulated by the court below

represents a well-reasoned approach in light of the specific

requirements of M.R.E. 301(g).    We adopt this approach, and

agree with the lower court’s application of the test to the

present case.



   II.   THE DISCUSSION OF LEGAL AND FACTUAL SUFFICIENCY IN THE
              OPINION OF THE COURT OF CRIMINAL APPEALS

     Under Article 66(c), UCMJ, the Court of Criminal Appeals:

     may affirm only such findings of guilty and the
     sentence or such part or amount of the sentence, as it
     finds correct in law and fact and determines, on the
     basis of the entire record, should be approved. In


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United States v. Forbes, No. 04-5005/NA


     considering the record, it may weigh the evidence,
     judge the credibility of witnesses, and determine
     controverted questions of fact, recognizing that the
     trial court saw and heard the witnesses.

10 U.S.C. § 866(c)(2000).   Article 66(c) charges the Court

of Criminal Appeals with reviewing both the legal

correctness of the trial-level proceedings and the legal

and factual sufficiency of the evidence to support the

findings of guilty, as well as the appropriateness of the

approved sentence.

     In its opinion in the present case, the Court of Criminal

Appeals addressed the state of the evidence prior to discussing

the instructional issue.    After discussing Article 66(c) and

applicable precedent, the court offered the following brief

assessment as to factual sufficiency:

          We conclude that a reasonable factfinder could
     properly have found, beyond a reasonable doubt, that
     the appellant committed each of the offenses of which
     he stands convicted. Moreover, after careful
     consideration, we are convinced beyond a reasonable
     doubt that the appellant committed each of those same
     offenses.

Forbes, 59 M.J. at 936.

     Appellee contends that the lower court erred by evaluating

the legal and factual sufficiency of the evidence of guilt in

light of its subsequent resolution of the appeal on the

instructional issue.   We disagree.   While there may be good

reasons in a particular case for an intermediate appellate court



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United States v. Forbes, No. 04-5005/NA


to focus only on case-dispositive issues, the court is not

precluded from offering alternative holdings.    In the present

case, for example, the court below might have wanted this Court

to know that it had performed its responsibility under Article

66(c) to weigh the legal and factual sufficiency of the evidence

in the event we were to disagree with its decision on the

instructional issue.   In the present case, by affirming the

decision of the court below on the instructional issue, our

decision will result in setting aside the findings and sentence.

Once the findings are set aside, the views of the court below on

the sufficiency of the evidence with respect to those findings

are irrelevant to any further proceeding.     If, after a

rehearing, there is a conviction that is reviewed by the court

below, the court will be obligated to conduct a de novo review

under Article 66(c) based upon the record of the rehearing, not

the record of the proceedings which resulted in the findings

being set aside.



                            III. CONCLUSION

     The certified questions and the granted issue are answered

in the negative.   The decision of the United States Navy-Marine

Corps Court of Criminal Appeals setting aside the findings and

the sentence is affirmed.    A rehearing may be ordered in

accordance with decision of the Court of Criminal Appeals.


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United States v. Forbes, No. 04-5005/NA


     CRAWFORD, Judge (dissenting):

     I respectfully dissent from (1) the extensive rulemaking by

the majority, and (2) the majority’s failure to analyze the

harmless error rule in the context of this case.   Article 59(a),

Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 859(a)

(2000).   I agree with Judge Learned Hand that “[i]t would be

strange indeed to conclude that this cautionary instruction

violates the very constitutional provision it is intended to

protect.”   Lakeside v. Oregon, 435 U.S. 333, 339 (1978).

     Dissatisfied with Military Rule of Evidence (M.R.E.)

