                             IN THE CASE OF


                        UNITED STATES, Appellee

                                    v.

                       David J. KAISER, Sergeant
                          U.S. Army, Appellant

                             No. 02-0609/AR
                     Crim. App. No. ARMY 9900485

       United States Court of Appeals for the Armed Forces

                       Argued December 15, 2002

                        Decided March 14, 2003

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

                                 Counsel

     For Appellant: Captain Terri J. Erisman (argued); Colonel
        Robert T. Teetsel, Lieutenant Colonel E. Allen Chandler,
        Jr. and Major Imogene M. Jamison (on brief); Colonel
        Adele H. Odegard.

     For Appellee: Captain Janine P. Felsman (argued);
        Lieutenant Colonel Margaret B. Baines, Lieutenant
        Colonel Lauren B. Leeker and Major Jennifer H. McGee (on
        brief); Major Paul T. Cygnarowicz.

     Military Judges:     Stephen V. Saynisch and Nancy A. Higgins




  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Kaiser, 02-0609/AR


     Judge ERDMANN delivered the opinion of the Court.

     Pursuant to his pleas, Appellant was convicted of two

specifications of violating a lawful order and two

specifications of adultery in violation of Articles 92 and 134,

Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C.

§§ 892, 934 (2002).   Contrary to his pleas, a general court-

martial composed of officer and enlisted members convicted

Appellant of an additional specification of violating a lawful

order and an additional specification of adultery.   The adjudged

and approved sentence provided for a bad-conduct discharge,

confinement for forty-five (45) days, forfeiture of all pay and

allowances, and reduction to Private E1.   With the exception of

certain modifications to the forfeiture not relevant to this

appeal, the Army Court of Criminal Appeals affirmed the findings

and sentence in a memorandum opinion.

     On Appellant’s petition, we granted review of the following

issue:

     WHETHER THE MILITARY JUDGE ERRED BY INFORMING THE PANEL
     MEMBERS THAT APPELLANT HAD PLEADED GUILTY TO SOME OFFENSES
     BUT NOT OTHERS

For the reasons set forth below, we conclude that the military

judge erred and reverse.

                               FACTS

   Appellant was a twenty-four year-old married sergeant with

approximately six years of service and, at all times relevant to


                                 2
United States v. Kaiser, 02-0609/AR


the charges and specifications in this case, was assigned to the

Defense Language Institute Foreign Language Center at the

Presidio of Monterey, California.    In his capacity as a training

noncommissioned officer, Appellant was tasked with establishing

training schedules and events for students.

   In June of 1996, the Commander of the Defense Language

Institute issued a policy memorandum on relationships with

students, prohibiting staff members involved in training or

evaluation from forming nonprofessional relationships with

students.   Nonprofessional relationships with students were

defined as including, but not being limited to, dating,

drinking, gambling, borrowing or loaning money and engaging in

sexual activities.

     Appellant was tried in May 1999 for alleged violations of:

Article 92 (four specifications) for violating the above-

referenced command policy by engaging in nonprofessional

relationships with Private First Class (PFC) AC, Private (PVT)

SG, PFC MB and Private E-2 (PV2) CA; Article 93, UCMJ, 10 U.S.C.

§ 893 (2002) (three specifications) for making offensive and

sexual overtures to PFC AC and PFC NW; Article 125, UCMJ, 10

U.S.C. § 925 (2002) (two specifications) for consensual sodomy




                                 3
United States v. Kaiser, 02-0609/AR


with PV2 CA;1 and Article 134 (four specifications) for indecent

assault upon PFC AC and adultery with PFC AC, PVT E-2 CA and

Specialist CB.

      At the commencement of his trial, Appellant entered mixed

pleas with respect to the charges.         He pleaded guilty to two of

the four Article 92 specifications (PFC AC and PFC CB) and two

of the three adultery specifications under Article 134 (PFC AC

and PFC CB).    He pleaded not guilty to the remaining charges and

specifications.

