UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                            MULLIGAN, FEBBO, and WOLFE
                               Appellate Military Judges

                          UNITED STATES, Appellee
                                       v.
              Chief Warrant Officer Four ELMER F. HOFFMAN, III
                         United States Army, Appellant

                                    ARMY 20140172

         Headquarters, U.S. Army Maneuver Support Center of Excellence
              Jeffery R. Nance, Military Judge (arraignment and trial)
                     David L. Conn, Military Judge (post-trial)
     Lieutenant Colonel Laura J. Calese, Acting Staff Judge Advocate (pretrial)
      Colonel Charles T. Kirchmaier, Staff Judge Advocate (recommendation)
    Lieutenant Colonel Jay L. Thoman, Acting Staff Judge Advocate (addendum)


For Appellant: Mark C. Prugh, Esquire (argued); Captain Payum Doroodian, JA;
Mark C. Prugh, Esquire (on brief); Captain Patrick J. Scudieri, JA 1; Mark C. Prugh,
Esquire (on brief in response to specified issues, reply brief, and supplemental
brief).

For Appellee: Captain Cassandra M. Resposo, JA (argued); Colonel Mark H.
Sydenham, JA; Lieutenant Colonel A.G. Courie III, JA; Major Cormac M. Smith,
JA; Captain Cassandra M. Resposo, JA (on brief, brief in response to specified
issues, and supplemental brief).


                                     27 June 2017
                              ---------------------------------
                               OPINION OF THE COURT
                              ---------------------------------

WOLFE, Judge:

       Chief Warrant Officer Four (CW4) Elmer Hoffman, III, appeals his
convictions of several sexual offenses involving four girls, three of whom were his
children. A panel sitting as a general court-martial convicted appellant of three

1
 Counsel signed only in accordance with this court’s Internal Rules of Practice and
Procedure, Rule 6.2.
HOFFMAN—ARMY 20140172

specifications of rape of a child, one specification of abusive sexual contact, and
three specifications of indecent acts with a child in violation of Articles 120 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920, 934 (1994 & Supp. V
2000; 2000 & Supp. III 2004; 2006; 2006 & Supp. III 2010) [hereinafter UCMJ].
The convening authority approved the adjudged sentence of dismissal from the Army
and confinement for life (with the possibility of parole).

          Appellant assigns numerous errors on appeal. We address several substantial
issues.

       First, we address when matters pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) are due at our court. We conclude our rules require they be filed
at the same time as appellant’s brief.

       Second, we address appellant’s claim the military judge was biased in his
conduct of the trial. We adopt the findings of the military judge who conducted a
post-trial Article 39(a), UCMJ, session to consider appellant’s claims and we find
appellant is not entitled to any relief.

       Third, we address the issue of waiver and forfeiture as it relates to United
States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). Specifically, what happens when the
accused repeatedly fails to object and affirmatively states that he has “no objection”
to a propensity instruction involving charged conduct. We find, based on the facts
of this case and the recent decision by our superior court, appellant waived any error
resulting from the improper instruction. United States v. Swift, 76 M.J. 210, 2017
CAAF LEXIS 299 at *20 (C.A.A.F. 2017) (when the defense states they have “no
objection,” then “as a general proposition of law,” this “constitutes an affirmative
waiver of the right or admission at issue”).

       Fourth, we address an issue specified by this court of whether an accused’s
absence from trial is admissible at trial. We hold, as a general rule, such evidence is
admissible at trial. However, when evidence of an accused’s flight is admitted for
the first time during sentencing, it must meet the more narrow requirements of Rule
for Courts-Martial [hereinafter R.C.M.] 1001(b). We also hold that the military
judge’s instructions to the panel did not constitute plain error. See UCMJ art. 59(a).

       Finally, we address the impropriety of the trial counsel’s sentencing argument.
R.C.M. 1001(g) states failure to object to an improper argument “waives” any claim
of error. Applying the Court of Appeals for the Armed Forces (CAAF)’s recent
decision in United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017), we find any error
was extinguished.




                                            2
HOFFMAN—ARMY 20140172

       Appellant personally submitted 106 errors in his Grostefon matters, but we
only discuss in-depth some of appellant’s assignments of error. 2 Ultimately, we
affirm the findings and the sentence.

                              LAW AND DISCUSSION

                         A. Timeliness of Grostefon Matters

       The appellate processing of this case fell far short of the ideal. Numerous
extensions, late filings, and incomplete filings have resulted in an untimely review.
Given the severity of the offenses and sentence, as well as the non-frivolous nature
of the errors ultimately brought to the court’s attention, we liberally granted
appellant’s various motions for extensions and to file out of time, and considered
untimely submissions. We do not suggest that we erred in doing so. However, it
appears part of the problem in this case stemmed from some arguable ambiguity in
this court’s Internal Rules of Practice and Procedure on when Grostefon matters are
due to this court. Accordingly, we clarify our rules for future cases.

       This case was received by this court on 22 April 2015. On 11 February 2016,
we granted appellant his sixth extension to file his brief. Appellant’s motion stated
this would be the final request for an extension and requested an extension until 17
April 2016. Appellant’s brief was filed two days late, on 19 April 2016, without a
motion to file out of time.

      Appellant’s brief stated in a footnote that “[p]ursuant to Grostefon, appellant
reserves the right [to] personally assert matters at a later date.” Appellant cited no
authority for his “right” to submit Grostefon matters at a later date. On 18 October
2016, appellant filed a motion to extend the time to file Grostefon matters until 18
November 2016. The motion stated–without explanation or citation–that Grostefon
matters were due on 18 October 2016. We nonetheless granted the motion. On 14
November 2016, the government filed their response to appellant’s brief.

       On 16 November 2016, appellant requested yet another extension in which to
file Grostefon matters. We initially denied the motion. On 23 January 2017, we
received appellant’s Grostefon matters. We also received a request to file a reply

2
 Appellant was a retiree when he was ordered to active duty to face the instant
charges. In his first assignment of error, appellant alleges the recall was defective
and the court-martial lacked personal jurisdiction to try him on these offenses.
Appellant’s allegations mirror those we addressed in United States v. Hennis, 75
M.J. 796, 803-10 (Army Ct. Crim. App. 2016). For the reasons stated in that
opinion, we find the court-martial had jurisdiction over appellant.


                                           3
HOFFMAN—ARMY 20140172

brief (which had been due on 21 November 2016) out of time. We granted the
motion to file a late reply brief, and, upon additional filings by appellant explaining
the cause for the delay in submitting Grostefon matters, we also agreed to consider
appellant’s late Grostefon matters. Appellant submitted 106 Grostefon issues
nearing almost 200 pages.

      On 16 February 2017, appellant filed a motion requesting to assign two
supplemental errors out of time. We granted the motion. 3

       The issue we clarify today is when Grostefon matters are due to this court.
Appellant’s filings clearly indicate some confusion on the issue. Our Rules of
Practice and Procedure [hereinafter A.C.C.A. R.] state that Grostefon issues “shall
be brought to the Court’s attention by footnote or in an Appendix to the Brief on
Behalf of Appellant.” A.C.C.A. R. 15.3(b). We read the requirement that the
matters be “brought to the Court’s attention” in the brief as a requirement that the
matters be filed with the brief. That is, Grostefon matters are due at the same time
as appellant’s brief, and an extension to file the appellant’s brief inherently provides
for additional time to file Grostefon matters.

       Here, the Grostefon matters were submitted after the government filed their
brief. Indeed, the Grostefon matters were submitted well after the eighteen-month
window we are generally accorded to complete appellate review. United States v.
Moreno, 63 M.J. 129, 142 (C.A.A.F. 2006). Our rules provide government counsel
“must examine all Grostefon issues and may either address each issue or enter a
general opposition.” A.C.C.A. R. 15.3(c). Concerning in this case is that some of
appellant’s Grostefon matters are quite substantive and required extensive
consideration by the court. While a late filing may be of little consequence when
Grostefon matters are easily disposed of, late filings are especially problematic
when the issues may have merit and when the court would benefit from a
government response.

      Put differently, we must provide for an appellate process in which meritorious
Grostefon matters have the opportunity to be tested in an adversarial appellate
process with sufficient time for the court to give them due consideration. Since we
cannot presume ex ante the merits of any Grostefon submission, all Grostefon
matters must, in the absence of unusual circumstances, be submitted in a timely

3
 Consideration of the case was also delayed when, on 9 December 2016, we
specified two issues for briefing and when, on 31 January 2017, we directed oral
argument on four issues. Oral argument was held on 22 March 2017. On 15 March
2017, appellant filed a motion requesting appellate discovery. As we denied the
motion for appellate discovery, it did not delay our consideration of the case.


                                           4
HOFFMAN—ARMY 20140172

fashion. Accordingly, under our rules, absent a request for untimely filing
demonstrating good cause, any Grostefon matters an appellant would like this court
to consider are due on the same date as appellant’s brief.

                         B. Impartiality of the Military Judge

       Appellant alleges the military judge was biased against him in that he
“unconstitutionally deprived [appellant] of a fair trial.” In our review of the record,
we see a trial where the civilian defense counsel often tested the boundaries imposed
by the military judge, and where the military judge responded by placing greater and
greater limits on the civilian defense counsel. However, the factual basis of
appellant’s allegations defy easy summarization. Even were we to list the multitude
of complaints, it would fail to place them within the context of the trial as a whole.

      In his briefing on the assigned error, appellant points towards two issues that
are apparently of greatest concern.

       First, appellant alleges the military judge’s “demeanor and manner were so
poor in this case, in fact, that they drove a combat veteran [appellant] from justice.”
As we discuss in more depth below, CW4 Hoffman left the court-martial without
authority after government counsel rested their findings case. At oral argument,
appellant’s counsel argued he had anticipated establishing several facts through the
testimony of his client. (In a separate trial–not part of this record of trial–CW4
Hoffman pleaded guilty to being absent without leave. United States v. Hoffman,
ARMY 20150691). We are unconvinced any improper action by the military judge
can be labeled as causing CW4 Hoffman to intentionally absent himself from his
court-martial.

       Second, appellant argues the military judge became “verbally abusive” during
a specific Article 39(a), UCMJ, session. While it is often hard to discern tone when
reading a cold transcript, the record provides some support for appellant’s claims.
Indeed, the military judge at trial recognized his loss of bearing and apologized
shortly thereafter.

