             UNITED STATES, Appellee/Cross-Appellant

                                         v.

              Alan D. ESLINGER, Sergeant First Class
                U.S. Army, Appellant/Cross-Appellee

                        Nos. 10-0537 and 11-5002

                         Crim. App. No. 20070335

       United States Court of Appeals for the Armed Forces

                         Argued January 24, 2011

                           Decided July 8, 2011

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

                                     Counsel

For Appellant/Cross-Appellee: Captain Matthew T. Grady
(argued); Colonel Mark Tellitocci, Lieutenant Colonel Jonathan
F. Potter, Major Laura R. Kesler, and Captain Jess B. Roberts
(on brief); Captain Jennifer A. Parker.

For Appellee/Cross-Appellant: Captain Joshua W. Johnson
(argued); Colonel Michael E. Mulligan, Major Christopher B.
Burgess, and Major Adam S. Kazin (on brief).

Military Judge:    Michael J. Hargis



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


     Judge BAKER delivered the opinion of the Court.

     A general court-martial composed of officer and enlisted

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

to his pleas, of three specifications of possession of child

pornography, in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006).   The adjudged

and approved sentence included confinement for three years,

reduction to pay grade E-1, forfeiture of all pay and

allowances, and a bad-conduct discharge.

     On review, the United States Army Court of Criminal Appeals

affirmed.1

     We granted review of the following issue:

     WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR BY
     PERMITTING THE GOVERNMENT TO OFFER EVIDENCE IN THE
     FORM OF OPINION TESTIMONY FROM SENIOR OFFICER AND NCO
     WITNESSES WITH NO PERSONAL KNOWLEDGE OF APPELLANT’S
     DUTY PERFORMANCE TO OPINE THAT HE SHOULD BE SEPARATED
     FROM THE ARMY AND SPECIAL FORCES.

     In addition, the Government certified the following

issue:

     WHETHER THE RESTRICTIONS UNDER R.C.M. 1001(b)(5) APPLY
     TO REBUTTAL EVIDENCE SUBMITTED UNDER R.C.M. 1001(d)
     AND WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS
     ERRED IN FINDING THAT THE MILITARY JUDGE COMMIT[T]ED
     PLAIN AND OBVIOUS ERROR WHEN HE PERMITTED INTRODUCTION
     OF GOVERNMENT REBUTTAL TESTIMONY TO DEFENSE “RETENTION
     EVIDENCE” WHEN THERE WAS NO DEFENSE OBJECTION.



1
  United States v. Eslinger, No. ARMY 20070335, 2010 CCA LEXIS
64, at *48 (A. Ct. Crim. App. May 21, 2010).


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


     In our view the legal questions at the root of these issues

were addressed in United States v. Griggs, 61 M.J. 402 (C.A.A.F.

2005).   Thus the question presented here is how the Griggs

analysis applies to these facts.       For the reasons stated below

we conclude that if any errors with regard to a lack of

foundation for lay opinions were clear and obvious, they did not

substantially influence the adjudged sentence.

                             BACKGROUND

     Appellant was a Special Forces medic who had served in the

Army for eighteen years.    In March 2006, Appellant had been

living with his girlfriend Loren R. Masden for two years.      She

and Appellant exchanged various computer passwords as a sign of

trust.   On March 4, 2006, while Appellant was at “Pinon Canyon

training site in Trinidad,” Masden logged onto Appellant’s

laptop and discovered images of child pornography on the

computer.   She immediately called her sister, who came to Masden

and Appellant’s home and also saw the images.      Masden testified

that her sister saw a digital fingerprint indicating that the

pictures were downloaded on February 14, 2006, a time at which

Appellant had been in North Carolina for training.      Masden was

upset and went to stay at her sister’s, returning a few days

later to pack her things.    On March 8, 2006, she reported the

images to law enforcement.




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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


     Appellant testified that at the time the images were

downloaded, he was in training and occasionally did not have

possession of his laptop or remote storage drives, and that some

of the images may have been downloaded unintentionally while

intending to download adult pornography and other materials from

a file-sharing website.   There were over 1,700 pornographic

images found on Appellant’s computer that depicted children.

These images included various forms of child pornography

including anal, oral, and vaginal penetration of children under

the age of two.

     The members found Appellant guilty of the charged offenses.

At sentencing Appellant introduced testimony from three

mitigation witnesses, each of whom basically testified that in

his opinion, Appellant should be retained in the armed forces.

Master Sergeant (MSG) Willie D. Gibbons, a member of 3d

Battalion, 10th Special Forces Group, stated among other things,

“I’ve already packed his bags . . . I would take him on my team

in a minute,” and “Just like an alcoholic . . . I think, you

know, something needs to be done . . . . Past that, I think he

needs to stay in the service.”   Captain Timothy J. Coffman, the

battalion physician assistant, stated, “He is my best medic” and

“I think we should rehabilitate him . . . . I mean, he’s a great

soldier.   He has a great service record as far as military

activities.”   Sergeant First Class Shawn Dishman, a member of


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


Appellant’s company, whose testimony was admitted through a

stipulation of expected testimony stated:

     I definitely think that there is a place for
     [Appellant] in the Army and within the 10th Special
     Forces. I truly believe that Special Forces is the
     only place for SFC Eslinger.

          I would be proud to serve with him in the future
     despite this conviction. . . . [I] would welcome him
     to my team any day.