      Following her providence inquiry and entry of the guilty

findings, the military judge engaged in the following exchange

with counsel:

      MJ: Please be seated [The accused and his counsel did as
      directed.] Captain Bogie, I believe that we have the
      members called for at 0915?

      TC:   That is correct, Your Honor.

      MJ: Okay. Let's take up some administrative matters right
      now. Do we have an extra copy of the flyer that we can
      have marked as an appellate exhibit and has a copy of that
      been provided to the defense?

      DC: No, Your Honor.       The defense doesn't even have a copy
      of the flyer.

      MJ: Why don't we just go ahead and use my copy here.
      Captain Salerno, please approach. [The defense counsel did
      as directed.] Take a moment to review that. [The military
      judge hands the defense counsel a copy of the flyer.]


1
  Private E-2 CA is identified as "PVT E-2 [CA]" under Specification 4 of
Charge I (Violation of Order) and Specification 3 of Charge IV (Adultery),
but is also identified as "PFC [CA]" in Specifications 1 and 2 of Charge III
(Sodomy).


                                      4
United States v. Kaiser, 02-0609/AR


     DC: Your Honor, the copy of the flyer that you just
     provided to me still contains a list of the specifications
     to which Sergeant Kaiser just pled guilty. Is it your --
     is it that --

     MJ: If you take a look at Page 46 of DA Pam 27-9, you'll
     note that the members are informed that that has occurred.
     That's why those specifications remain on it. Okay?

     DC: That's fine.

     MJ:   Captain Salerno, any objection?

     DC:   No objection, Your Honor.

     MJ: Okay. Let's go ahead and have a copy of that marked
     as an appellate exhibit. We can do that on the break.
     Just make sure that goes into the record. . . .

Following preliminary instructions and voir dire of the panel,

the military judge advised the members as follows:

     MJ: Please be seated. Court members, at an earlier
     session, the accused pled guilty to several specifications.
     I'd like you to take out your flyer, so that you can just
     place a mark next to those. He pled guilty to
     Specification 2 of Charge I and Specification -- I'm sorry,
     Specification 1 of Charge I and Specification 3 of Charge
     I; if you'd just place a small mark next to those. And
     then if you'd go down to Charge IV, he pled guilty to
     Specification 2 of that Charge and guilty to Specification
     4 of that Charge. And he pled not guilty to all other
     specifications and charges. You are advised that findings
     by the court members will not be required on those
     specifications to which the accused has already been found
     guilty pursuant to his plea. I inquired into the
     providence of his plea of guilty to those specifications
     and found his plea to be provident, accepted it, and
     entered findings of guilty on those specifications that I
     have just gone over with you. Findings will be required,
     however, as to the charges and specifications to which the
     accused has pled not guilty. Does any member have a
     question?

           [The members indicated a negative response.]



                                 5
United States v. Kaiser, 02-0609/AR


            Are both sides ready to proceed?

      TC:   Yes, Your Honor.

      DC:   Yes, Your Honor.

      The court-martial proceeded from that point, with Appellant

electing to testify in his defense.          The members found Appellant

guilty of an Article 92 violation and an Article 134 violation

with PVT E-2 CA.     He was found not guilty of an Article 92

violation with respect to PVT SG, not guilty of the Article 93

specifications involving PFC AC and PFC NW, not guilty of the

Article 125 specifications involving PVT E-2 CA and not guilty of

the Article 134 indecent assault specification involving PFC AC.

                                 DISCUSSION

      The military judge openly advised the court members at the

commencement of the trial that Appellant had pleaded guilty to

some of the charges, but not guilty to others.           When defense

counsel raised a question about the inclusion on the flyer of

the specifications to which Appellant had pleaded guilty, the

military judge advised him that those specifications remained

because the Military Judges’ Benchbook required that the members

be informed of the guilty pleas.          See Military Judges’

Benchbook: Legal Services, Dep’t of the Army, Pamphlet 27-9,

Military Judges’ Benchbook 28, 46 (1996) [hereinafter

Benchbook]2.