      Critical to our resolution of this issue, however, is that after the conclusion of
appellant’s trial, a post-trial Article 39(a), UCMJ, session was directed to consider
appellant’s concerns. The hearing was presided over by a different military judge,
from a different judicial circuit. At the hearing, appellant was provided the
opportunity to call witnesses and present evidence. Appellant, who had since been
apprehended, was present and testified.

      Essentially, we are presented on appeal with the functional equivalent of a
hearing pursuant to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1969),
which investigated appellant’s complaints of bias and his request for a mistrial. In a
                                           5
HOFFMAN—ARMY 20140172

twenty-four-page ruling, Judge Conn made detailed findings of fact. Judge Conn’s
conclusions are not clearly erroneous. “To be clearly erroneous, a decision must
strike the court as more than just maybe or probably wrong, it must strike the court
as wrong with the force of a five-week-old, unrefrigerated dead fish.” Papio Keno
Club, Inc. v. City of Papillion (In re Papio Keno Club, Inc.), 262 F.3d 725, 726 (8th
Cir. 2001). Judge Conn concluded his ruling by addressing the trial as a whole and
considering the specific Article 39(a), UCMJ, session discussed above:

             It is clear from reading the transcript of the trial there had
             been multiple instances where the conduct of both [the
             CDC] and the Trial Counsel challenged the orderliness and
             efficiency of the proceedings and tried the patience of the
             trial judge. It is also clear the judge was angry and
             frustrated by what he perceived as [the CDC’s] attempt to
             violate his earlier order . . . . However, in reviewing the
             transcript of both Mrs. [MS’s] testimony and the Article
             39(a) which followed, as well as listening to the audio
             recording of those sessions, it is abundantly clear that the
             military judge did not breach the standards of propriety or
             act with disqualifying intemperance toward [the CDC].

             First, he remonstrated [the CDC] outside the presence of
             the members (unlike the trial counsel). Second, to the
             extent he was intemperate toward [the CDC], he almost
             immediately and very sincerely apologized for any
             offense. Third, examining the record as a whole,
             including numerous other exchanges with [the CDC] and
             the entire record of the military judge’s rulings on
             evidentiary matters, motions and objections, he was even-
             handed, well-reasoned and fair.

             [. . .]

             The trial judge’s rulings and his conduct was a thoroughly
             understandable and legitimate reaction to [the CDC’s]
             professional conduct as an advocate, which would, in my
             estimation from review of the entire record and the motion
             at hand, test the temperance of the most phlegmatic jurist.

      We do not find Judge Conn’s findings to be clearly erroneous. While we do
not necessarily agree with every decision the trial judge made–as judges are




                                           6
HOFFMAN—ARMY 20140172

provided discretion, rare would be the case where we would–we do not disagree with
Judge Conn’s ultimate conclusion that appellant is not entitled to relief. 4

                        C. Propensity & United States v. Hills

       Prior to the panel deliberating on findings, the military judge gave the panel a
Military Rule of Evidence [hereinafter Mil. R. Evid.] 414 propensity instruction
based on charged misconduct. See Dep’t of Army, Pam. 27-9, Legal Services:
Military Judges’ Benchbook [hereinafter Benchbook], para 7-13-1 (10 Sep. 2014).
In light of Hills, appellant asks us to set aside all the findings.

       The appellate reverberations of Hills are still playing themselves out. We
have issued several opinions applying our understanding of Hills to different facts.
See United States v. Guardado, 75 M.J. 889 (Army Ct. Crim. App. 2016) (pet.
granted, 76 M.J. 166 (C.A.A.F. 2016)) (interpreting Hills and finding it bars
propensity instructions for charged offenses); United States v. Williams, ARMY
20130582, 2017 CCA LEXIS 24 (Army Ct. Crim. App. 12 Jan. 2017) (finding no
prejudice when propensity evidence was only allowed from an offense that was first
proven beyond a reasonable doubt); United States v. Hukill, ARMY 20140939, 2016
CCA LEXIS 505 (Army Ct. Crim. App. 16 Aug. 2016) (applying Hills to a case tried
by a military judge alone) (rev’d by United States v. Hukill, 76 M.J. 219 (C.A.A.F.
2017); United States v. Gaddy, 2017 CCA LEXIS 179 (Army Ct. Crim. App. 20 Mar.
2017) (using permissible propensity evidence from appellant’s guilty pleas to
establish guilt in contested specification). We have found the instructional error to
be both prejudicial and harmless. Compare United States v. Bonilla, 2016 CCA
LEXIS 590 (Army Ct. Crim. App. 30 Sep. 2016), pet. denied, 2017 CAAF LEXIS

4
  The same attorney represented appellant at trial and on appeal. In an assignment of
error we do not directly address, appellant alleges President Obama ordered
“American soldiers to follow his political agenda.” Appellant then compared
President Obama to Adolf Hitler and included in appellant’s brief a translation of the
oath taken by Wehrmacht soldiers pledging allegiance to the Führer. In the brief’s
opening statement of the case, counsel further states the allegations of child sexual
abuse “should have been the exclusive province of a divorce court in California” and
the charges represent “garden variety allegations seen in divorce case after divorce
case throughout America.” Appellant’s counsel then claims everyone in the Army,
including “the military judges, the military defense counsel, the active duty
psychologist ostensibly appointed to the defense, the court reporter, the [Article 32,
UCMJ, hearing officer], the appellate counsel, and the active duty appellate judges”
all “had a vested interest in [appellant] being convicted.” We decline to find
unlawful command influence in such a structural manner as defense counsel
suggests.


                                           7
HOFFMAN—ARMY 20140172

352 (C.A.A.F. 3 May 2017); United States v. Harris, 2017 CCA LEXIS 129 (Army
Ct. Crim. App. 28 Feb. 2017); United States v. Thompson, 2017 CCA LEXIS 7
(Army Ct. Crim. App. 6 Jan. 2017); United States v. Reynolds, 2017 CCA LEXIS 5
(Army Ct. Crim. App. 5 Jan. 2017); United States v. Hazelbower, 2016 CCA LEXIS
605 (Army Ct. Crim. App. 12 Oct. 2016) with United States v. Grant, ARMY
20150572, 2017 CCA LEXIS 357 (Army Ct. Crim. App. 25 May 2017); United
States v. Duarte, 2017 CCA LEXIS 61 (Army Ct. Crim. App. 30 Jan. 2017); United
States v. Adams, 2017 CCA LEXIS 6 (Army Ct. Crim. App. 6 Jan. 2017). On at least
one occasion, we have found the evidence harmless as to one specification, but not
as to others. United States v. Moore, ARMY 20140875, 2017 CCA LEXIS 191
(Army Ct. Crim. App. 23 Mar. 2017), pet. granted, 76 M.J. ___ (C.A.A.F. 22 June
2017) (order).

      Here, however, we decide an issue we have not previously directly addressed:
What happens when the appellant waives and/or forfeits the error by not objecting to
the Mil. R. Evid. 414 instruction at trial?

                              1. Waiver and Forfeiture

       We first address whether appellant’s repeated lack of objections to the Mil. R.
Evid. 414 instructions, especially in light of the occasional specific invitation to
object, constituted waiver or forfeiture of the issue.

       The Manual for Courts-Martial, United States (2012 ed.) [hereinafter MCM]
uses the term “waiver” in two significantly different ways. At times, the MCM “uses
the word ‘waiver’ but actually means ‘forfeiture.’” Ahern, 76 M.J. at 197. When a
rule provides for “waiver” but only “in the absence of plain error,” the effect of the
rule is “forfeiture.” Id. However, when the waiver does not contain a “plain error”
condition, then the lack of objection “waives” or extinguishes the issue on appeal.
Id. 5

       R.C.M. 920(f) states “[f]ailure to object to an instruction . . . before the
members close to deliberate constitutes waiver of the objection in the absence of
plain error.” As the CAAF recently stated in United States v. Davis, 76 M.J. 224,
2017 CAAF LEXIS 407 at *9 (C.A.A.F. 2017), “[I]f the accused fails to preserve the

5
  In general, a waived error is extinguished and cannot be raised on appeal.
However, in light of our authority to notice waived and forfeited errors under Article
66(c), UCMJ, we do not view counsel as being prohibited from raising waived or
forfeited issues to our attention. Indeed, since we must review the entire record to
determine whether to notice waived and forfeited issues, we can only benefit from
the views of the parties.


                                          8
HOFFMAN—ARMY 20140172

instructional error by an adequate objection or request, we test for plain error.”)
(citing R.C.M. 920(f); Johnson v. United States, 520 U.S. 461, 468–69 (1997)
(reviewing instructional error for “plain error” where no objection was made at
trial); United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011); see also Henderson
v. United States, 568 U.S. 266, 133 S. Ct. 1121, 1126 (2013) (reaffirming the
principle any right may be forfeited by failing to timely assert it); cf. United States
v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011) (constitutional rights can be forfeited)).
Finally, the Supreme Court recently determined constitutional error, even when
structural error, can be forfeited and waived. Weaver v. Massachusetts, No. 16-240,
slip. op. at 18-19 (U.S. June 22, 2017).

       Applying Ahern to R.C.M. 920(f), we read the rule as follows: “[f]ailure to
object to an instruction . . . before the members close to deliberate constitutes
[forfeiture] of the objection.”

       Of course, an accused may still waive instructional error. Our superior court
has stated “waiver must be established ‘by affirmative action of the accused’s
counsel,’ and not by ‘a mere failure to object to erroneous instructions or to request
proper instructions.’” United States v. Smith, 50 M.J. 451, 455-56 (C.A.A.F. 1999)
(quoting United States v. Mundy, 2 U.S.C.M.A. 500, 503-04, 9 C.M.R. 130, 132-34
(1953)). “[T]here are no magic words to establish affirmative waiver.” United
States v. Gutierrez, 64 M.J. 374, 376-77 (C.A.A.F. 2007) (citing Smith, 50 M.J. at
456). In making waiver determinations, we look to the record to see if the
statements signify that there was a “purposeful decision” at play. Gutierrez, 64 M.J.
at 377.

       The CAAF has recently stated “as a general proposition of law, [a statement
of] ‘no objection’ constitutes an affirmative waiver of the right or admission at
issue.” Swift, 76 M.J. 210, 2017 CAAF LEXIS 299 at *20 (citing United States v.
Campos, 67 M.J. 330, 332–33 (C.A.A.F. 2009)). “[W]here, as here, an accused
states he has “no objection” to the admission of a confession at trial, he has waived
his right to complain on appeal . . . .” Swift, 2017 CAAF LEXIS 299 at *3.