     In rebuttal to Appellant’s mitigation evidence, the

Government introduced testimony from five witnesses.   Major

(MAJ) Isaac J. Peltier, the acting battalion commander of 3rd

Battalion, 10th Special Forces Group, Appellant’s battalion,

stated:

     It is my opinion that, clearly [Appellant] should not
     deploy to combat with this organization. . . . And for
     that matter, he should not return to this -- the 3rd
     Battalion. And I’ll go a step further in my opinion,
     based on his pattern of misconduct, he shouldn’t even
     be in the Army.

Sergeant Major (SGM) Jason M. Krider, Appellant’s battalion

command sergeant major (CSM), testified, “There is no place in

our ranks for Sergeant Eslinger.”   MSG Timothy D. Stensgaard,

one of the two team sergeants of the tactical support detachment

in the 10th Special Forces Group testified, “As a leader in the

United States Army, I don’t feel that based on his prior

incidences and this conviction how he [sic] could remain in the

U.S. Army and effectively serve.”   Colonel (COL) Kenneth E.




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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


Tovo, group commander of the 10th Special Forces Group,

testified:

     Sergeant Eslinger’s got a good reputation as a
     soldier, particularly a combat soldier, in the Group.
     However . . . . [Y]ou just listed four fairly
     significant instances of ill-discipline, and frankly,
     that’s more chances than we allow a guy. . . . I just
     find that . . . his ill-discipline is incompatible
     with continued service, certainly within the 10th
     Group.

CSM Charles M. Sekelsky, the group command sergeant major,

testified, “I think he’s embarrassed the regiment and the United

States Army for his actions.”2   In addition, on cross-examination

defense counsel elicited agreement from the sergeant major that

Appellant was an exceptional medic and an exceptional team

member when deployed in a combat zone.    Defense counsel

specifically asked CSM Sekelsky, “If you could put him in a can

and take him to Iraq and only open him up in Iraq, you’d prefer

to do it that way, wouldn’t you?”     To which he responded, “Yes.”

     With two exceptions, defense counsel did not object to the

testimony of these witnesses.    Following SGM Krider’s testimony

the military judge asked, “Any issues with the sergeant major’s

testimony?”   Defense counsel, citing Rule for Courts-Martial

(R.C.M.) 1001(b)(5), responded with a request that the military

judge instruct the members to disregard the testimony because

the offenses of which Appellant was found guilty formed the

2
  CSM Sekelsky had also been Appellant’s previous battalion
command sergeant major.


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


principal basis for SGM Krider’s opinion.      Following an Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2006), session to discuss the

matter, the military judge instructed the members to disregard

SGM Krider’s testimony.    In addition, prior to CSM Sekelsky’s

testimony the military judge asked trial counsel for an offer of

proof as to what the witness would testify.      Defense counsel

objected to CSM Sekelsky’s expected testimony as cumulative

since the members had just heard from the Group commander, COL

Tovo.    In counsel’s view, the colonel had already testified as

to the consensus of the command.       The military judge overruled

this specific defense objection noting that CSM Sekelsky

“appears to have some closer connection with the accused.”

Immediately after ruling on this objection to the witness’s

testimony, the military judge asked defense counsel

specifically, “Any other objections, defense?”      Defense counsel

responded, “No, sir.”

        At the close of the sentencing case, although the defense

requested a number of specific instructions they did not request

a specific instruction regarding the Government’s rebuttal

evidence.    With respect to the sentencing evidence, the military

judge provided the standard instruction to “consider all matters

in extenuation and mitigation as well as those in aggravation.”

He also instructed the members to consider, among other things,




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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


evidence of Appellant’s good military character, his combat

record, and his record in the service for bravery.

      Before the Court of Criminal Appeals Appellant challenged

the admission of the Government’s rebuttal evidence on the

ground that the witnesses did not have adequate foundations to

provide their opinions as to whether Appellant should be

retained in the armed forces.    Eslinger, 2010 CCA LEXIS 64, at

*2.   The lower court, sitting en banc and without distinguishing

between the various rebuttal witnesses, found “clear and obvious

error in the admission of evidence which both lacked foundation

and raised command influence concerns, without proper limiting

instruction[s].”   Id. at *42.   However, after a detailed review

for prejudice, that court concluded that any errors were

harmless.   Id. at *46-*47.

      Before this Court Appellant renews his argument that the

military judge committed plain error in allowing the testimony

of the rebuttal witnesses.    First, Appellant argues the

witnesses lacked an adequate foundation to form and offer an

opinion on retention.   Second, he argues that the restrictions

on evidence of rehabilitative potential contained in R.C.M.

1001(b)(5) apply to Government rebuttal as well as to the

Government’s sentencing case-in-chief.   Finally, Appellant

challenges the lower court’s conclusion that any errors were

harmless.   For its part, the Government challenges the lower


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


court’s conclusion that the limitations in R.C.M. 1001(b)(5)

apply to otherwise properly admitted rebuttal evidence.

                              DISCUSSION

     A military judge’s decisions to admit or exclude evidence

are reviewed for an abuse of discretion.    United States v.

Ediger, 68 M.J. 243, 248 (C.A.A.F. 2010).    Failure to object to

the admission of evidence at trial forfeits appellate review of

the issue absent plain error.    United States v. Kasper, 58 M.J.

314, 318 (C.A.A.F. 2003) (citation omitted); United States v.

Halford, 50 M.J. 402, 404 (C.A.A.F. 1999); United States v.

Raya, 45 M.J. 251, 253 (C.A.A.F. 1996).

R.C.M. 1001(b)(5) and Rebuttal Evidence

     We begin our analysis with the threshold question as to

whether R.C.M. 1001(b)(5) bars the Government from introducing

testimony of the type and quality in this case in rebuttal to

defense retention evidence.    If so, there is no need to consider

whether there was a proper foundation for doing so.