2
  Republished as Military Judges’ Benchbook: Legal Services, Dep’t of the
Army, Pamphlet 27-9, Military Judges’ Benchbook 29, 47 (2001) [hereinafter


                                      6
United States v. Kaiser, 02-0609/AR


     The Benchbook does not contain such a requirement. The

Benchbook provides the following instruction after a plea is

accepted:

            The MJ should not inform the court members of plea and
            findings of guilty prior to presentation of the
            evidence on another specification to which the accused
            pled not guilty, unless the accused requests it or the
            guilty plea was to an LIO [Lessor Included Offense]
            and the prosecution intends to prove the greater
            offense. Unless one of these two exceptions exist,
            the flyer should not have any specifications/charges
            which reflect provident guilty pleas if other offenses
            are being contested.

See Benchbook at 29.

     Contrary to the military judge’s statement that the

Benchbook directs notification of the court members of guilty

pleas as a matter of course, such notification is directed only

when specifically requested by the accused.          In the absence of a

specific request by the accused or circumstances involving an

LIO, "the flyer should not have any specifications/charges which

reflect provident guilty pleas if other offenses are being

contested."    Id.

     The provisions of the Benchbook are consistent with and

reflect the requirements of Rule for Courts-Martial 913(a)

[hereinafter R.C.M.]:

     (a) Preliminary Instructions. The military judge may give
     such preliminary instructions as may be appropriate. If
     mixed pleas have been entered, the military judge should
     ordinarily defer informing the members of the offenses to

Benchbook]. The referenced provisions are identical to those in effect at
the time of trial.


                                     7
United States v. Kaiser, 02-0609/AR


     which the accused pleaded guilty until after the findings
     on the remaining contested offenses have been entered.

This same directive to ordinarily defer informing members of

guilty pleas in mixed plea cases is also found in the discussion

under R.C.M. 910(g), which relates to the entry of findings.

Finally, the discussion under R.C.M. 913(a) makes it clear that

"[e]xceptions to the rule requiring the military judge to defer

informing the members of an accused's prior pleas of guilty

include cases in which the accused has specifically requested,

on the record, that the military judge instruct the members of

the prior pleas of guilty" and cases involving guilty pleas to

an LIO.

     The current rule is based in part on this Court’s decision

in United States v. Rivera, 23 M.J. 89 (C.M.A. 1986), where we

held that the military judge erred in advising the members at

the outset of the trial that the accused had earlier pleaded

guilty to certain of the charged offenses.   See also United

States v. Smith, 23 M.J. 118 (C.M.A. 1986)(in the usual case, no

lawful purpose is served by informing members prior to findings

about any charges to which an accused has pleaded guilty);

United States v. Davis, 26 M.J. 445 (C.M.A. 1988)

(the practice of informing members of guilty pleas provides a

fertile area for assertion of error on appeal and can serve no

useful purpose).



                                8
United States v. Kaiser, 02-0609/AR


      The law in this area is clear -- in a mixed plea case, in

the absence of a specific request made by the accused on the

record, members of a court-martial should not be informed of any

prior pleas of guilty until after findings on the remaining

contested offenses are made.        This rule is long-standing and

embodied in the Benchbook, R.C.M. 910(g), R.C.M. 913(a) and our

decisions in Smith, Rivera, and Davis.

      The military judge therefore erred in the present case by

providing a flyer to the panel that contained the specifications

to which Appellant had pleaded guilty.          There was no specific

request made by Appellant that such advance notification be

given to the members.3

      As noted in Davis, such an error does not always mandate a

reversal:

      Where, however, admission of evidence does not violate the
      accused’s constitutional rights, reversal is not required
      if we determine that the error was not prejudicial, i.e.,
      if the finder of fact was not influenced by it or if it had
      only a slight effect on resolution of the case. United
      States v. Barnes, 8 M.J. 115 (C.M.A. 1979).