       In other words a statement of “no objection” is fundamentally different than
silence or the failure to object. A statement of “no objection” is an “affirmative
action” that can establish waiver. In taking this affirmative action, counsel is either
competent and has made a reasoned decision or counsel is stating he or she has no
objection negligently or for some other reason. Absent evidence to the contrary, we
presume that counsel are competent under Strickland v. Washington, 466 U.S. 668,
690 (1984), thus defense counsel stating that he or she has “no objection” is a
purposeful decision.

      A defense attorney who states he or she has “no objection,” “will nearly
always waive any potential objection.” United States v. Natale, 719 F.3d 719, 729-
                                           9
HOFFMAN—ARMY 20140172

30 (7th Cir. 2013). This appears to be in accord with most other federal circuit
courts, which treat a statement of “no objection” as waiving (versus forfeiting)
instructional error.

      Consider the Fourth Circuit’s analysis in United States v. Smith:

             Because Smith’s counsel did not object to the instructions
             after they were given to the jury . . . we must determine if
             the error has been forfeited or waived. If forfeited, we
             review for plain error. If the error has been waived, it is
             not subject to appellate review. Here, Smith’s counsel had
             an opportunity to object to the jury instructions to correct
             any error or to preserve the issue for appeal, and he stated
             he had no objection. We find that such an “intentional
             relinquishment or abandonment of a known right” waives
             any error based on the jury instructions.

No. 97-4904, 1998 U.S. App. LEXIS 22673, at *3-4 (4th Cir. Sep. 16, 1998)
(emphasis added); see also United States v. Handy, 592 F. App’x 893, 910 n.13
(11th Cir. 2015) (“Handy waived any right to a limiting instruction by affirmatively
stating during the charge conference that she had no objection to the district court’s
suggestion not to give a Rule 404(b) instruction.”); United States v. Kirklin, 727
F.3d 711, 716 (7th Cir. 2013) (“[H]is attorney stated that he had no objections to the
final instructions before they were read to the jury. We have cautioned before that
‘[c]ounsel’s affirmative statement that he had no objection to the proposed [jury]
instruction constitutes waiver of the ability to raise this claim on appeal.’”); United
States v. Murry, 395 F.3d 712, 717 (7th Cir. 2005) (“Murry’s lawyer clearly and
affirmatively stated that he had no objection to the jury instructions. Any objection
was therefore waived and appellate review is precluded.”); United States v. Watkins,
No. 02-50801 Conference Calendar, 2003 U.S. App. LEXIS 29147, at *1 (5th Cir.
June 24, 2003) (“The record reflects that Watkins’ counsel waived this issue by
advising the district court that he had no objection. . . .”); United States v. Wall, 349
F.3d 18, 24 (1st Cir. 2003) (“Indeed, at a sidebar conference held after the jury
charge, counsel twice confirmed upon inquiry from the judge that he had ‘no
objection and no additional requests.’ . . . appellant waived any right to object to
them on appeal.”); United States v. Smith, 891 F.2d 703, 709 (9th Cir. 1989) (“There
was, however, no objection to the instruction. The error was waived, unless
manifest. It was not manifest.”); United States v. Byrd, 542 F.2d 1026, 1028 (8th
Cir. 1976) (“Where, by failing to object after the charge is given, a party does not
give the trial court a fair opportunity to correct the questioned instructions, that
party is foreclosed by Rule 30 from raising the issue on appeal.”).

      Thus, an appellant’s statement of “no objection” to the instructions is a
“purposeful decision” and waiver will apply. Gutierrez, 64 M.J. at 377. This is at
                                           10
HOFFMAN—ARMY 20140172

least true in circumstances where appellant “was fully aware of the [issue], and he
had numerous opportunities to contest its admission and use.” Swift, 76 M.J. 210,
2017 CAAF LEXIS 299, at *20.

      In the present case, the proposed Mil. R. Evid. 414 instructions were
discussed several times. Appellant never objected to the government’s notice of
using charged offenses for Mil. R. Evid. 414 purposes and ultimately stated he had
“no objection” to the military judge’s instructions.

       Prior to trial, the government provided notice under Mil. R. Evid. 414 of both
charged and uncharged sexual misconduct. Appellant filed a motion in limine to
exclude the government’s evidence. Crucially, appellant’s motion directly addressed
only the government’s notice of uncharged misconduct. 6 At an Article 39(a), UCMJ,
motions session, the military judge offered appellant a chance to argue his motion.
Appellant’s counsel stated “I believe we will stand with our motion in limine as
written.” The military judge issued a written ruling granting the defense’s motion in
part and excluding some of the uncharged misconduct provided in the government’s
Mil. R. Evid. 414 notice. As there was no objection, the military judge’s ruling did
not directly address the charged misconduct.

       During an Article 39(a), UCMJ, session, the military judge specifically
advised appellant of his intent to instruct the panel that “I’m going to give the 413
[sic 414] uncharged misconduct and charged misconduct instruction.” When offered
a chance to object, appellant requested an instruction on Mil. R. Evid. 404(b) and
adultery, but did not object to the Mil. R. Evid. 414 instruction. At a third Article
39(a), UCMJ, session, the military judge again repeated his intent to instruct the
members on the permissible uses of propensity inferences stemming from charged
misconduct and specifically articulated a Mil. R. Evid. 403 balancing test. Again,
appellant did not object to the instruction.

       The military judge then instructed the members. For all substantive purposes,
the instruction given by the military judge was the same as the one in Hills. The
military judge asked if appellant objected to the instruction. Appellant’s counsel
responded, “No, Your Honor.” The military judge then asked if appellant requested
any additional instruction, appellant’s counsel again stated, “No, Your Honor.”

       Accordingly, we must decide whether appellant’s repeated failure to object—
and statement of no objection—constituted waiver or only forfeiture. Importantly, it
was not merely an instance where the military judge instructed the panel and

6
  The uncharged misconduct generally involved allegations by the same victims as
the charged offenses but for which the statute of limitations had expired.


                                         11
HOFFMAN—ARMY 20140172

appellant failed to lodge an objection. Rather, there were at least three different
Article 39(a), UCMJ, sessions in which the proposed Mil. R. Evid. 414 instructions
were discussed. Furthermore, appellant lodged a written motion objecting to the
government’s Mil. R. Evid. 414 notice on uncharged conduct without objecting to
the notice given on the charged conduct. This weighs heavily towards finding a
“purposeful” decision.

       However, most controlling is the CAAF’s recent decision in Swift.
Appellant’s statement that he had “no objection” to the introduction of a confession
“as a general proposition of law . . . constitute[d] an affirmative waiver of the right
or admission at issue.” Swift, 76 M.J. 210, 2017 CAAF LEXIS 299, at *20. We
similarly find appellant waived, not forfeited, any objection to the instructions.

                2. Did United States v. Hills Announce a “New Rule?”

       Appellant asserts that the CAAF in Hills announced a “new rule” and,
therefore, he is entitled to the benefit of the new rule while the case is on direct
appeal.

       Appellant directs us to United States v. Harcrow, 66 M.J. 154, 160 (C.A.A.F.
2008). In Harcrow, while the case was on direct appeal, the Supreme Court decided
the seminal case of Crawford v. Washington, 541 U.S. 36 (2004), which
reinterpreted a defendant’s constitutional right to confront witnesses. At trial,
Harcrow had not objected to the admission of a lab report as a public record. Prior
to Crawford, the admission of forensic lab reports as public records was routine and
was specifically sanctioned by Mil. R. Evid. 803(8). The CAAF viewed Crawford as
crafting a new rule and applied it retroactively, ignoring the fact appellant had
specifically waived any objection to the admission of the lab report.

        Harcrow adopts the Supreme Court’s decision in Johnson, that “where the law
at the time of trial was settled and clearly contrary to the law at the time of appeal --
it is enough that an error be ‘plain’ at the time of appellate consideration.”
Harcrow, 66 M.J. at 159 (citing Johnson, 520 U.S.at 468). The key here is that
“settled” law must have been overturned between the time of trial and on appeal.

       Thus, we must decide whether, at the time of trial, it was well settled the
government could use propensity evidence stemming from charged offenses to prove
other charged offenses. The CAAF has clearly said this issue was never settled law.
Hills, 75 M.J. at 353.

       The CAAF’s decision in Hills clearly stands for the proposition the law was
not “settled” at the time of trial. The court stated the issue was one of “first
impression.” Id. The court stated it was “obvious” that Mil. R. Evid. 413 cannot be


                                           12
HOFFMAN—ARMY 20140172

used to allow propensity inferences stemming from charged offenses. Issues of first
impression cannot be well settled.

       Nowhere in Hills did the court overturn or reverse prior case law. Indeed, the
court specifically disavowed such an inference: “Neither this Court nor any federal
circuit court has permitted the use of [Mil. R. Evid] 413 or Fed. R. Evid. 413 as a
mechanism for admitting evidence of charged conduct to which an accused has
pleaded not guilty in order to show a propensity. . . .” Id. at 354. The court went on
to say the plain language of the rule, the structure of the rule, and its legislative
history all dictated the outcome of its decision in Hills. In other words, Hills clearly
states it was never well settled that the instruction in Hills was proper.

       As we have tried to understand and apply Hills, we have discussed in other
cases whether some of the CAAF’s cases that predated Hills appeared to sanction the
use of propensity evidence stemming from charged offenses. See, e.g. Moore, 2017
CCA LEXIS 191 at *15-18 (Mulligan, S.J. dissenting). However, just as we must
follow Hills when determining whether an instruction was error, we are likewise
bound by the CAAF’s interpretation of whether Hills overturned settled law under
Harcrow and Johnson.

       We note that even were we to find that Hills established a new rule, it would
not transform waived error into preserved error. We would still, under Harcrow,
test for plain error. In Harcrow, after finding that Crawford established a new rule,
the CAAF conducted a plain error analysis because the “new rule” caused them to
reject appellant’s waiver of the issue. That is, the CAAF refused to apply waiver,
but still gave weight to appellant’s failure to preserve the issue at trial.