     Evidence that goes toward the accused’s rehabilitative

potential is permissible at sentencing.    “The trial counsel may

present, by testimony or oral deposition in accordance with

R.C.M. 702(g)(1), evidence in the form of opinions concerning

the accused’s previous performance as a servicemember and

potential for rehabilitation.”    R.C.M. 1001(b)(5)(A).   However,

“A witness may not offer an opinion regarding the


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


appropriateness of a punitive discharge or whether the accused

should be returned to the accused’s unit.”     R.C.M.

1001(b)(5)(D).   In United States v. Ohrt, 28 M.J. 301 (C.M.A.

1989), the Court concluded that this restriction applies to both

government and defense sentencing evidence.     “[A] witness -- be

he for the prosecution or the defense -- should not be allowed

to express an opinion whether an accused should be punitively

discharged.” Id. at 304-05.    “[A]ppropriateness of punishment”

is an issue to be decided by the members and “cannot be usurped

by a witness.” Id. at 305.

      However, in Griggs, we held that “R.C.M. 1001(b)(5)(D) does

not apply to defense mitigation evidence, and specifically does

not preclude evidence that a witness would willingly serve with

the accused again.”   61 M.J. at 409.    This conclusion was based

in part on the fact that “so-called ‘retention evidence’ is

classic matter in mitigation, which is expressly permitted to be

presented by the defense.”    Id.    However, we reached this

conclusion with three important cautionary caveats.

      First, “there can be a thin line between an opinion that an

accused should be returned to duty and the expression of an

opinion regarding the appropriateness of a punitive discharge.”

Id.   Second, concerns raised with respect to this distinction

“can be addressed with a tailored instruction focusing on the

distinction between a punitive discharge, which is for the


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


members to decide, and the willingness of a servicemember to

serve with an accused again.”    Id.   Third, and most importantly

for the purpose of this case, we directly responded to the

Government’s argument in Griggs that if the defense were allowed

to admit such evidence the Government would be without recourse.

We stated:

        Consistent with the historical concerns regarding command
        influence, the Government is free to rebut such assertions.
        As stated in [United States v.] Aurich,[3] “if an accused
        ‘opens the door’ by bringing witnesses before the court who
        testify that they want him or her back in the unit, the
        Government is permitted to prove that that is not a
        consensus view of the command.”

Id. at 410 (footnote added).    We continue to adhere to this

view.    As in other contexts, where a party opens the door,

principles of fairness warrant the opportunity for the opposing

party to respond, provided the response is fair and is

predicated on a proper testimonial foundation.    See United

States v. Blau, 5 C.M.A. 232, 244, 17 C.M.R. 232, 244 (1954)

(otherwise “an accused would occupy the unique position of being

able to ‘parade a series of partisan witnesses before the court’

. . . without the slightest apprehension of contradiction or

refutation”).

        In this case, the defense counsel opened the door to

rebuttal through testimony from its witnesses indicating that

they would gladly serve with Appellant again.    Therefore the

3
    31 M.J. 95, 96-97 (C.M.A. 1990).


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


Government was free to rebut with proper evidence that this was

not the consensus of the command.

     Three concerns warrant emphasis.    First, when the

government’s evidence in rebuttal to defense retention evidence

is testimony of the accused’s commander, it may well “raise the

specter of command influence.”    Griggs, 61 M.J. at 408 (citation

omitted).    However, we hasten to note that evidence that the

defense witnesses’ views are “not a consensus view of the

command” simply means that retaining the accused is not the view

of every member of the command.    See id. at 410 (citation and

quotation marks omitted).   It does not necessarily mean that the

government may parade the commanding officer and the rest of the

accused’s chain of command to have them give a command view on

retention.   That would depend on just how wide the defense

opened the door.

     Second, to be clear, a commander may testify, but it is

essential for the military judge to be on guard for the

possibility, intended or not, that a commander’s testimony could

convey undue command influence to the members.   While not an

absolute requirement, a tailored instruction from the military

judge can ameliorate these risks and clarify the scope of

permissible opinions.   Where the government calls a number of

senior command representatives, trial counsel should assess




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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


which and how many are necessary to rebut the defense contention

that the accused should be retained in the service.

     Third, “‘The Military Rules of Evidence [M.R.E.] are

applicable to sentencing . . . thus providing procedural

safeguards to ensure the reliability of evidence admitted during

sentencing.’”   United States v. Saferite, 59 M.J. 270, 273

(C.A.A.F. 2004) (alteration in original) (quoting United States

v. McDonald, 55 M.J. 173, 176 (C.A.A.F.2001); Manual for Courts–

Martial, United States, Analysis of the Rules for Courts-Martial

app. 21 at A21-69 (2002 ed.)).   Thus, a lay witness must always

have a proper foundation to offer an opinion.    See M.R.E. 701.

     In sum, although rebuttal testimony of the type in this

case may raise some of the same concerns addressed by R.C.M.

1001(b)(5), that is different than concluding that this rule

specifically applies to rebuttal evidence.   We conclude that it

does not.   Rebuttal is governed by R.C.M. 1001(d), which does

not contain the same restrictions as R.C.M. 1001(b)(5).

Foundation for Opinions

     M.R.E. 701(a) requires that lay witness opinions or

inferences be limited to those that are “rationally based on the

perception of the witness.”   In similar fashion, M.R.E. 602

provides that “[a] witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter.”   See also Ohrt,


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


28 M.J. at 306 (discussing a parallel requirement found in

R.C.M. 1001(b)(5)(B) that “the opinion envisioned by R.C.M.