26 M.J. at 449-50 (footnote omitted).         As we further

acknowledged in Davis:      “Error of constitutional dimensions

requires either automatic reversal or an inquiry into whether,


3
  The defense counsel did point out to the military judge that the flyer
contained the guilty pleas, but he was cut off with a firm but clearly
erroneous assertion that such a disclosure was required by the Benchbook.
Given those circumstances and the nature of the military judge's error (i.e.,
failure to secure an affirmative request from the accused, on the record, for
her actions), we conclude that the error is preserved for our review.


                                      9
United States v. Kaiser, 02-0609/AR


beyond a reasonable doubt, the error did not contribute to the

defendant’s conviction or sentence.”    26 M.J. at 449 n.4 (citing

Chapman v. California, 386 U.S. 18 (1967); United States V.

Moore, 1 M.J. 390 (C.M.A. 1976)).

     The error here directly implicates the presumption of

innocence and specifically the effect that advance notification

to members of guilty pleas in a mixed plea case has on that

presumption.    The presumption of innocence is a longstanding

feature of both military and civilian law.    It is a critical

part of our tradition of justice and deeply imbedded in our

culture as well as our systems of justice.    United States v.

Washington, 57 M.J. 394, 402 (C.A.A.F. 2002)(Baker, J.,

concurring).

     In strict legal terms, the presumption of innocence flows

from the fundamental right to a fair trial:    “The right to a

fair trial is a fundamental liberty secured by the Fourteenth

Amendment.    Drope v. Missouri, 420 U.S. 162, 172 (1975).   The

presumption of innocence, although not articulated in the

Constitution, is a basic component of a fair trial under our

system of criminal justice.”    Estelle v. Williams, 425 U.S. 501,

503 (1976).    As reflected in the language of Article 51(c)(1),

UCMJ, 10 U.S.C. § 851(c)(1) (2002), the presumption of innocence

is directly related to the requirement that guilt be established

by legal and competent evidence beyond a reasonable doubt.     Put


                                 10
United States v. Kaiser, 02-0609/AR


another way, the presumption of innocence embodies the principle

that “one accused of a crime is entitled to have his guilt or

innocence determined solely on the basis of the evidence

introduced at trial, and not on grounds of official suspicion,

indictment, continued custody, or other circumstances not

adduced as proof at trial.”       Taylor v. Kentucky, 436 U.S. 478,

485 (1978).

      Appellant was entitled to a presumption of innocence

throughout his trial.      He had a right to have his guilt or

innocence of the contested specifications determined by the

members solely on the basis of legal and competent evidence

introduced at trial and not on other grounds, i.e., his pleas of

guilty to other similar specifications.          Id.; Article 51(c)(1).

      In this case, the panel was handed a flyer indicating that

Appellant had been charged with thirteen separate specifications

of criminal conduct and was then told that Appellant had already

pleaded guilty to some of the specifications.           They were not

advised at that time of the legal effect of those guilty pleas,

but instead heard trial counsel intimate that they might serve

as a basis for "inferring" something.4



4
  Trial counsel made reference to the guilty pleas in his opening statement,
initially asking the members to “separate that from [their] mind[s]” and
indicating that the government was “proving different charges.” However,
trial counsel went on to state: “[you] may be able to make some inferences,
but the fact that [Appellant] pled guilty to those does not alone prove the
remainder of the charges.”


                                     11
United States v. Kaiser, 02-0609/AR


     The circumstances under which the members were advised of

Appellant's guilty pleas formed a part of the "filter" through

which they viewed the evidence presented at trial and posed a

heightened risk that the members felt invited, consciously or

subconsciously, to draw an impermissible inference from

Appellant's guilty pleas.   Cf. United States v. Riley, 47 M.J.