301(g), the majority today amends that rule.   Among today’s

innovations to M.R.E. 301(g) are: (1) a new “presumption of

prejudice” for violations of the rule, (2) a requirement that

military judges identify “case-specific” interests of justice --

other than “the generalized fear that the panel” would hold the

appellant’s silence against him; (3) a special test, borrowed by

“analogy” to M.R.E. 403, balancing these interests of justice

with “the defense election;” and (4) an elaborate tripartite

standard of review, including a new “middle ground” that applies

when condition (2) above is satisfied, but (3) is not.   Seldom

has this Court engaged in so much rulemaking in a single case.
United States v. Forbes, No. 04-5005/NA


                              Background

     The Supreme Court has described the “constitutional

foundation” underlying the Fifth Amendment privilege against

self-incrimination as:

     [T]the respect a government -- state or federal --
     must accord to the dignity and integrity of its
     citizens. To maintain a “fair state-individual
     balance,” to require the government “to shoulder the
     entire load,” . . . to respect the inviolability of
     the human personality, our accusatory system of
     criminal justice demands that the government seeking
     to punish an individual produce the evidence against
     him by its own independent labors, rather than by the
     cruel, simple expedient of compelling it from his own
     mouth.

Miranda v. Arizona, 384 U.S. 436, 460 (1966) (citation omitted).

     In the military justice system, Article 31, UCMJ, 10 U.S.C.

§ 831, serves the same purpose:    Congress intended that article

“to secure to persons subject to the Code the same rights

secured to those of the civilian community under the Fifth

Amendment to the Constitution of the United States –- no more

and no less.”   United States v. Armstrong, 9 M.J. 374, 380

(C.M.A. 1980) (citing United States v. Eggers, 3 C.M.A. 191, 195

11 C.M.R. 191, 195 (1953)).

     To the extent the Fifth Amendment and Article 31 are given

effect by M.R.E. 301(g), the “primary purposes” of the right

against self-incrimination are:    “[1] to shield the individual’s

thought processes from Government inquiry and [2] to permit an

individual to refuse to create evidence to be used against him.”


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United States v. Forbes, No. 04-5005/NA


    Manual for Courts-Martial, United States (2002 ed.) (MCM),

Analysis of the Military Rules of Evidence A22-5 [hereinafter

Drafter’s Analysis].

       Clearly, this case does not present such threats as were

envisioned by the drafters of the Fifth Amendment or the

Military Rules of Evidence.   The Government has not sought by

any expedient to compel Appellee/Cross-Appellant’s (Appellee’s)

testimony, nor in any sense required him to create inculpatory

evidence.1   On the contrary, the military judge with obvious

deliberation determined that it was necessary to instruct the

panel (albeit against Appellee’s wishes) in order to safeguard

his constitutional rights.    Where a judge gives a correct

instruction, upon determining that the interests of justice so

require, it is error to find prejudice.

       Furthermore, because the Manual for Courts-Martial nowhere

requires military judges to jump through the hoops erected by

the majority’s opinion, I would resolve this case by looking to

the plain wording of M.R.E. 301(g) and the test for prejudice in

Article 59(a).




1
   Nor is it reasonable to conclude that the prospect of a
cautionary instruction would itself “compel” an accused to self-
incriminate at trial. See Bordenkircher v. Hayes, 434 U.S. 357,
363-65 (1978) (in pursuing plea bargain, prosecutor did not
exceed constitutional bounds), Miranda, 384 U.S. at 460.

                                  3
United States v. Forbes, No. 04-5005/NA


                      Constitutional Concerns

     Appellant’s allegation of constitutional error is correctly

resolved by reference to Lakeside.       In that decision, the

Supreme Court sided with the federal courts that had “generally

held that giving the protective instruction over the defendant’s

objection is not a constitutional violation.”      Id. at 336 n.3

While Lakeside expressly addressed only the Fifth Amendment

privilege against self-incrimination and the Sixth Amendment

right to counsel, I agree with the Court of Criminal Appeals

(CCA) that the court implicitly rejected any due process

argument by declining to address it.      United States v. Forbes,

59 M.J. 934, 940-41 (N-M. Ct. Crim. App. 2004).

     Without the looming threat of constitutional error, the

states have been free to adopt different approaches to the

present issue.   Notably, the Supreme Judicial Court of

Massachusetts recently joined what it concluded was a trend

towards allowing judges to give the instruction over a

defendant’s objection:   “‘Most courts . . . [view] the giving of

such an instruction over objection as not prejudicial error.’