1001(b)(5) can only be expressed by a witness who has a rational

basis for his conclusions, founded upon the accused’s service

performance and character”).   As the Court of Criminal Appeals

stated, “in the absence of such a foundation outlining these

witnesses’ personal knowledge of appellant’s background or

character, their subsequent testimony both lacks probity and

increases the potential for prejudicial misuse of their

opinions.”   Eslinger, 2010 CCA LEXIS 64, at *34 (footnote

omitted).    Appellant argues that the Government’s witnesses did

not have sufficient personal knowledge of the accused to proffer

the opinions offered.   We consider the testimony of each of the

witnesses in issue.

     When asked the basis of his knowledge, MAJ Peltier agreed

with the premise of the question that his opinion stemmed from

what he “learned from Colonel Stoltz and the prosecutors in this

case,” as well as “knowledge of the unit . . . [w]e’re very

small.”   MSG Stensgaard testified that he knew Appellant because

“We did quite a bit of pre-mission training together prior to

the OIF III deployment” and was aware of his two previous

citations for drunk driving and criminal trespass conviction.

     COL Tovo testified that he knew who Appellant was and that

he had a “good reputation as a soldier, particularly a combat


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


soldier.”    When asked the basis of his opinions, he stated

“[Y]ou just listed four fairly significant instances of ill-

discipline, and frankly, that’s more chances than we allow a

guy.”

        SGM Krider stated that his opinion was based on the

convictions for child pornography in this case, his “record of

DUIs” and his criminal trespass conviction.    The military judge

sustained defense counsel’s objection to SGM Krider’s testimony

and instructed the members to disregard it.    Any infirmity with

this testimony was cured by the military judge’s instruction and

there is no indication in the record that the members did not

follow the instruction.    United States v. Taylor, 53 M.J. 195,

198 (C.A.A.F. 2000) (court members are presumed to follow the

military judge’s instructions); United States v. Holt, 33 M.J.

400, 408 (C.M.A. 1991).

        CSM Sekelsky testified that he deployed with Appellant to

Baghdad and “would see him occasionally at FOB 103.”    He stated

that he had occasional conversations with Appellant “[I would]

just say, ‘Hi.    How’re you doing,’ when I would see him. . . .”

Although defense counsel objected to the testimony as

cumulative, when asked if there was any other objection to the

testimony, counsel replied “No, sir.”    Thus any additional




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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


claimed infirmity regarding this testimony was affirmatively

waived and is not subject to plain error review.4

        In the case of MSG Stensgaard the foundational basis for

the testimony was evident based on the structure of Special

Forces units and the role of senior enlisted personnel within

these commands.    MSG Stensgaard was Appellant’s team sergeant

for two years, trained with Appellant and deployed with him to

Iraq.    In short, this senior enlisted Special Forces soldier had

a substantial personal foundation on which to render his

opinions.

        The testimony of COL Tovo and MAJ Peltier present closer

questions.

        According to MAJ Peltier’s testimony, his opinion of

Appellant was based on what he learned from others as well as

knowledge of the unit.    Although not presenting the most

compelling case, absent objection, it was not unreasonable for

the military judge to infer that the executive officer of a

Special Forces battalion would have direct and personal

knowledge of a senior enlisted member in the command.


4
  See United States v. Campos, 67 M.J. 330, 333 (C.A.A.F. 2008).
However, we note that CSM Sekelsky’s opinion was based on his
testimony that he was the command sergeant major of the 3d
Battalion at the time of Appellant’s Operation Iraqi Freedom III
deployment to Iraq. In this capacity, he would “see him
occasionally” and of course was privy to the sort of information
about senior noncommissioned officers that a command sergeant
major is responsible for knowing.


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


     COL Tovo’s testimony was based on his standing as 10th

Special Forces Group commander.    According to COL Tovo the

authorized medic strength for the Group was eighteen.    His Group

was below strength.   In response to leading questions, COL Tovo

indicated that his knowledge of Appellant was based on

Appellant’s reputation in the command.   He did not state that he

had direct personal knowledge of Appellant.   In our view, COL

Tovo’s foundation in the record for expressing a personal

opinion about Appellant was not as strong as it could have been.

However, in the context of plain error review and in the context

of the tightly knit and relatively small units that comprise the

Army Special Forces community, in this case, the 10th Special

Forces Group, we are not prepared to conclude, absent a record

indicating otherwise, that the military judge abused his

discretion in admitting the Group commander’s testimony.

     We agree with Appellant and the Court of Criminal Appeals

that lay opinions must be derived from direct observation and

judgment, but the military judge did not commit plain error by

admitting the testimony of COL Tovo, MAJ Peltier, or MSG

Stensgaard.   Restated, it is not evident that there was a clear

and obvious basis to exclude their testimony for lack of

foundation.




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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


       In any event, we need not ultimately determine if any of

the admitted rebuttal testimony was obvious error, for even if

so, any error was harmless.

Prejudice Analysis

       Under the plain error test, after finding plain or obvious

error we test for prejudice.   That is, “We test the erroneous

admission or exclusion of evidence during the sentencing portion

of a court-martial to determine if the error substantially

influenced the adjudged sentence.”    Griggs, 61 M.J. at 410.

       While we do not find plain or obvious error in this case,

for the sake of appellate thoroughness we consider the third

prong of the plain error test, recognizing that opinions may

reasonably vary as to whether an error was clear or obvious in

the first instance.   Where command influence concerns are

raised, the application of prejudice analysis will also enhance

confidence in the fairness of the system.