276, 280 (C.A.A.F. 1997)(discussing effect of impermissible

comments at outset of trial on right to remain silent).

     Finally, we note that Appellant was found not guilty of all

of the "dissimilar" offenses (i.e., the maltreatment, indecent

assault and consensual sodomy specifications), but guilty of the

"similar" specifications (i.e., violation of a lawful order and

adultery).

     The Government has suggested that any error here is

harmless, as the rules of evidence would have permitted

introduction of evidence of the misconduct underlying the guilty

pleas, independent of any notification to the members of the




                                12
United States v. Kaiser, 02-0609/AR


actual pleas themselves.      See Rivera, 23 M.J. at 96 (discussing

potential admissibility of such evidence under Military Rule of

Evidence 404(b) and under cross-examination).          While the rules

of evidence may well allow for that possibility, we decline to

speculate as whether or in what manner such evidence might have

been brought to the attention of the members.

     Based on our review of the record and circumstances present

in this case, we conclude that the military judge's decision to

advise the members that Appellant had pleaded guilty to some

offenses but not others, in the absence of any specific request

to that effect made by Appellant on the record, was not harmless

error.5

                                CONCLUSION

     Accordingly, the decision of the Army Court of Criminal

Appeals is reversed and the findings of guilty on Charge I,

Specification 4 and Charge IV, Specification 3 are set aside.

The sentence is set aside.       The record of trial is returned to

the Judge Advocate General for remand to the Court of Criminal

Appeals.   That court may dismiss the specifications and reassess

the sentence or it may order a rehearing.




5
  We make no determination as to whether the error here is constitutional or
non-constitutional in nature. We hold simply that the error was not harmless
under either standard. See United States v. Alameda, 57 M.J. 190, 199-200
(C.A.A.F. 2002) (comparing standards).


                                     13
United States v. Kaiser, No. 02-0609/AR


     CRAWFORD, Chief Judge (dissenting):

     Rule for Courts-Martial 913(a) [hereinafter R.C.M.]

provides the following guidance regarding preliminary

instructions: “The military judge may give such preliminary

instructions as may be appropriate.   If mixed pleas have

been entered, the military judge should ordinarily defer

informing the members of the offenses to which the accused

pleaded guilty until after the findings on the remaining

contested offenses have been entered.”     The nonbinding

Discussion following the Rule adds:

          Exceptions to the rule requiring the military
          judge to defer informing the members of an
          accused’s prior pleas of guilty include cases in
          which the accused has specifically requested, on
          the record, that the military judge instruct the
          members of the prior pleas of guilty and cases in
          which a plea of guilty was to a lesser included
          offense within the contested offense charged in
          the specification.

R.C.M. 913(a) discussion.   The Majority is correct that the

Benchbook reflects the content of the discussion, and that

the military judge misinformed counsel regarding the

guidance contained in the Benchbook’s advice.     See Military

Judges’ Benchbook: Legal Services, Dep’t of the Army,

Pamphlet 27-9, Military Judges’ Benchbook, 29, 47

(2001)[hereinafter Benchbook]

     Nevertheless, the language of R.C.M. 913(a) is clear

that to “defer informing the members of the offenses to
which the accused pleaded guilty” is what the judge

“ordinarily” should do; hence, the Discussion’s mention of

two situations “include[d]” among exceptions to the rule.

The case at hand is precisely one more exception.    In

short, the judge’s authorization of the flyer permitted the

members to consider what was otherwise admissible evidence

under Military Rule of Evidence 803(22) and 404(b)

[hereinafter M.R.E.].

     Furthermore, in failing to object to the flyer’s

content when the opportunity arose at trial, Appellant

waived any post-trial objection to the flyer.   Even

assuming that the military judge erred, the error was not

“plain” to the extent that this Court should reverse the

decision below.

     For these reasons, discussed at length below, I would

affirm the decision of the lower court.