       Finally, regardless of how one reads Hills, appellant had numerous grounds on
which to object to the government’s notice on their use of Mil. R. Evid. 414 as
applied to charged conduct. In other words, even ignoring the CAAF’s decision in
Hills, there was never an understanding that the use of propensity evidence
stemming from charged conduct was per se admissible. 7 The CAAF’s decision in
United States v. Wright, 53 M.J. 476 (C.A.A.F. 2000), provided numerous grounds to
argue a propensity inference should have been disallowed in a case. Most obviously,
appellant was free to argue under Mil. R. Evid. 403 the probative value of the
propensity inference could be easily outweighed by the danger of unfair prejudice.
Appellant never objected to the instructions on charged misconduct–for any reason.



7
 For this reason, this case is unlike Harcrow and United States v. McMurrin, 70
M.J. 15 (C.A.A.F. 2011).


                                          13
HOFFMAN—ARMY 20140172

      Accordingly, as the CAAF did not view Hills as overturning well-settled law,
appellant’s waiver is left intact.

        We do note, however, that in CAAF’s recent decision in United States v.
Hukill, 76 M.J. 219, 2017 CAAF LEXIS 305 (C.A.A.F. 2017), the court describes
the use of the Hills instruction as “a common understanding of the law” at the time
of trial. Hukill, 2017 CAAF LEXIS 305 at *6. However, we do not assess this as
changing our understanding of whether Hills overturned “settled law” for two
reasons. First, our superior court in Hukill did not question or overturn the
sweeping language used in Hills that clearly stated the issue was not settled law (or
at least not well settled in appellant’s favor). Second, the only authority cited in
Hukill for this “common understanding” was the Benchbook. While we would agree
with the CAAF regarding the common understanding, the Benchbook is not a source
of law that makes law “settled.”

        However, as Hukill may be interpreted as stating that Hills announced a new
rule we will assume as much. If Hills is a new rule, we would set aside appellant’s
waiver and test for plain error. See Harcrow, 66 M.J. at 159 (testing for plain error
after finding Crawford announced a new rule). A “new rule” does not transform
“waiver” into preserved error. See McMurrin (testing for plain error when appellant
was convicted of lesser-included offense that was invalid based on the Court’s
subsequent opinion in United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010)).

                            3. Forfeiture and Plain Error

       Assuming appellant did not waive the instructional issue in this case (either
because his acts were not waiver or because Hills did announce a new rule), we turn
to the issue of forfeiture and plain error.

       Appellant’s assignment of error to this court was that the military judge
“committed plain and prejudicial error” when he instructed the panel on propensity.
That is, appellant appears to concede that plain error is the appropriate standard of
review. If so, the briefs of the parties both jumped over the plain error analysis and
instead focused on whether the government had proven that any error was harmless
beyond a reasonable doubt. Accordingly, and to provide transparency so that our
reasoning may receive appropriate scrutiny, we discuss the standard of review at
some length.

       To establish plain error, appellant must show: (1) an error was committed; (2)
the error was plain, or clear, or obvious; and (3) the error resulted in material
prejudice to substantial rights. United States v. Paige, 67 M.J. 442, 449 (C.A.A.F.
2009).



                                          14
HOFFMAN—ARMY 20140172

       Here, because under Hills any error was one of a constitutional dimension,
“[o]nce [appellant] meets his burden of establishing plain error, the burden shifts to
the Government to convince us that this constitutional error was harmless beyond a
reasonable doubt.” United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005) (internal
citation omitted); Paige, 67 M.J. at 449.

       In other words, under Paige and Carter, we do not reach the constitutional
standard of “harmless beyond a reasonable doubt” unless appellant first meets his
burden to establish plain error. “Only if appellant meets that burden of persuasion
does the burden shift to the Government to show that the error was not prejudicial.
If the plain error is constitutional error, the Government must convince us beyond a
reasonable doubt that the error was not prejudicial.” United States v. Carpenter, 51
M.J. 393, 396 (C.A.A.F. 1999) (citing United States v. Powell, 49 M.J. 460, 464-65
(C.A.A.F. 1998)). 8

       We do not find appellant has met his burden of establishing plain error, and
therefore we never reach the issue of whether the error is harmless beyond a
reasonable doubt.

                                a. Was There Error?

      The first question—was there error?—is answered in the affirmative by our
superior court’s decision Hills and our decision in Guardado.

                        b. Was the Error Plain and Obvious?

       We next turn to the question of was the error “plain and obvious.” Whether
an error is plain and obvious has two parts.

        First, we ask how well-settled was the law on the issue. Error is “plain” when
it is “obvious” or “clear under current law.” United States v. Olano, 507 U.S. 725,
734 (1993). Here, the military judge’s ruling in this case was not plainly wrong at the
time he made it. As discussed above, the use of propensity evidence stemming from a
charged offense was not settled at the time of trial. Indeed, in Hills, the CAAF
described the issue as one of “first impression.” Hills, 75 M.J. at 353. As an
example, as early as 2007, the CAAF had affirmed the findings in a case that involved


8
  For all practical purposes, if appellant establishes plain error, the inquiry will
likely end. If an appellant has shown material prejudice to a substantial right–as is
required for plain error–it is unlikely the government could ever show that the error
was harmless beyond a reasonable doubt.


                                          15
HOFFMAN—ARMY 20140172

a propensity instruction on both charged and uncharged conduct, but without directly
addressing the issue. United States v. Schroder, 65 M.J. 49, 52 (C.A.A.F. 2007).

       Second, we look to see how obvious the error was in the context of the trial.
When examining this prong, we ask whether the error was so obvious “in the context
of the entire trial” that “the military judge should be ‘faulted for taking no action’
even without an objection.” United States v. Gomez, 76 M.J. 76, 81 (C.A.A.F. 2017)
(citing United States v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009) (quoting United
States v. Maynard, 66 M.J. 242, 245 (C.A.A.F. 2008))); see also United States v.
Frady, 456 U.S. 152, 163 (1982) (Noting that error is clear if “the trial judge and
prosecutor [would be] derelict in countenancing it, even absent the defendant’s
timely assistance in detecting it.”). 9 In other words, we do not find errors to be plain
and obvious when the importance of the issue was not obvious at trial. A military
judge is neither omniscient nor clairvoyant and, often having no prior knowledge of
how the evidence will unfold, is likely in a worse position than the parties to
contemporaneously know the significance of any one piece of evidence or issue.
This is another way of stating that for the military judge to commit plain error, it is
not enough to find that the military judge erred with the benefit of hindsight;
instead, the gravity of the error needs to be plain at the time.

       As previously discussed, there are occasions where an appellate court will
apply a fiction and retroactively assume that the error was plain and obvious. “The
Supreme Court has stated that ‘where the law at the time of trial was settled and
clearly contrary to the law at the time of appeal -- it is enough that an error be
‘plain’ at the time of appellate consideration.” Harcrow, 66 M.J. at 159 (“This case
illustrates the curious outcome flowing from the confluence of the retroactivity rule
and the plain error doctrine.”) (Ryan, J. concurring) (citing Johnson, 520 U.S. at
468).

      In Henderson, this fiction was further expanded to included areas of unsettled
law. The Supreme Court answered the question of what happens to subsequent cases


9
  The CAAF has rejected “application of the fourth prong of Olano when addressing
questions under Article 59(a), UCMJ.” United States v. Turnstall, 72 M.J. 191, 196
n.7 (C.A.A.F. 2013). Accordingly, comparisons of decisions of federal and military
courts are not an exact “apples to apples” comparison. However, few federal cases
turn on the fourth prong. (That is, it is the rare case where a federal district judge
committed plain and obvious error, the error prejudiced the substantive rights of the
federal defendant, but the federal defendant does not obtain relief on appeal because
of Olano’s fourth prong). Thus, in cases that do not turn on Olano’s fourth prong,
federal case law may often be persuasive.


                                           16
HOFFMAN—ARMY 20140172

when “courts of appeals . . . clarify the law through their opinions.” The Court
answered the question as follows:

             When a court of appeals does so, will not all defendants,
             including many who never objected in the court below,
             insist that the court of appeals now judge their cases
             according to the new rule? And will “plain error” in such
             cases not then disappear, leaving only simple “error” in its
             stead?

             The answer to this claim is that a new rule of law, set
             forth by an appellate court, cannot automatically lead that
             court to consider all contrary determinations by trial
             courts plainly erroneous. Many such new rules, as we
             have pointed out, concern matters of degree, not kind.
             And a lower court ruling about such matters (say, the
             nature of a closing argument), even if now wrong (in light
             of the new appellate holding), is not necessarily plainly
             wrong. The Rule’s requirement that an error be “plain”
             means that lower court decisions that are questionable but
             not plainly wrong (at time of trial or at time of appeal) fall
             outside the Rule’s scope.

             And there are other reasons for concluding that our
             holding will not open any “plain error” floodgates. As we
             have said, the Rule itself contains other screening criteria.
             The error must have affected the defendant’s substantial
             rights and it must have seriously affected the fairness,
             integrity, or public reputation of judicial proceedings.
             Olano, supra, at 732, 113 S. Ct. 1770 []. When courts
             apply these latter criteria, the fact that a defendant did not
             object, despite unsettled law, may well count against the
             grant of Rule 52(b) relief. Moreover, the problem here
             arises only when there is a new rule of law, when the law
             was previously unsettled, and when the District Court
             reached a decision contrary to the subsequent rule. These
             limitations may well explain the absence of any account
             before us of “plain error” inundation . . . .




                                           17
HOFFMAN—ARMY 20140172

133 S. Ct. at 1130. 10

       In Guardado, we described the CAAF’s decision in Hills as “sweeping.” That
is, Hills was a decision “of kind” not “degree.” Accordingly, under current law, the
Hills instruction was not merely wrong but was plainly wrong. Thus while we do
not find Hills to have been a “new rule” because it did not overturn settled law, we
do find that post-Hills, a Hills instruction is plainly wrong. Therefore, this prong
too weighs in appellant’s favor.

                         c. Material Prejudice to a Substantial Right

      The third and final prong of the plain error test is prejudice. A finding or
sentence of a court-martial “may not be held incorrect on the ground of an error of
law unless the error materially prejudices the substantial rights of the accused.”
UCMJ art. 59(a).

       This prong of the test is similar, but different, from the third prong of the
plain error test employed by federal courts. 11 While military courts look for a
“material prejudice” to a substantive right, federal courts have no requirement for
“materiality.” Compare Article 59(a), UCMJ, with Fed. R. Crim. P. 52(b).