       Prejudice analysis is also useful because, as we recognized

in Griggs, the line between an opinion on whether an accused

should be returned to service or punitively discharged is a thin

one.   61 M.J. at 409.   Indeed the line can appear obscure if

testimony that the accused is unworthy of continued service is

viewed as a euphemism for a punitive discharge, as it no doubt

often is.   Intuitively, there is a certain fiction to the

premise that the members will readily distinguish between an


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


opinion on continued service and an opinion that the accused

should be punitively discharged.      But it is a distinction that

we are confident that properly instructed members are capable of

making.    Here, the Government came closest to the line by asking

each witness, “Do you want him in the Army?”     But in the context

of the defense witnesses stating their desire to have Appellant

stay in the Army, this was not obvious error on rebuttal.

      As we weigh the factors in determining whether, if there

was error, it was prejudicial, we weigh factors on both sides.

On the one hand, Appellant’s combat service offered significant

mitigation for members to consider on sentencing.     He was a

senior enlisted soldier with combat service as a medic.     He had

three combat tours and was awarded the Bronze Star with combat

V.   Finally, if the testimony in question was error, it came

from senior officers in Appellant’s chain of command, which in

theory makes their testimony more likely to influence the

members.

      On the other hand, we find six factors that cut against a

conclusion that Appellant was prejudiced.     First, Appellant’s

possession of child pornography was extensive.     As noted by the

lower court, Appellant collected it over time and in multiple

locations.   Eslinger, 2010 CCA LEXIS 64, at *3.     It included

over 1,700 images, including infants being sodomized and

vaginally penetrated.   Second, Appellant did not make the case


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


that his conduct was in some manner the result of his combat

experience.   Third, Appellant faced a maximum punishment of

thirty years of confinement, forfeiture of all pay and

allowances, reduction to the lowest enlisted grade E-1, and a

dishonorable discharge; he received three years of confinement,

forfeiture of all pay and allowances, reduction to the lowest

enlisted grade E-1, and a bad-conduct discharge.   Fourth,

Appellant had an extensive record of prior misconduct.   This

record included two General Officer Memoranda of Reprimand

(GOMOR) for driving under the influence in 1999 and driving

while intoxicated in 2004, and a stipulation of fact reflecting

a civilian conviction in 2004 for third-degree criminal trespass.

In addition, the military judge gave a standard instruction to

the members to guide them in their decision on whether to award

a punitive discharge and, if so, what kind.   Finally, and

relevant to all the other factors, Appellant was sentenced by a

panel of six experienced members, including a colonel, two

lieutenant colonels, a major, and two sergeants major.

     Considering these factors in the context of the test set

out in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999),

while we do not assume error, we agree with the lower court’s

assessment:   the possibility Appellant would have received less

confinement or would have avoided a punitive discharge, absent

the rebuttal testimony, was remote.   We are confident that the


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United States v. Eslinger, Nos. 10-0537/AR and 11-5002/AR


testimony of COL Tovo, MAJ Peltier, or MSG Stensgaard did not

substantially influence the members’ judgment on the sentence.

                           CONCLUSION

     In view of the above, the decision of the United States

Army Court of Criminal Appeals on the findings and the sentence

is affirmed.




                               21
United States v. Eslinger, No. 10-0537/AR


     ERDMANN, Judge, with whom EFFRON, Chief Judge, joins

(dissenting):

     This case involves four issues:   (1) whether the

Government established sufficient foundation for the

testimony of the rebuttal witnesses it called during the

sentencing portion of the court-martial; (2) whether that

testimony was proper under United States v. Ohrt, 28 M.J.

301 (C.M.A. 1989); (3) whether the rebuttal testimony from

five senior officers and senior noncommissioned officers

from the command structure raised the specter of unlawful

command influence; and (4) whether the admission of this

testimony was prejudicial.   As this court noted in United

States v. Griggs, 61 M.J. 402, 409 (C.A.A.F. 2005):

     The chief concerns underlying these cases are the
     need to have “a rational basis for” an opinion
     concerning rehabilitation and the importance of
     avoiding command influence in the sentencing
     process. These concerns coincide with the UCMJ’s
     overarching concern regarding undue command
     influence.

(Citations and quotation marks omitted.)

     I respectfully dissent from the majority’s conclusion

that even if the admission of the rebuttal testimony

constituted plain or obvious error, there was no prejudice.

I agree with the United States Army Court of Criminal

Appeals’ determination that the Government’s rebuttal

testimony lacked proper foundation and its admission
United States v. Eslinger, No. 10-0537/AR


constituted plain and obvious error.    However, I do not

believe that the defense retention testimony, whether

proper or not, opened the door to allow the Government to

introduce otherwise inadmissible “euphemism” testimony on

rebuttal.   In addition, the military judge failed to give

cautionary instructions addressing the proper purposes for

which the rebuttal testimony was admitted and the potential

for unlawful command influence.   Under these circumstances,

I cannot be confident that this improper testimony did not

substantially influence the sentence.   I would set aside

the sentence and remand the case for a sentence rehearing.

Relationship of R.C.M. 1001(b)(5) to R.C.M. 1001(d)

     I agree that there is no reference in Rule for Courts-

Martial (R.C.M.) 1001 which would specifically make R.C.M.