Our [prior contrary] rule is one that has been soundly

criticized . . .   and ‘carries the doctrine of self-

incrimination to an absurdity.’”       Commonwealth v. Rivera, 805

N.E.2d 942, 952-53 (Mass. 2004) (citations omitted) (emphasis

added).   Evocative of the Drafter’s Analysis of Rule 301(g), the


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United States v. Forbes, No. 04-5005/NA


Rivera court held, “judges should not give the instruction when

asked not to do so.    We are merely saying that it is [no longer]

per se reversible error to do so.”     Id. at 953 n.9

                   Military Rule of Evidence 301(g)

        Like the individual states, the military system has its own

rule.    Ours was prescribed by the President in the Manual for

Courts-Martial, and establishes both the affirmative duty and

discretionary authority of trial judges to instruct on an

accused’s right not to testify.    Specifically, before a military

judge may instruct over a defense objection, M.R.E. 301(g)

requires either (1) a necessity “in the interests of justice,”

or (2) a “most unusual” case.     Drafter’s Analysis at A22-7.

Against these bare requirements, the CCA’s ornamentation of the

rule -– of which the majority is so enamored -- puts us in the

shoes of legislators and is unfaithful to its text.     The text of

Rule 301(g) (i.e., the pre-Forbes version appearing in the MCM)

provides:

        When the accused does not testify at trial, defense
        counsel may request that the members of the court be
        instructed to disregard that fact and not to draw any
        adverse inference from it. Defense counsel may
        request that the members not be so instructed.
        Defense counsel’s election shall be binding upon the
        military judge except that the military judge may give
        the instruction when the instruction is necessary in
        the interests of justice.

M.R.E. 301(g) (emphasis added).    The Drafter’s Analysis notes:




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United States v. Forbes, No. 04-5005/NA


     [C]ounsel for the defense may determine that this very
     instruction may emphasize the accused’s silence,
     creating a prejudicial effect. Although the Supreme
     Court has held that it is not unconstitutional for a
     judge to instruct a jury over the objection of the
     accused to disregard the accused’s silence, it has
     also stated: “It may be wise for a trial judge not to
     give such a cautionary instruction over a defendant’s
     objection.” Rule 301(g) recognizes that the decision
     to ask for a cautionary instruction is one of great
     tactical importance for the defense and generally
     leaves that decision solely within the hands of the
     defense. Although the military judge may give the
     instruction when it is necessary in the interests of
     justice, the intent of the Committee is to leave the
     decision in the hands of the defense in all but the
     most unusual cases.

Drafter’s Analysis at A22-7. (citations omitted) (emphasis
added).

               Case-Specific Interests of Justice

     Plainly (and I must therefore assume deliberately) absent

from the text of M.R.E. 301(g) and the Drafter’s Analysis is the

majority’s new requirement that a military judge make “case-

specific” factual findings on the record.   Until such a

requirement is placed in M.R.E. 301(g) by someone with the

authority to do so, it has no place in an opinion of this Court.

Indeed, when the President has desired to impose such a

requirement, he has done so expressly.    For example, Rule for

Courts-Martial (R.C.M.) 905(d), M.R.E. 304(d)(4), M.R.E.

311(d)(4), and M.R.E. 321(f) each provides, “Where factual

issues are involved in determining a motion, the military judge

shall state the essential findings on the record.”   With those



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United States v. Forbes, No. 04-5005/NA


rules, a failure to make factual findings is error, not because

this Court wishes it so, but because the rules make it so.    In

the present case, the military judge satisfied M.R.E. 301(g) by

twice stating on the record that he thought the instruction on

Appellee’s silence was “necessary.”

     MJ: I feel that it is necessary to give [the
     instruction] unless the defense has case law to cite
     for the proposition that I shouldn’t give it even
     though the defense objects.

     ADC: You feel it’s necessary?

     MJ: I do feel it’s necessary . . . . I just think
     it’s important to tell the members that so they don’t
     go back and ask the question about why the accused
     didn’t testify. That’s my thought -- and also
     instruct them that they are not to hold that against
     the accused in any way.

This is all M.R.E. 301(g) requires, and it is not for this Court

to second-guess the circumstances of trial, or the apparent

necessity of a cautionary instruction.