      The CAAF has described this difference as “set[ting] a higher threshold for
overturning [military] convictions” as compared to federal courts. United States v.
Humphries, 71 M.J. 209, 220 (C.A.A.F. 2012). On the margin, this difference would

10
   As previously discussed, the CAAF has determined that the Olano’s fourth prong
is inapplicable to court-martial appeals. Accordingly, the only difference between
“plain error” and “preserved error” is the burden of proof on appeal and whether the
error is “plain and obvious.” Thus, we echo Justice Breyer’s opinion in Henderson
that it is not enough that an appellate court determine that a lower court was wrong
(i.e. committed error); for appellant to receive relief, the court must have been
plainly wrong.
11
  The test for plain error has been analogized as being a restatement of the test for
ineffective assistance of counsel. Close v. United States, 679 F.3d 714, 720 (8th
Cir. 2012) (“The standard for prejudice under Strickland is virtually identical to the
showing required to establish that a defendant’s substantial rights were affected
under plain error analysis.”) (citing Becht v. United States, 403 F.3d 541, 549 (8th
Cir. 2005), cert. denied, 546 U.S. 1177 (2006); accord United States v. Dominguez
Benitez, 542 U.S. 74, 83 (2004); but see United States v. Bono, 26 M.J. 240, 242 n.2
(C.M.A. 1988) (“We do not mean to imply that a finding of plain error will
automatically equate to ineffective assistance of counsel.”)).


                                             18
HOFFMAN—ARMY 20140172

indicate a military appellant would be less likely to receive relief for plain error
based on the third prong.

       However, in practice, the standard for determining whether an appellant has
proven the prejudice prong in cases of plain error appears to be the same in both
federal and military courts. As the CAAF later stated in Humphries, “the Supreme
Court defined the third prong in a manner consistent with our holdings . . . the
appellant must demonstrate a reasonable probability that, but for [the error claimed],
the result of the proceeding would have been different.” Id. at 221 (internal
citations and quotations omitted).

       Here, appellant has not met his burden. Issues of “propensity” did not loom
large over the court-martial, which produced over 2,100 pages of transcribed record
and dozens of government exhibits, including journals by his children. But for the
errant instruction, it would be hard to say such concerns were present at all. The
government did not argue propensity; to include the permissible propensity
inferences that related to the uncharged misconduct. 12 Of the fifteen specifications
that alleged either a violation of Article 120 or Article 125, the panel acquitted
appellant outright of seven specifications and found appellant guilty of a lesser-
included offense in one instance. To find error in this case, we would likely need to
find that Hills instructional error is per se prejudicial error. Accordingly, as we do
not find appellant has met his burden 13 of establishing material prejudice to a
substantial right, we do not find plain error.

       As we do not find plain error, we do not reach the issue of whether the
government has proven any error harmless beyond a reasonable doubt. This is the
difference between how we treat complaints of plain versus preserved constitutional
error. It is a substantial difference. The CAAF’s decision in Hills is notable for
analyzing this difference.


12
  At trial, and on appeal, appellant asserted the charges stem from a conspiracy
between the four girls to frame appellant. With that as the defense theory, the
government did argue that it was incredulous that four victims would simultaneously
agree to fabricate allegations against appellant. The government did not argue,
however, that if appellant committed one offense, this made it more likely that he
committed other offenses.
13
  More accurately, appellant did not attempt to meet this burden. Despite assigning
the issue as one of plain error, appellant’s brief focused entirely on stating that the
government could not prove that the error was harmless beyond a reasonable doubt–
not whether appellant had met his burden of establishing plain error.


                                           19
HOFFMAN—ARMY 20140172

       Hills involved a case where the Mil. R. Evid. 413 instruction was given “over
defense counsel’s objection.” Hills, 75 M.J. at 352. That is, the error was
preserved. When constitutional error is preserved, an appellate court tests to see if
the error was harmless beyond a reasonable doubt. Id. However, when Hills was
before this court, we did not see the error as constitutional and tested only for non-
constitutional error. The CAAF in Hills noted this difference in standards as
follows: “Given that we apply a different standard for assessing the error than the
ACCA did, we also reach a different conclusion regarding the error’s import to the
outcome of the case.” Id. at 358. That is, had the error in Hills been unpreserved,
Hills itself may have turned out differently. 14 The accused in Hills objected to the
instruction and preserved the instructional error; appellant did not.

      Setting aside the issue of waiver, unlike Hills, here we are presented with
unpreserved error for which we first must test for plain error. Accordingly, we
likewise reach a different result than our superior court did in Hills, and we find
appellant has not met his burden of showing plain error. We read this result as being
consistent with the distinction CAAF made in Hills regarding preserved and
unpreserved errors.

                                 D. Flight from Trial

       Appellant fled his trial after the government rested its case on the merits. The
military judge determined appellant’s absence was voluntary (in a separate court-
martial, he would later plead guilty to being absent without leave) and the case
proceeded without him. At oral argument, appellant’s counsel stated the defense
case had anticipated appellant testifying, making his absence from trial a significant
blow to the defense presentation.

      We specified the issue of whether the military judge erred when he instructed
the panel during sentencing they could consider appellant’s absence in sentencing.
In answering our specified issue, we address three sub-questions. First, may
evidence of an accused’s voluntary absence ever be admitted in a court-martial? If


14
   This is not the first time this panel has addressed a case in which the accused did
not object to a propensity instruction and the trial counsel never argued issues of
propensity. In Moore, we were also presented with a case in which appellant did not
object to the Hills instruction. 2017 CCA LEXIS 191 at *5-6. In that case,
however, we accepted the government’s concession any error was obvious error. Id.
at *6. We also accepted the government’s framing of the issue as being one of proof
beyond a reasonable doubt. In Guardado, we assumed without deciding the error
was plain error. 75 M.J. at 897 n.10.


                                          20
HOFFMAN—ARMY 20140172

so, under what circumstances can the evidence be admitted for the first time during
sentencing? And, finally, were the military judge’s instructions in this case proper?

       We answer these questions as follows: Consistent with overwhelming case
law, we find when permitted by the rules of evidence, an accused’s voluntary
absence from trial is admissible. However, the government faces a tougher burden
when evidence of an accused’s voluntary absence is admitted for the first time
during sentencing, as the evidence must also be admissible under R.C.M. 1001(b).
Finally, we find the military judge erred when instructing the panel on how they
could consider this evidence.

       Ultimately, however, as appellant did not object to either the introduction of
evidence of his voluntary absence or the military judge’s instruction, we test for
plain error. We find appellant has not met his burden of establishing plain error.

                                    1. Background

       After appellant did not appear at his court-martial, the military judge had an
extensive Article 39(a), UCMJ, session. The military judge determined appellant
had voluntarily absented himself from the court-martial and the court-martial could
continue. That appellant was voluntarily absent from his court-martial–and that the
court-martial could therefore continue–is not reasonably in dispute. Rather, the
issue is whether it is permissible to allow the government to introduce evidence of
appellant’s voluntary absence to the panel.

       After the military judge found appellant was voluntarily absent, the
government did not request to present any evidence to the panel on appellant’s
intentional absence during findings. Accordingly, the military judge instructed the
panel they could not consider appellant’s absence for any reason. At appellant’s
counsel’s request, the military judge modified the standard instruction and gave the
following instruction:

             Members, you may notice that the accused is not present.
             Various circumstances may exist whereby a court-martial
             can proceed without the accused being present in the
             courtroom. I have determined that such circumstances
             exist in this case. You are not permitted to speculate as to
             why CW4 Hoffman is not present in court today. You
             must not draw any inference adverse to CW4 Hoffman
             because he is not appearing personally before you. You
             may not infer that he has done anything wrong, and you
             may not infer that he is guilty of any offense because of
             his absence in - - from court today. If he’s found guilty of
             any offense by this court-martial, you must not consider
                                          21
HOFFMAN—ARMY 20140172

             his absence before this court-martial, for any purpose
             when you close to deliberate upon the sentence to be
             adjudged if you find him guilty of any offense.

       The instruction had the effect of making appellant’s absence irrelevant for both
findings and sentence. Unless read closely, the instruction may have left the lay
listener with the impression the military judge had sanctioned the accused’s absence,
as the military judge informed the panel that there are many “circumstances” where a
court-martial may continue without an accused, and that the military judge himself
had determined “that such circumstances exist in this case.”

      While the court was closed for deliberations on findings, the government
requested they be allowed to introduce evidence of appellant’s voluntary absence
during sentencing as evidence of appellant’s lack of rehabilitative potential. After
reviewing several cases, the military judge reconsidered his prior decision and
allowed the government to present evidence that appellant was voluntarily absent.

        The government called a single witness during its presentencing case, Mr.
Hutton, who testified by phone that appellant and his girlfriend stopped by his house
the previous evening around 8:30 or 9:00. Mr. Hutton testified that he lived in
Oklahoma City, Oklahoma. (The trial was at Fort Leonard Wood, Missouri). He
testified that appellant stayed for about five minutes, told Mr Hutton that they “were
on the move,” and asked Mr. Hutton to look after his dog. Appellant left Mr. Hutton
with a large bag of dog food and tried to give him $100 to cover expenses. Overall,
the effect of the testimony was to present appellant and his girlfriend as on the run. 15

       The military judge drafted an instruction for the panel as to how they could
use this evidence. He first read the substance of the instructions to the parties

15
  After he was sworn, but as the trial counsel asked Mr. Hutton if he was in a place
where he could give testimony, there was a disturbance on Mr. Hutton’s end of the
phone call. Mr. Hutton explained he was trying to get appellant’s dog back in the
house. During this brief period, Mr. Hutton switched from speaking to the trial
counsel, to apparently addressing the dog. In the midst of this, appellant’s counsel
objected to “this kind of testimony.” On appeal, appellant describes this as an
objection to Mr. Hutton’s providing evidence about appellant’s absence. We
disagree as a matter of fact. The objection, which was never developed or
maintained, was aimed at either the ongoing commotion being presented to the
members or perhaps to taking telephonic testimony. In any event, immediately after
the objection, Mr. Hutton stated “Now, I am in the house and it’s quiet.” Mr. Hutton
then continued his testimony without interruption, and without further objection.
There was no objection to the presentation of evidence that appellant was absent.