1001(b)(5) applicable to R.C.M. 1001(d).    However, the

requirement for a witness to possess a rational basis for

an opinion concerning the rehabilitative potential of an

accused found in R.C.M. 1001(b)(5), is also embodied in

both Military Rule of Evidence (M.R.E.) 602 and M.R.E. 701,

and testimony admitted pursuant to R.C.M. 1001(d) must also

satisfy those provisions.1


1
  Rather than holding that R.C.M. 1001(b)(5) literally
applied to R.C.M. 1001(d), the Court of Criminal Appeals
appears to have looked to R.C.M. 1001(b) to inform its
analysis as to whether the Government rebuttal witnesses


                              2
United States v. Eslinger, No. 10-0537/AR


     This requirement has been long recognized by this

court:

     Mil.R.Evid. 701 governs admissibility of lay-
     opinion testimony, and it applies to evaluative
     statements offered under RCM 1001(b)(5). United
     States v. Susee, 25 MJ at 540. Only “opinions .
     . . which are . . . rationally based on the
     perception of the witness and . . . helpful to a
     clear understanding of the testimony of the
     witness o[r] the determination of a fact in
     issue” are admissible. Mil.R.Evid. 701. Thus, a
     foundation must be laid to demonstrate that the
     witness does possess sufficient information and
     knowledge about the accused -- his character, his
     performance of duty as a servicemember, his moral
     fiber, and his determination to be rehabilitated
     -- to give a “rationally based” opinion. . . .

     In United States v. Horner, . . . we tried to
     make it clear that “rehabilitative potential”
     refers to the accused. It is based upon an
     “assessment of . . . [the accused’s] character
     and potential.” 22 MJ at 296. Thus, a witness
     whose opinion is based upon factors other than an
     assessment of the accused’s service performance,
     character, and potential does not possess a
     rational basis for expressing an opinion.

Ohrt, 28 M.J. at 303-04.

Foundational Basis for Rebuttal Testimony

     The Government called five members of the 10th Special

Forces Group command structure to rebut the defense

sentencing witnesses:


possessed the required rational basis for their expressed
opinions, and then determined that they did not. United
States v. Eslinger, No. ACM 20070335, slip op. at 17 (A.
Ct. Crim. App. May 21, 2010). As the same foundational
basis is required in M.R.E. 602 and M.R.E. 701, it was not
error for the lower court to make that analogy.


                             3
United States v. Eslinger, No. 10-0537/AR


     Major Peltier

     Major (Maj.) Peltier was the Acting Battalion

Commander of the 3rd Battalion, 10th Special Forces Group.

He testified that it was his opinion, based on Eslinger’s

pattern of misconduct, that he should not deploy with the

unit or even be in the Army.   On cross examination Maj.

Peltier agreed that his opinion was based on what the

Battalion Commander and prosecutors had told him.    He did

not testify as to any personal knowledge of Eslinger and

acknowledged that he had never been on the same team with

him and had never deployed with him.   He testified that he

had not been aware of Eslinger’s two General Officer

Memorandums of Reprimand (GOMORs) for driving under the

influence of alcohol or his civilian criminal conviction

until the day before trial.

     Addressing the foundation established by the

Government for Maj. Peltier’s testimony, the majority held

that “it was not unreasonable for the military judge to

infer that the executive officer of a Special Forces

Battalion would have direct and personal knowledge of a

senior enlisted member in the command.”   I do not believe

that such an inference meets the foundational standard of a

“rationally based” opinion that is required for the

admission of this evidence.    See United States v. Kirk, 31


                               4
United States v. Eslinger, No. 10-0537/AR


M.J. 84 (C.M.A. 1990).2    Maj. Peltier’s testimony was not

rationally based and therefore lacked proper foundation.

       Sergeant Major Krider

       Sergeant Major (SGM) Krider was the Acting Command

Sergeant Major for the 3rd Battalion, 10th Special Forces

Group.    He testified that he vaguely knew Eslinger, “in a

distant manner.”    He testified that Eslinger should not

continue to serve in the Special Forces or the Army and

primarily based that opinion on Eslinger’s conviction for

possession of child pornography.    The defense objected to

the testimony of SGM Krider because his opinion was

primarily based on Eslinger’s conviction for possession of

child pornography and asked that the military judge

instruct the members to disregard the testimony.    In




2
    In Kirk, 31 M.J. at 88, the court noted:

       In United States v. Horner, 22 MJ 294 (CMA 1986)
       this Court held that RCM 1001(b)(5), Manual for
       Courts-Martial, United States, 1984, requires that
       an admissible opinion on rehabilitative potential
       be based on an individual assessment of a
       servicemember’s character and potential. In
       United States v. Ohrt, 28 MJ 301, 304 (CMA 1989),
       this Court said that it must be shown that a
       commander expressing such an opinion “does possess
       sufficient information and knowledge about the
       accused -- his character, his performance of duty
       as a servicemember, his moral fiber, and his
       determination to be rehabilitated -- to give a
       “rationally based” opinion.


                               5
United States v. Eslinger, No. 10-0537/AR


response, the military judge properly instructed the

members to disregard the testimony of SGM Krider.

     Master Sergeant Stensgaard

     Master Sergeant (MSG) Stensgaard was a team sergeant

in the tactical support detachment in the Group Support

Battalion of the 10th Special Forces Group.    MSG Stensgaard

testified that he had been Eslinger’s team sergeant for two

years and had trained and deployed with him.   The majority

held that sufficient foundation was established for MSG

Stensgaard’s testimony and I agree.

     Colonel Tovo

     Colonel (Col.) Tovo was the Group Commander of the

10th Special Forces Group.   He testified that he was aware

that Eslinger had been convicted of possession of child

pornography, had received two GOMORs for alcohol-related

driving incidents, and had been convicted in civilian court

of criminal trespass.   As noted by the majority, Col. Tovo

based his opinions on Eslinger’s reputation in the command

and there is nothing in the record which indicates that he

had any personal knowledge of Eslinger.   He testified that

he did not want Eslinger back in his unit, did not want to

deploy with him, and did not want him in the Army.   The

majority recognized that the foundation for Col. Tovo’s

testimony was “not as strong as it could have been” but in


                              6
United States v. Eslinger, No. 10-0537/AR


the context of plain error held that the military judge did

not abuse his discretion in admitting the testimony.