     Indeed, the majority’s ex-post facto rulemaking on this

point affects an end run around the longstanding principle that

military judges -- not appellate courts -– are better placed to

perceive and respond to the exigencies of trial.   See, e.g.,

United States v. Ovando-Moran, 48 M.J. 300, 304 (C.A.A.F. 1998)

(“The military judge was in the best position to evaluate [the

member’s] responses [during voir dire] and determine whether he

was capable of following the judge’s instructions.”).   Here,

Appellee faced very serious charges of rape, sodomy, adultery,


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United States v. Forbes, No. 04-5005/NA


and obstruction of justice (“sexual misconduct” in the view of

the majority) in connection with three young female recruits who

were less than half his age.   That the military judge was

concerned that prejudice would result from Appellee’s decision

not to testify is clear on the record.    The military judge’s

hesitancy about not giving the instruction (he recessed twice

before ruling) was palpable, and evinces a thoughtful decision.

I am not prepared to substitute my judgment for that of the

trial judge.

     Apart from lacking a legitimate basis in the rule, the

majority’s requirement for “case specific interests of justice”

draws an untenable distinction between what I understand to be

“generalized” interests of justice (i.e., interests rooted in

the “standard” fear “that the members would hold the appellant’s

silence against him,”) and specialized or “unusual” interests of

justice (presumably rooted in some other brand of fear).     The

majority regards interests of the second sort as more legitimate

and more deserving of a fail-to-testify instruction.   United

States v. Forbes, 61 M.J. __ (11).   This distinction, however,

fails to perceive what I think the military judge perceived:

that the circumstances of Appellee’s trial required an effective

defense strategy or, that failing, the protective vigilance of a

trial judge.   I assume the trial judge was aware that this Court

has not been reluctant to impose a duty on military judges to


                                 8
United States v. Forbes, No. 04-5005/NA


ensure the protection of individual rights.    United States v.

Collins, 60 M.J. 261 (C.A.A.F. 2004) (when the only member to a

sanity board convened under R.C.M. 706 appears to change his

mind, the military judge abuses his discretion in not ordering

any further inquiry into the accused’s mental responsibility);

United States v. Grigoruk, 52 M.J. 312 (C.A.A.F. 2000)

(Obligation placed on trial judge.    When the defense fails to

call Dr. Underwager, an approved defense expert, the military

judge must make an inquiry on the record or an inquiry must be

ordered through a hearing under United States v. Dubay, 17

C.M.A. 147, 37 C.M.R. 411 (1967)); United States v. Clark, 49

M.J. 98 (C.A.A.F. 1998) (holding that there was error by the

defense in failing to call reconstruction expert who had

previously been hired by the defense).

                Harmless Nonconstitutional Error

     Assuming, arguendo, that giving the cautionary instruction

was somehow error, this case, in any event, would present only

“a violation of a Manual provision promulgated by the President

to ensure a military accused a fair trial.”    United States v.

Rush, 54 M.J. 313, 315 (C.A.A.F. 2001) (employing Article 59(a)

after failing to find constitutional error).   Thus, Appellee can

succeed only by demonstrating that the error substantially

influenced the findings, or if this Court is otherwise “left in

grave doubt” as to his convictions.   See, e.g., United States v.


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United States v. Forbes, No. 04-5005/NA


Armstrong, 53 M.J. 76, 81 (C.A.A.F. 2000) (citing Kotteakos v.

United States, 328 U.S. 750 (1946); United States v. Adams, 44

M.J. 251, 252 (C.A.A.F. 1996)).2

     Article 59(a) applies to all nonconstitutional errors,

notwithstanding the majority’s exemption by fiat for “defense-

friendly” rules.   61 M.J. __ (13).   Regardless of whether the

CCA’s new test for prejudice is “well-reasoned,” it has no basis

in the MCM, and the majority errs in adopting it today.