                                           22
HOFFMAN—ARMY 20140172

outside the presence of the members. Neither side objected to the instruction. He
then read the following instruction to the members:

             The voluntary absence of the accused from these
             proceedings is uncharged misconduct. You haven’t
             convicted him of that, and you can’t convict him of that
             because he hasn’t been charged with that. You may
             consider this information for the limited purpose of its
             tendency, if it has any, to prove the rehabilitative potential
             of the accused and as evidence directly relating to the
             offenses of which the accused stands convicted. You may
             not consider it for any other purpose and you may not
             mete out additional punishment for this uncharged offense.

      The effect of the instruction was to tell the panel that appellant was
voluntarily absent from the court-martial. The panel was permitted to consider
appellant’s voluntary absence only to the extent that it “prove[s] the rehabilitative
potential” and as evidence “directly relating to the offenses.”

                 2. May Evidence of an Accused’s Voluntary Absence
                     from Trial be Admitted in a Court-Martial?

       United States v. Minter, 8 M.J. 867 (N.M. Ct. Crim. App. 1980) has perhaps
been understood as prohibiting the introduction of evidence of an accused’s
voluntary absence in all cases, thereby precipitating the sole instruction currently
found in the Benchbook. Two years later, in United States v. Hardin the Navy-
Marine Corps Court of Criminal Appeals [hereinafter Navy Court] stated “we
believe it is well-settled that an accused’s absence from trial cannot be considered
by the fact-finder for any purpose whatsoever.” 14 M.J. 880, 881 (N.M. Ct. Crim.
App. 1982). However, we believe that interpretation of Minter is mistaken for three
reasons.

       First, three years after Hardin was decided, the Navy Court specifically
disavowed the reasoning in Hardin. United States v. Chapman, 20 M.J. 717, 718
(N.M. Ct. Crim. App. 1985) (Chapman I). The court described the sentence from
Hardin quoted above as “dictum” and, accordingly, “we are not bound by it.” Id. at
718. As we discuss in more detail below, the court in Chapman I went on to permit
the introduction of evidence of appellant’s voluntary absence from the court-martial.
To the extent that the Navy-Marine Court held, in either Minter or Hardin, that
evidence of voluntary flight was per se prohibited, that same court had reversed
course by 1985.

       Second, read closely, Minter does not stand for the proposition that evidence
of an accused’s absence from a court-martial is per se prohibited. The problem in
                                          23
HOFFMAN—ARMY 20140172

Minter is the court told the panel the court had found the accused committed
uncharged misconduct. While a military judge may act as gate-keeper prior to
admitting evidence of uncharged misconduct, once admitted, it is up to the fact-
finder to determine whether to believe the evidence, and how much weight to give it.
See Huddleston v. United States, 485 U.S. 681 (1988). When the military judge in
Minter instructed the panel the accused was voluntarily absent, he substituted the
panel’s fact-finding authority for his own.

       Finally, Minter was a case where the court-martial predated the promulgation
of the Military Rules of Evidence in 1980. Thus, even to the extent Minter stands
for the proposition an accused’s voluntary absence is per se inadmissible at a court-
martial, the reasoning in Minter must yield to the rules of evidence. Put differently,
if an accused’s voluntary absence is admissible under the Military Rules of
Evidence–discussed below–Minter would not otherwise operate to prohibit the
admission of the evidence.

      Accordingly, we do not read Minter as being current persuasive authority.
Notwithstanding the Benchbook instruction was copied from Minter, no case other
than Hardin has ever cited Minter as authority. In turn, the only case to ever cite to
Hardin was when the Navy Court disavowed Hardin in Chapman I.

      Instead, we believe the admissibility (and inadmissibility) of evidence of an
accused’s voluntary absence from trial is determined by reference to the Military
Rules of Evidence–and in the case of evidence introduced during sentencing, R.C.M.
1001(b).

       In general, evidence of an accused’s flight may be admitted as either: 1) an
admission by conduct; or 2) as evidence of uncharged misconduct. Our review of
case law indicates that federal courts generally admit evidence of an accused’s flight
under the former theory.

       That evidence of a defendant’s flight is sometimes admissible would not
appear to be controversial. Indeed, as the Supreme Court said well over a century
ago, “the law is entirely well settled that the flight of the accused is competent
evidence against him as having a tendency to establish his guilt.” Allen v. United
States, 164 U.S. 492, 499, (1896); see also United States v. Simmons, 54 M.J. 883,
891 (N.M. Ct. Crim. App. 2001) (“Military case law has long supported the
admission of evidence of flight as evidence of consciousness of guilt.”); United
States v. Murphy, 996 F.2d 94, 96 (5th Cir. 1993) (“Evidence of an accused’s flight
is generally admissible as tending to establish guilt.”), cert. denied, 510 U.S. 971
(1993); United States v. Sanchez, 790 F.2d 245, 252 (2nd Cir. 1986) (“[I]t is
universally conceded that the fact of an accused’s flight . . . is admissible as
evidence of consciousness of guilt.”) (internal citations omitted); United States v.
Touchstone, 726 F.2d 1116, 1119 (6th Cir. 1984) (in a case involving the midtrial
                                          24
HOFFMAN—ARMY 20140172

flight of defendant “[o]ur review of the law satisfies us that ‘flight’ is generally
admissible as evidence of guilt, and that juries are given the power to determine how
much weight should be given to such evidence”); United States v. Martinez, 681
F.2d 1248, 1256 (10th Cir. 1982) (“Traditionally flight has been viewed as an
admission by conduct which expresses consciousness of guilt. . . . As such, flight
evidence carries with it a strong presumption of admissibility.”).

       All of this is a lengthy way of stating the admissibility of evidence of an
accused’s voluntary absence, like other evidence of admissions by conduct and
uncharged misconduct, is determined by reference to the rules of evidence. The
military judge serves as an initial gatekeeper, but once admitted, leaves to the fact-
finder to determine the credibility and weight of the evidence. Whether the evidence
is admissible, and what weight it might be given, turns on the facts of each
individual case. To the extent Minter says otherwise, we do not find it to be
persuasive authority. Our own decision in United States v. Denney also said as
much. 28 M.J. 521, 524 n.2 (A.C.M.R. 1989).

      Accordingly, we see no per se prohibition on introducing evidence of an
accused’s voluntary absence as evidence.

               3. May Evidence of an Accused’s Voluntary Absence be
                    Introduced for the First Time in Sentencing?

       In the findings portion of the trial, evidence of flight may be relevant to the
issue of guilt. “It is universally conceded today that the fact of an accused’s flight,
escape from custody, resistance to arrest, concealment, assumption of a false name,
and related conduct, are admissible as evidence of consciousness of guilt, and thus
of guilt itself.” Vol. II, J. Wigmore on Evidence, Chadbourn Rev. § 276.

       However, when evidence of flight is admitted for the first time in sentencing,
the issue of guilt has already been decided. Thus, what might have been admissible
during the merits portion of a trial may be inadmissible at sentencing if it does not
make any fact at issue more or less likely. See Mil. R. Evid 401. Stated another
way, evidence that tends to show the accused committed the offense is not relevant
in a presentencing proceeding unless it also bears on the appropriate sentence. See
R.C.M. 1001(b).

      During presentencing proceedings, evidence introduced in sentencing must be
relevant to the determination of a proper sentence. 16 Id. Evidence that the accused

16
  For example, courts have found it permissible to introduce evidence of an
accused’s flight through the accused’s service records. See R.C.M. 1001(b)(2). This

                                                                        (. . . continued)
                                           25
HOFFMAN—ARMY 20140172

acted in a manner that demonstrates consciousness of guilt or shows the accused had
a guilty mind is of little relevance when the accused’s guilt has already been
determined. Thus, our superior court, in United States v. Wingart, 27 M.J. 128
(C.M.A. 1988), stated that evidence of uncharged misconduct, introduced for the
first time in sentencing, is not admissible to the determination of a proper sentence
unless it also meets the requirements of R.C.M. 1001(b). 17

      The military judge admitted evidence of the accused’s voluntary absence as
evidence relating to 1) the accused’s potential for rehabilitation; and 2) evidence of
aggravating circumstances directly relating to the offense.

            a. Is Evidence of an Accused’s Voluntary Absence from Trial
           Admissible to Show the Accused’s Potential for Rehabilitation?

      The military judge found evidence of the accused’s voluntary absence was
admissible under R.C.M. 1001(b)(5) as evidence of the accused’ rehabilitative
potential. In so doing, the military judge reasonably relied on precedent from a
published summary disposition by the CAAF, precedent from this court, and a
persuasive published opinion by our sister court–all of which we discuss below.




(continued . . .)
court has specifically sanctioned the introduction of Department of the Army Form
4187 documenting an accused’s change in status from “present for duty” to “absent
without leave.” United States v. Denny, 28 M.J. 521, 525 (A.C.M.R. 1989).
Similarly, in United States v. Centers, NMCM 894326, 1991 CMR LEXIS 824
(N.M.C.M.R. 1991), the court found that service records of the accused documenting
his flight were properly admitted under R.C.M. 1001(b)(2); see also United States v.
Perry, 20 M.J. 1026 (A.C.M.R. 1985) (accused’s performance as a pretrial
confinement prisoner qualified as evidence of the character of his prior service and
was admissible as long as the military judge applied the balancing test of Mil. R.
Evid. 403); but see United States v. Fontenot, 29 M.J. 244, 245-48 (C.A.A.F. 1989)
(discussing when a document is a personal record made or maintained in accordance
with departmental regulations).
17
  An accused’s flight from trial may certainly be relevant to the determination of a
proper sentence as it at least reflects on the need for specific deterrence. However,
when evidence of an accused’s voluntary absence is admitted for the first time
during sentencing, on appeal the question is not only was the evidence admissible
under the Military Rules of Evidence. We must also determine whether the evidence
was admissible under the narrower aperture of R.C.M. 1001(b).


                                          26
HOFFMAN—ARMY 20140172

       Notwithstanding this authority, we discuss this issue in depth as none of these
cases directly address what would otherwise appear to be a dispositive issue.
Namely, the government’s presentation of evidence on rehabilitative potential is
limited to opinions concerning the accused’s previous performance as a service
member. R.C.M. 1001(b)(5)(A). Evidence of specific acts (such as fleeing trial)
would not appear to be admissible under the rule.