     As noted in United States v. Horner, this type of

testimony is not helpful as “[t]he witnesses’ function in

this area is to impart his/her special insight into the

accused’s personal circumstances.”     22 M.J. 294, 296

(C.M.A. 1986).   There is nothing in the record that

establishes a rational basis for Col. Tovo’s insight into

Eslinger’s personal circumstances or his potential for

rehabilitation and therefore his testimony lacked a proper

foundation.

     Command Sergeant Major Sekelsky

     Command Sergeant Major (CSM) Sekelsky was the 10th

Special Forces Group Command Sergeant Major.    The defense

objected to CSM Sekelsky’s testimony as being cumulative

with Col. Tovo’s testimony, but the military judge

overruled the objection when he determined that CSM

Sekelsky had more personal knowledge than Col. Tovo.      The

military judge then asked if the defense had any further

objections to CSM Sekelsky’s testimony and defense counsel

responded “No Sir.”   I agree with the majority that this

response affirmatively waived the issue of proper

foundation for CSM Sekelsky’s testimony.




                              7
United States v. Eslinger, No. 10-0537/AR


     The rebuttal testimony of both Col. Tovo and Maj.

Peltier lacked proper foundation.   Given the numerous

decisions of military courts on this issue, the military

judge’s admission of that testimony constituted plain and

obvious error.

Inadmissible “Euphemism” Testimony on Rebuttal

     The majority recognized the “thin line between an

opinion that an accused should be returned to duty” which

is permissible testimony, and the “expression of an opinion

regarding the appropriateness of a punitive discharge”

which is impermissible testimony.   In Griggs, 61 M.J. at

409, we explained:

     Obviously, an accused cannot return to serve in
     his unit if he receives a punitive discharge. But
     an explicit declaration that an accused should not
     receive a punitive discharge or that any such
     discharge should be of a certain severity is
     disallowed for the defense not because of R.C.M.
     1001(b)(5)(D), but because such evidence invades
     the province of the members to decide alone on
     punishment. Ohrt, 28 M.J. at 305 (“The question
     of appropriateness of punishment is one which must
     be decided by the court-martial; it cannot be
     usurped by a witness.”).

(Citation omitted.)

     This prohibition is not limited to express

recommendations of a particular sentence, but also includes

euphemisms:

     a commander as a sentencing witness cannot
     recommend a particular sentence to a court-martial


                             8
United States v. Eslinger, No. 10-0537/AR


     or employ euphemisms in his testimony which
     ineluctably lead to the same result. Here, the
     commander testified, “I think it would be, you
     know, a waste of Air Force resources to retain
     her.” This language rationally conveys the
     commander’s opinion that appellant should be
     separated, which is an impermissible comment under
     United States v. Ohrt.

Kirk, 31 M.J. at 89 (citations omitted).

     This conclusion is based on the obvious fact that

courts-martial have no authority to sentence an accused to

any discharge other than a punitive discharge.   When a

senior officer or senior noncommissioned officer opines

that an accused should not be in the Army (or other

service), the message to the members is that the accused

should receive a punitive discharge.   Every Government

rebuttal witness in this case testified that Eslinger

should either not remain in the service or in the Army.

This testimony infringed upon the province of the members

and was improper.3


3
  I do not agree with the Court of Criminal Appeals that
because the defense presented retention evidence in the
defense sentencing case that may have infringed upon the
province of the members, that opened the door to allow the
Government to introduce its own inadmissible testimony on
rebuttal. Certainly the Government was entitled to present
testimony as to whether others in the command wanted to
continue to serve with Eslinger. However, even if we were
to assume that the defense sentencing evidence infringed
upon the province of the members, the Government should not
be permitted to subsequently introduce inadmissible
evidence to rebut the evidence presented by the defense, no
matter how far the door has been opened. See also


                             9
United States v. Eslinger, No. 10-0537/AR


     As we recognized in Griggs, even when permissible

testimony in this area is admitted, the military judge

should provide “a tailored instruction focusing on the

distinction between a punitive discharge, which is for the

members to decide, and the willingness of a servicemember

to serve with an accused again.”   61 M.J. at 409.   No

tailored instruction was provided in this case and the

members were left with no guidance as to how to properly

consider the rebuttal testimony.

The Specter of Command Influence

     As recognized by the majority, when the Government

presents rebuttal testimony to defense retention testimony,

the military judge must be vigilant for the “specter of

command influence.”   This is particularly true when the

rebuttal witnesses include the Group Commander, the Acting

Battalion Commander, the Group Command Sergeant Major, and

the Acting Battalion Command Sergeant Major.   When senior

officers and noncommissioned officers testify that an


Eslinger, No. ACM 20070335, slip op. at 17. This
particular theory of admissibility is sometimes called the
“doctrine of curative admissibility” and notwithstanding
this court’s passing references in United States v. Pompey,
33 M.J. 266, 270 n.2 (C.M.A. 1991), United States v. Banks,
36 M.J. 150, 164 n.15 (C.M.A. 1992), and United States v.
Haimson, 17 C.M.A. 208, 224 n.2, 17 C.M.R. 208, 224 n.2
(1954), this court has not adopted the doctrine, nor
should it.




                             10
United States v. Eslinger, No. 10-0537/AR


accused should not be in the Army, not only does that

testimony improperly invade the province of the panel, the

specter of command influence is certainly present.

     We have often noted that:

     Congress and this court are concerned not only
     with eliminating actual unlawful command
     influence, but also with “eliminating even the
     appearance of unlawful command influence at
     courts-martial.” United States v. Rosser, 6 M.J.
     267, 271 (C.M.A. 1979).