         The Guilty Pleas Were Admissible Evidence

     First, Appellant’s guilty pleas were admissible under

M.R.E. 803(22).   M.R.E. 803 lists the exceptions to the

hearsay rule that are not contingent upon a declarant’s

availability.   Included among this list is M.R.E. 803(22),

pertaining to judgments of prior convictions: “Evidence of

a final judgment, entered after a trial or upon a plea of

guilty . . . adjudging a person guilty of a crime


                              2
punishable by death, dishonorable discharge, or

imprisonment in excess of one year, to prove any fact

essential to sustain the judgment . . . ” is admissible.

R.C.M. 910(g) allows that “[f]indings based on a plea of

guilty may be entered immediately upon acceptance of the

plea at an Article 39(a) session.”    Pursuant to this rule,

the military judge noted to Appellant that “[o]n your plea

alone and without receiving any evidence, this court can

find you guilty of the offenses to which you have pled

guilty.”    After extensive questioning the judge determined

Appellant’s pleas to be provident.    The guilty pleas listed

on the flyer were therefore admissible under this rule, as

evidence of a final judgment entered upon a plea of guilty.

     Second, Appellant’s admissions during the providency

inquiry rendered the guilty pleas admissible under M.R.E.

404(b).    This rule addresses the potential prejudice that

could result from members’ knowledge of other crimes

committed, or allegedly committed, by the accused.    M.R.E.

404(b) reads: “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order

to show action in conformity therewith.”    The motive behind

this rule is the same motive that generates the military’s

efforts “to assure that [in trials by courts-martial] an

accused will not be found guilty of one offense merely


                               3
because he is guilty of other crimes.”    United States v.

Rivera, 23 M.J.   89, 95 (C.M.A. 1986).   This is precisely

why Appellant claims that he has been prejudiced by the

members’ consideration of his guilty pleas.

     Yet, M.R.E. 404(b) provides a significant exception:

Such otherwise inadmissible evidence may be admissible “for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence

of mistake or accident.”   Appellant’s admissions during the

providency inquiry concerning the four uncontested

specifications were so closely factually intertwined with

all of the specifications that each admission and

corresponding guilty plea was illustrative of Appellant’s

motive, opportunity, and intent regarding the contested

specifications.

     During the providency inquiry in this case the

military judge meticulously narrated the facts related to

each uncontested offense and then asked Appellant to

confirm that the elements of each offense accurately

described what Appellant had done.   In replying to the

judge, Appellant described having consensual sex in his

barracks room with Private First Class (PFC) AC, a woman

who was in training at the Presidio, allowing another

woman, PFC M.B., to remain in his bed unconscious from


                              4
extreme intoxication, and having sex with a Specialist

(SP4) CB, a Presidio student, in her barracks room after

meeting her at a local bar.

     The information gleaned from these admissions tracked

the essential elements of all of the specifications.      The

plea admissions involved the same type of women (trainees),

the same type of acts, and the same general sexual behavior

as the contested charges alleged.    The specifications

concerned a total of six women who had contact with

Appellant between December 1997 and July 1998, and included

charges of fraternization, maltreatment, sodomy, indecent

acts, and adultery.    The fraternization charge under

Article 92 addresses the failure to obey an order or

regulation, in this case a regulation prohibiting

nonprofessional relationships with trainees.    See Article

92, Uniform Code of Military Justice [hereinafter UCMJ], 10

U.S.C. § 892 (2002).    The Article 93 maltreatment charge in

pertinent part punishes sexual harassment, which includes

“deliberate or repeated offensive comments or gestures of a

sexual nature.”   Article 93, UCMJ, 10 U.S.C. § 893 (2002).