       According to the rule, the government may not admit evidence of specific
uncharged acts on direct examination to show an accused’s poor rehabilitative
potential. The scope of a witness’s opinion is “limited to whether the accused has
rehabilitative potential and to the magnitude or quality of any such potential.”
R.C.M. 1001(b)(5)(D). Indeed, as the CAAF has specifically stated “inquiry into
specific instances of conduct is not permitted on direct examination, but may be
made on cross-examination.” United States v. Horner, 22 M.J. 294, 295 (C.M.A.
1986). However, there appears to be a specific judge-made exception to this rule.

       In Chapman I, the trial judge stated, on the record, he specifically considered
the accused’s absence from trial as being “relevant to his remorse or lack thereof for
the offenses of which he has been convicted and as relevant to his lack of potential
for rehabilitation.” 20 M.J. at 718. On appeal, our sister court held evidence of
voluntary “absence is not specifically excluded from consideration by Rule 1001 and
is highly relevant to rehabilitative potential, particularly demonstrating lack of
remorse and unreliability.” The court went on to state:

             [T]he military judge or members, as the case may be,
             deserve the best possible information and the opportunity
             to consider the accused’s voluntary and unauthorized
             absence from trial. Caution is vital, however, when such
             absence is included in sentencing deliberations. It cannot
             be the basis for increased punishment but is strictly
             limited to a role in determining an accused’s rehabilitative
             potential.

Id. The court “perceive[d] no reason why such absence should not be a valid factor
to be considered in resolving the limited issue of an accused’s potential for
rehabilitation.” Id.

      Our superior court granted a petition for review of Chapman I on the issue of
“[w]hether the military judge may consider an accused’s voluntary and unauthorized
absence from trial in determining an appropriate sentence?” United States v.
Chapman, 21 M.J. 306 (C.M.A. 1985) (order). Our superior court then affirmed the
Navy Court in a summary disposition (with only two judges participating):



                                          27
HOFFMAN—ARMY 20140172

             On further consideration of the granted issue (21 M.J.
             306), we hold that the military judge properly considered
             appellant’s voluntary absence from trial in determining,
             for sentencing purposes, his prospects for rehabilitation
             and retention in the service. Cf. Roberts v. United States,
             445 U.S. 552, 558 [] (1980); United States v. Grayson,
             438 U.S. 41, [] (1978); United States v. Warren, 13 M.J.
             278, 286 (C.M.A.1982). Accordingly, it is ordered that
             the decision of the United States Navy-Marine Corps
             Court of Military Review (20 M.J. 717) is affirmed.

United States v. Chapman, 23 M.J. 226 (C.M.A. 1986) (Chapman II). The CAAF
appears to have explicitly sanctioned what the military judge did in the case at bar.
If the CAAF’s summary disposition in Chapman II is precedent, we are obligated to
follow it regardless of how we might otherwise read R.C.M. 1001(b). Thus we must
determine whether a summary disposition is binding precedent.

       For some time, it was an open question as to how much precedential weight
lower courts should give a summary disposition issued by the CAAF. In United
States v. Diaz, the court specifically declined to answer the question. 40 M.J. 335,
340 (C.A.A.F. 1994) (“we need not finally decide here the extent to which, in the
future, counsel may resort to summary dispositions . . . .”). However, in LRM v.
Kastenberg, the CAAF appears to adopt the Supreme Court practice “that ‘lower
courts are bound by summary decisions by’ the Supreme Court” 72 M.J. 364, 370
(C.A.A.F. 2013) (citing Hicks v. Miranda, 422 U.S. 332, 344-45 (1975)).

        Accordingly, it appears with regards to this one area of the law, the specific
act of a voluntary absence is admissible as evidence of an accused’s potential for
“rehabilitation and retention.” Indeed, following the CAAF’s decision in Chapman
II, our own published decision in Denney adopted the CAAF’s view that an
accused’s voluntary absence “can be considered for the limited purpose of
determining rehabilitative potential” as the “[v]oluntary absence of an accused from
trial is a unique form of uncharged misconduct.” Denney, 28 M.J. at 524, 525.

       As a result, regardless of how persuasive we might find appellant’s
interpretion of R.C.M. 1001(b)(5), we are obligated to follow our superior court’s
decision in Chapman II and our own opinion in Denney. Indeed, these precedents
are specifically cited in the Benchbook and have been relied on by military judges
for nearly thirty years. 18 Accordingly, governed by our understanding of Chapman

18
  Benchbook (30 Sep. 1996) Change 2, p. 140 (dated 15 Oct. 1999); Benchbook,
para. 2-7-23 (1 Apr. 2001 and 1 Jan. 2010).


                                          28
HOFFMAN—ARMY 20140172

II, we do not find error, let alone plain error, when the military judge admitted
evidence of the accused’s voluntary absence. However, to the extent the CAAF’s
opinion in Horner is controlling authority, we later will also address whether the
military judge plainly erred.

            b. Was Evidence of Appellant’s Voluntary Absence from Trial
                      Admissible as Evidence in Aggravation?

       The military judge admitted evidence of appellant’s absence as an
“aggravating circumstance[] directly relating to or resulting from the offenses.”
R.C.M. 1001(b)(4). If evidence of an accused’s voluntary absence does directly
relate to the offense, it is clearly admissible in sentencing under R.C.M. 1001(b)(4).
Here, we do not see the evidence actually admitted as meeting this criterion.

       As summarized above, the evidence of appellant’s voluntary absence was
limited to the testimony of Mr. Hutton, who testified that he had just seen appellant
“on the move.” While the obvious inference from Mr. Hutton’s testimony was
appellant had voluntarily absented himself from trial, it would be a stretch to say
this was evidence “in aggravation” directly relating to appellant’s sexual misconduct
offenses. Indeed, the only aggravation evidence introduced as a result of appellant’s
flight was that Mr. Hutton was asked to look after appellant’s dog.

        It is perhaps possible an accused’s flight from trial serves to aggravate the
harm caused by the accused’s underlying offenses. This is most likely to present
itself in the form of aggravated harm to a crime victim. In this case, however, no
such evidence was introduced.

                  4. The Military Judge’s Instructions to the Panel.

       As already discussed, there is no instruction in the Benchbook on how to
instruct the members when evidence of an accused’s absence has been admitted. 19
We have one concern with the instruction crafted by the military judge. 20



19
  Such an instruction may be appropriate and should be tailored to reflect whether
the evidence was admitted as an admission by conduct, uncharged misconduct, or
when the evidence is admitted for the first time during presentencing proceedings.
20
  As discussed above, we do not find Mr. Hutton’s testimony could be considered
evidence in aggravation directly relating to appellant’s offenses. Accordingly, it
was also error to instruct the panel they could consider it for this purpose.


                                           29
HOFFMAN—ARMY 20140172

       The instruction appeared to take the issue of whether the accused was
voluntarily absent away from the members. The first line of the instruction was
“[t]he voluntary absence of the accused from these proceedings is uncharged
misconduct.” (Emphasis added). The accused had, in fact, voluntarily absented
himself from the proceedings. And, the panel members had heard evidence from
which they could easily infer the accused’s absence was voluntary. Nevertheless,
short of meeting the requirements for judicial notice, see Mil. R. Evid. 201, whether
the accused was voluntarily absent was a matter for the factfinder. United States v.
Cook, 20 U.S.C.M.A. 504, 43 C.M.R. 344 (1971).

                                      5. Plain Error

       As appellant did not object to either the evidence or the instruction, he
forfeited the issue unless it amounted to plain error. R.C.M. 1001(f) and Mil. R.
Evid. 102(d). As previously discussed, to establish plain error, appellant must show:
1) an error was committed; 2) the error was plain, or clear, or obvious; and 3) the
error resulted in material prejudice to substantial rights. Paige, 67 M.J. at 449. We
do not find plain error.

      First, we do not believe the law governing the admissibility of evidence of an
accused’s voluntary absence in sentencing to have been clear. As the foregoing
discussion indicates, when evidence of an accused’s absence from trial is admissible
has been subject to different interpretations. Accordingly, any error in the
admission of such evidence was not plain or obvious error.

       Second, appellant has not met his burden of establishing prejudice. While we
find the military judge erred when he instructed the panel that the accused was
voluntarily absent, it was not a disputed fact at trial. No contrary evidence was
introduced. This was not a case where there was competing evidence and the
military judge erred by weighing in on one side or the other. As a result, while the
instruction was error, the error was harmless. C.f. United States v. Brown, 50 M.J.
262, 268 (C.A.A.F. 1999) (“The admission of this uncontradicted evidence clearly
marginalized the impact of the trial judge’s instruction . . . .”).

                         E. Trial Counsel’s Sentencing Argument

      Although not an assigned error, 21 there are several issues regarding the
sentencing argument by the trial counsel. Defense counsel did not object at trial.
Under the CAAF’s recent precedent, we find that appellant’s failure to object


21
     Appellant raised this issue in his Grostefon submission.


                                            30
HOFFMAN—ARMY 20140172

waived, not forfeited, any objection to the improper argument. Ahern, 76 M.J. at
197.

      The argument nonetheless remains concerning, and notwithstanding the
absence of an assigned error or finding of waiver, the issue merits comment.

                                  1. The Argument

      In discussing the length of an appropriate sentence, the trial counsel argued as
follows:

             . . . what’s it worth? How long? No child’s going to want
             to see their father go away in prison and die. No daughter
             would want that. No son would want that. But I’m
             confident when I tell you that they could not live with the
             knowledge that their father harmed anybody else. And if
             it’s a choice, an impossible choice for a child, between
             their father imprisoned for the rest of his life and their
             father getting out and harming somebody else, they would
             choose their father and life without parole in a prison.

(Emphasis added).

      This argument contains two significant problems, which we discuss below.