United States v. Lewis, 63 M.J. 405, 415 (C.A.A.F. 2006).

     The majority correctly recognizes the import of a

properly tailored instruction under these circumstances,

but appears unconcerned that no tailored instruction was

given in this case.   The majority finds that the “standard

instruction to the members to guide them in their decision

on whether to award a punitive discharge” was sufficient.

Eslinger, __ M.J. at __ (20).     That instruction, however,

did not address the issue of command influence.    Where, as

here, the Government rebuttal witnesses included the senior

leadership of the 10th Special Forces Group and the

battalion to which Eslinger was assigned, properly tailored

instructions advising the members of the limited use for

which the testimony was admitted and which also addressed

the concerns of command influence, were essential.    See

Griggs, 61 M.J. at 409.



                             11
United States v. Eslinger, No. 10-0537/AR


     Under these circumstances, the lack of foundation for

the testimony of the two senior rebuttal witnesses, the

admission of impermissible euphemism testimony, and the

lack of any tailored instructions constituted plain and

obvious error.

Prejudice

     “We test the erroneous admission or exclusion of

evidence during the sentencing portion of a court-martial

to determine if the error substantially influenced the

adjudged sentence.”   Id. at 410.   The majority opinion

relies on six factors in concluding that any error in

regard to the admission of the rebuttal evidence was

harmless.   The majority opinion initially notes that

“Appellant’s possession of child pornography was extensive.

. . . Appellant collected it over time and in multiple

locations [and i]t included 1,700 images, including infants

being sodomized and vaginally penetrated.”   Eslinger, __

M.J. at __ (19) (citation omitted).   Notwithstanding the

significance of these facts, the court-martial panel

sentenced Eslinger to only a fraction of the maximum

authorized confinement -- three out of a potential thirty

years.   Although I do not know the degree to which this

sentence reflected the panel’s consideration of Eslinger’s

years of service and the nature of that service, the


                             12
United States v. Eslinger, No. 10-0537/AR


relative brief period of confinement demonstrates that the

panel did not view the offenses as significantly

diminishing the value of the evidence offered in

extenuation and mitigation.

     As to the second factor, the majority observes that

“Appellant did not make the case that his conduct was in

some manner the result of his combat experience.”    Id. at

19-20.   It is not apparent why the members would have

expected Eslinger to have made this argument, nor is it

apparent why the absence of this argument has any bearing

on the question of prejudice.

     Neither is it apparent how the absence of prejudice is

demonstrated by the third factor relied on by the majority

-- that “Appellant faced a maximum punishment of thirty

years of confinement [and] a dishonorable discharge [and]

he received three years of confinement [and] a bad-conduct

discharge.”   Id. at 20.   As noted in response to the first

factor, the vast disparity between the maximum punishment

and the actual punishment reflects the willingness of the

members to give substantial consideration to the specific

facts and circumstances of the offenses and the offender.

At the same time, the punishment of three years of

confinement and a bad-conduct discharge is sufficiently

consequential to demonstrate the potential prejudice from


                              13
United States v. Eslinger, No. 10-0537/AR


the improper admission of sentencing evidence and lack of

proper instructions as to how the panel should consider the

rebuttal testimony and the potential for unlawful command

influence.

     As to the fourth factor, the majority states that

Eslinger “had an extensive record of prior misconduct.”

Id. at 20.    In fact, the record reflects three incidents in

the course of Eslinger’s eighteen-year military career:

two GOMORs for driving under the influence of alcohol; and

a state court conviction for third degree criminal

trespass, to which Eslinger pleaded no contest in 2004.

None of these incidents, either individually or

cumulatively, resulted in any action for an administrative

separation.   Eslinger continued to serve in the Army,

including completion of his third combat tour in Iraq.

While it was certainly appropriate for the court-martial

panel to consider these incidents during sentencing, they

did not constitute “an extensive record of prior

misconduct” and did not make it inevitable that he would

receive a punitive discharge at trial.

     The fifth factor relied upon by the majority is that

“the military judge gave a standard instruction to the

members to guide them in their decision on whether to award

a punitive discharge and, if so, what kind.”   Id.   As noted


                              14
United States v. Eslinger, No. 10-0537/AR


earlier, this instruction did not inform the members as to

how they should consider the rebuttal testimony when

evaluating the appropriateness of a punitive discharge, nor

did it address the issue of potential command influence.

     Finally, the sixth factor relied upon by the majority

notes that “Appellant was sentenced by a panel of six

experienced members, including a colonel, two lieutenant

colonels, a major, and two sergeants major.”   Id.   The

record, however, does not indicate anything unusual with

respect to this panel in terms of the application of the

panel selection criteria under Article 25, UCMJ, 10 U.S.C.

§ 825 (requiring appointment of members “best qualified for

the duty by reason of age, education, training, experience,

length of service, and judicial temperament”), amount of

prior court-martial experience, or likelihood to have more

or less concern for the opinions of the command leadership.

Summary

     The rebuttal testimony of Col. Tovo and Maj. Peltier

lacked a proper foundation.   The testimony of all the

Government’s rebuttal witnesses included impermissible

“euphemism” testimony that invaded the province of the

members.   These errors were compounded by the failure of

the military judge to give essential cautionary

instructions addressing the proper purposes of the


                              15
United States v. Eslinger, No. 10-0537/AR


testimony and the potential for unlawful command influence.

Under the circumstances, I cannot be confident that the

improper testimony did not substantially influence the

sentence.   The sentence should be set aside and the case

remanded for a new sentence hearing.




                             16