Employing the appropriate test for prejudice, the record in this

case satisfies me that the conviction below may stand.3

     Particularly detrimental to Appellee’s allegations of

prejudice are the members’ prior exposure in voir dire to the

instruction later complained of, and the strength of the

Government’s case.   Against the backdrop of the comprehensive

reasonable doubt instructions given at the end of the trial,



2
  See also Rivera, 805 N.E.2d at 953 (“If the instruction is
given over defendant’s objection, a liberal harmless error rule
would still seem warranted.”) (citing Green, The Failure to
Testify Instruction, 14 Willamette L. J. 43, 52 (1977)).
3
  The CCA went outside Article 59(a) to find prejudice below.
After determining M.R.E. 301(g) to be “a defense-friendly rule,”
the CCA presumed prejudice to the defendant, and required the
Government to prove otherwise by a preponderance of the
evidence. Forbes 59 M.J. at 941. The Navy-Marine Court’s self-
described “new test for prejudice,” of which the CCA
acknowledges the Government “was not aware,” represents a
departure from our standard analysis under Article 59(a), and is
itself error. Id.



                                10
United States v. Forbes, No. 04-5005/NA


Appellee has not established any material prejudice to his

substantial rights.

                         Voir Dire Instruction

     The cautionary instruction, as given at the end of trial,

was not novel to the members’ ears, but mirrored a prior

instruction given to them during voir dire.4     The instruction

complained of reads as follows:

     The accused has an absolute right to remain silent.
     You will not draw any inference adverse to the accused
     by the fact that he did not testify as a witness. The
     fact that the accused has not testified must be
     disregarded by you.

During voir dire, and without objection from the

defense, the military judge had earlier alerted the members:

     You may expect or desire the accused to testify. The
     accused has an absolute right not to testify. The
     fact that an accused may elect not to testify in his
     own behalf may not be considered adverse to the
     accused in any way. . . . Is there any court member
     who cannot follow this instruction?

The military judge recorded a negative response from all

members.   Thus, where the members indicated they could follow

the law as given to them by the military judge, I find no reason

to conclude otherwise.    See United States v. Thompkins, 58 M.J.

43, 47 (C.A.A.F. 2003) (“absent evidence to the contrary, court

members are presumed to comply with the military judge's


4
   Voir dire occurred on August 17, 1998.    The instructions were
read to the members on August 22, 1989.



                                  11
United States v. Forbes, No. 04-5005/NA


instructions.”); Lakeside, 435 U.S. at 340 n.10-11

(characterizing as “dubious,” “doubtful,” and “speculative” the

suggestion that a jury would disregard such an inference

instruction); United States v. Youngblood, 47 M.J. 338 (C.A.A.F.

1997) (military panels are often called “blue ribbon” panels due

to the quality of the members).    The risk that second

instruction prejudicially “emphasized” Appellee’s silence is

therefore inconsequential.5

                  The Strength of Government’s Case

       The final indicium of harmlessness in this case is the

strength of the evidence against Appellee.    Four complaining

witnesses -- each about half Appellee’s age -- testified against

him.    Two witnesses providing strikingly similar testimony about

Appellant’s modus operandi of driving to remote areas with

female Navy recruits before assaulting them.6    The defense case

was weak by comparison:    Appellant’s strategy at trial was

limited to impeaching the credibility of the alleged victims,

whose testimony otherwise went unchallenged.    In light of the

imbalance on the merits, any error by the military judge was


5
  See Ovando-Moran, 48 M.J. at 302-04. There, a member indicated
during voir dire that he would regard the accused’s silence at
trial to be “unnatural.” When, in response to further
questioning, the member responded that he would not draw any
adverse inference from the accused’s silence, the military judge
denied a defense challenge for cause. This Court affirmed.
6
    See Testimony of CF (R. 519-26); Testimony of JB (R. 738-60).

                                  12
United States v. Forbes, No. 04-5005/NA


unlikely to have substantially influenced the findings, and was

therefore harmless under Article 59(a).

                           Conclusion

     While I agree with Judge Learned Hand that when an accused

asserts his privilege against self-incrimination, it may

sometimes be “better . . . for the trial judge to say nothing

about it,” I likewise agree with Judge Hand that, “to say that

when he does, it is error, carries the doctrine of self-

incrimination to an absurdity.”    435 U.S. at 341 n.12 (quoting

Becher v. United States, 5 F.2d 45, 49 (2d Cir. 1924)).    For

these reasons, I respectfully dissent.




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