       At the conclusion of his argument, when asking for a sentence of life without
parole, the trial counsel stated:

             So, in conclusion, he took advantage of his position as a
             safe, protective respected position of people [sic]. And
             so, if you sentence him to a period of years, if you
             sentence him to life, then what happens potentially is he
             gets out, and what is he then? A safe protective class of
             persons. He’s a grandpa. You see, he might not have his
             grandkids with him, and the daughters said they’ll never,
             ever let their dad around their grandkids, but he can show
             some pictures to some people and say, “Hey, yeah, I’ve
             got grandkids too. I’ll take care of your kids. Not a
             problem. I’m just a nice old guy. Yeah, I was in the
             military before.” A military guy would never do anything
             bad, and then what happens? He’s shown no remorse.
             He’s shown no control. He can’t control himself. He
             can’t, and he doesn’t want to. I ask that you sentence him,
             as hard as it is, to life without parole.
                                         31
HOFFMAN—ARMY 20140172

                                         2. Law

       Improper argument involves a question of law that this court reviews de novo.
United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011). “The legal test for
improper argument is whether the argument was erroneous and whether it materially
prejudiced the substantial rights of the accused.” United States v. Baer, 53 M.J.
235, 237 (C.A.A.F. 2000). Where improper argument occurs during the sentencing
portion of the trial, we determine whether or not we can be “confident that [the
appellant] was sentenced on the basis of the evidence alone.” United States v.
Halpin, 71 M.J. 477, 480 (C.A.A.F. 2013) (brackets in original) (internal quotation
marks omitted).

       The “trial counsel is at liberty to strike hard, but not foul, blows.” United
States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (citation and quotation marks
omitted). “It is error for trial counsel to make arguments that ‘unduly . . . inflame
the passions or prejudices of the court members.’” Id. (quoting United States v.
Clifton, 15 M.J. 26, 30 (C.A.A.F. 1983)). The trial counsel also must not inject
matters that are not relevant into argument. Id. (citing United States v. Fletcher, 62
M.J. 175, 180 (C.A.A.F. 2005); R.C.M. 919(b) discussion). Nor can the trial
counsel ask court members to place themselves in the shoes of the victim or a near
relative. Baer, 53 M.J. at 237-38.

       However, and critically here, R.C.M. 1001(g), provides: “Failure to object to
improper argument before the military judge begins to instruct the members on
sentencing shall constitute waiver of the objection.” (Emphasis added). Under the
CAAF’s recent decision in Ahern, “waiver” in this context means waiver, not
forfeiture. 76 M.J. at 197.

      In Ahern, the CAAF determined when the Rules for Court-Martial mean
“waiver” vice “forfeiture.” Id. When the rule “plainly states” that a claim is
“waived” absent an objection, then it is waived. When the rule states “waived
absent plain error” than the claim is only forfeited and we test for plain error. Id. at
*8-9.

      In other words, we are to apply the plain language of the rule. When the rule
says “waiver” without mentioning a plain error analysis it means exactly what it
says. As a general rule, we are required to give the Rules for Court-Martial their
plain meaning unless they clearly contradict an applicable statute (such as the
UCMJ) or the Constitution.

       While Ahern involved the interpretation of Mil. R. Evid. 304, the logic of the
opinion applies equally to R.C.M. 1001(g). Both rules “unambiguously provide[]
that any claim arising under [the rule] is waived absent an objection.” Id. at *9.


                                           32
HOFFMAN—ARMY 20140172

       Ahern involved a question of statutory interpretation. We are required to
follow the President’s promulgation of the Rules for Courts-Martial unless they
either violate the UCMJ or the Constitution. When the President says the failure to
object to an improper sentencing argument “waives” any error (with no provision for
plain error), under Ahern that is the rule.

      Claims of error in a sentencing argument are waived if not objected to.
R.C.M. 1001(g). There is no “absent plain error” exception to the rule. While the
CAAF has in the past conducted a plain error analysis on unpreserved sentencing
argument errors, applying the court’s recent decision in Ahern compels us to find
waiver in this case. To hold otherwise would require that we find the same words in
the governing regulations to have the opposite meaning. Compare Mil. R. Evid.
304; R.C.M. 919(c); R.C.M. 920(f) with R.C.M. 1001(g).

      Indeed, Judge Ryan’s dissenting opinion in Marsh foreshadows her later
unanimous opinion in Ahern. Marsh, 70 M.J. at 108, n.1 (Ryan, J. concurring in part
and dissenting in part). In Marsh, she stated “treating failure to object to improper
presentencing argument as waiver rather than forfeiture appears compelled by
R.C.M. 1001(g)” but in Marsh “no one ha[d] requested that we revisit case law to
the contrary.” Id.

       Notwithstanding appellant’s waiver, under our unique Article 66(c), UCMJ,
authority we may “notice” the issue and ignore the waiver. See UCMJ art. 66(c). To
determine whether noticing the error is appropriate, we must first review the entire
record. United States v. Schweitzer, 68 M.J. 133, 139 (C.A.A.F. 2009) (“the court
below was required to determine what findings and sentence ‘should be approved,’
based on all the facts and circumstances reflected in the record”). See also United
States v. Chin, 75 M.J. 220 (C.A.A.F. 2016); United States v. Frey, 73 M.J. 245
(C.A.A.F. 2013) (counsel only objected to one of multiple improper arguments and
CAAF did not find prejudicial error). We are not convinced in this case to notice
the waived error. Nor, assuming Ahern is not controlling, are we convinced the
argument amounted to plain error.

      Notably, unlike the case today, the error in Frey was at least partially
preserved. The defense counsel objected to the improper argument, and the military
judge overruled the objection and did not adequately issue a corrective instruction.
Thus, appellant faces a higher burden than the unsuccessful appellant in Frey.

       Additionally, in Frey the trial counsel argued the dangers of recidivism when
the accused was guilty of assaulting only one victim on one occasion. Id. at 247.
Here, by contrast, appellant was convicted of multiple child sex offenses against
several victims.



                                         33
HOFFMAN—ARMY 20140172

                                      3. Analysis

      Notwithstanding that we find appellant to have waived the issue, we have
several concerns with the trial counsel’s arguments.

       First, the trial counsel vouched for appellant’s victims when he argued “I’m
confident when I tell you that they could not live with the knowledge that their
father harmed anyone else.” “[I]mproper vouching occurs when the trial counsel
places the prestige of the government behind a witness through personal assurances
of the witness’s veracity.” Fletcher, 62 M.J. at 180 (internal citations omitted).
That is, the trial counsel used his position and authority to tell the panel members
what testimony from the victims might have yielded.

       Second, the vouched-for testimony was itself improper as it was a
recommendation for a specific sentence. The trial counsel argued that the victims,
given the hard choice of determining an appropriate sentence for appellant, “would
choose . . . life without parole in a prison.” “The question of appropriateness of
punishment is one which must be decided by the court-martial; it cannot be usurped
by a witness.” 22 United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989). Thus, for
the same reasons we do not permit an opinion of guilt or innocence, or of
“truthfulness” or “untruthfulness” of witnesses, we do not allow opinions as to
appropriate sentences.” Id. If it is error to elicit from a witness a specific sentence
recommendation, it is certainly error for the trial counsel to argue that the members
should trust him that the victims would want a specific sentence.

       Our third concern is whether the trial counsel’s arguments improperly
referenced the future dangerousness of appellant. However, here, the members were
permissibly instructed that “[o]ur society recognizes five principal reasons for the
sentence of those who violate the law,” including “[p]rotection of society from the


22
  This case was tried prior to the effective date of Article 6b, UCMJ, which provides
victims of crimes the right to be heard in sentencing. Had the case been tried later,
the ability of a crime victim to make a sentence recommendation would be unclear.
Compare UCMJ art. 6b(a)(4)(B) with 18 U.S.C. § 3771(a)(4); 150 CONG. REC.
S10910-01 (Oct 9, 2004) (“When a victim invokes this right during plea and
sentencing proceedings, it is intended that he or she be allowed to provide all three
types of victim impact: the character of the victim, the impact of the crime on the
victim, the victims’ family and the community, and sentencing recommendations.”)
(remarks of Sen. Kyl on 18 U.S.C. § 3771) (emphasis added); but see R.C.M. 1001A
discussion (right to be heard in sentencing does not include the right to be heard on
the sentence).


                                           34
HOFFMAN—ARMY 20140172

wrongdoer” and “deterrence of the wrongdoer.” Benchbook, para. 2-5-21; Ohrt, 28
M.J. at 305.

      Whether trial counsel may argue future dangerousness at sentencing may be
unclear. In Marsh, the CAAF stated the following:

             While this court has not previously examined whether a
             prosecutor can properly ask court members to place
             themselves in the shoes of potential future victims, the
             United States Court of Appeals for the Sixth Circuit has
             addressed this issue. In Hodge v. Hurley, 426 F.3d 368,
             384 (6th Cir. 2005), that court held that a suggestion that
             the jury put itself in the place of someone who may run
             into the defendant on the street is impermissible argument.
             This is because trial counsel must not “fan the flames of
             the jurors’ fears by predicting that if they do not convict .
             . . some . . . calamity will consume their community.”
             Bedford v. Collins, 567 F.3d 225, 234 (6th Cir. 2009)

70 M.J. at 106 (emphasis added). However, we do not read Marsh as prohibiting all
argument on an accused’s future dangerousness. First, the Sixth Circuit cases that
Marsh references are cases where the government introduced future dangerousness
during findings. The future dangerousness of a defendant is logically irrelevant to
the question of whether he committed past conduct. Whereas the future
dangerousness of a defendant is highly relevant to determining a proper sentence.
The degree to which society needs “protection” from an accused is significantly
correlated with the danger that accused will present in the future.

       Nonetheless we remain concerned that the trial counsel’s argument
impermissibly inflamed the passions of the panel when he implied that if the panel
did not sentence appellant to life without the possibility of parole, appellant would
sexually abuse additional children. Fletcher, 62 M.J. at 183 (citing Clifton, 15 M.J.
at 30 and United States v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003)).

        While the sentencing argument in this case warrants this analysis, we cannot
find that appellant has shown he was prejudiced by the argument, and therefore leave
appellant’s waiver intact, or alternatively, do not find plain error. First, appellant’s
sentence while severe, is not disproportionate in light of the gravity of his offenses.
Second, the trial counsel’s entire argument was geared towards convincing the panel
to impose a sentence that precluded parole. The panel was not convinced by the trial
counsel’s argument and appellant will be eligible for parole. Third, this case strikes
us as similar to our superior court’s decision in Frey, which the CAAF affirmed as
noted above, notwithstanding that the error discussed in that case had been preserved
at trial.
                                          35
HOFFMAN—ARMY 20140172

                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

    Senior Judge MULLIGAN and Judge FEBBO concur.

                                  FOR THE
                                  FOR THE COURT:
                                          COURT:




                                  MALCOLM
                                  MALCOLM H.  H. SQUIRES,
                                                 SQUIRES, JR.
                                                          JR.
                                  Clerk of Court
                                  Clerk of Court




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