The sodomy charge under Article 125 prohibits “unnatural

carnal copulation.”    Article 125, UCMJ, 10 U.S.C. § 925

(2002).   Finally, the Article 134 charge of indecent acts

and adultery alleges appellant’s behavior to have been


                               5
contrary to good order and discipline.       See Article 134,

UCMJ, 10 U.S.C. § 934 (2002).       The essential elements of

these charges, the type of behavior they punish, were

clearly the essential elements of Appellant’s guilty pleas

and corresponding providency admissions.       The guilty pleas

were therefore indicative of Appellant’s motive,

opportunity, intent, preparation, and/or plan regarding the

contested specifications, and as such were admissible under

M.R.E. 404(b).1

     In sum, although the judge may have misconstrued the

Benchbook, she did so in the context of circumstances

exceptional to the “ordinary” parameters of R.C.M. 913(a),

rightly permitting the members to consider what would

otherwise have been admissible evidence under M.R.E.

803(22) and 404(b).

           Appellant Waived Objection to the Flyer

     R.C.M. 905(e) states that “objections . . . must be

raised before the court-martial is adjourned for that case

and . . . failure to do so shall constitute waiver.”       The

purpose of this rule is “to eliminate the expense to the


1
  In the same vein, this Court applied the underlying principle
of Military Rule of Evidence 404(b) to its analysis of whether a
military judge committed prejudicial error by informing the
members prior to a contested trial of the offenses to which the
accused pleaded guilty. United States v. Smith, 23 M.J. 118, 121
(C.M.A. 1986).


                                6
parties and the public of rehearing an issue that could

have been dealt with by a timely objection or motion at

trial.”    United States v. Huffman, 40 M.J. 225, 229 (C.M.A.

1994)(Crawford, J., dissenting in part and concurring in

the result).   In the present case, defense counsel waived

any objection to informing the members about the previous

guilty pleas when he stated “that’s fine” and “no

objection” after the military judge’s erroneous summary of

the Benchbook.   The judge gave defense counsel the

opportunity to debate the legality of the flyer’s content,

yet counsel had nothing to say.    This failure to argue,

coupled with counsel’s explicit assertion that he had “no

objection,” constitutes waiver, pure and simple.    Absent

plain error, the issue is therefore not suited for appeal.

     Furthermore, throughout the court-martial, defense

counsel actively put Appellant’s guilty pleas before the

members.    During his opening statement, defense counsel

remarked:

            [The Accused] has an absolute right not to
            say anything. That’s not the kind of
            soldier [he] is. He came forward this
            morning and said, “I’ve done wrong, Your
            Honor. I’m guilty of these offenses. I’m
            going to tell you about it.” And he did.
            But, I can’t tell you about these other
            things for one simple reason: because they
            did not happen. I can’t tell you about
            something that did not happen.



                               7
In addition, defense counsel repeatedly asked witnesses

whether Appellant’s guilty pleas had any bearing on the

witnesses’ opinion of Appellant.   Finally, in his closing

argument defense counsel characterized Appellant’s guilty

pleas as acts which “happened off duty hours in the privacy

of his barracks room” and, in so doing, reiterated

Appellant’s guilty pleas.   Thus, not only did defense

counsel fail to dispute the flyer’s inclusion of all

charges when the opportunity was presented to him, but he

also highlighted Appellant’s guilty pleas throughout the

court-martial.

     In sum, by failing to formally object to the flyer

when given the opportunity at trial, and in repeatedly

addressing the guilty pleas on his own initiative during

the court-martial, defense counsel waived any post-trial

objection to the flyer.

                   There was no Plain Error

     “If an error is waived, further consideration of its

effect is simply estopped unless it qualifies as ‘plain

error’ . . . .”   United States v. Deachin, 22 M.J. 611, 614

(A.C.M.R. 1986)(citing United States v. Tyler, 17 M.J. 381,

385-86 (C.M.A. 1984)); see also United States v. Causey, 37

M.J. 308, 311 (C.M.A. 1993).   The Supreme Court in United

States v. Olano, 507 U.S. 725 (1993), and Johnson v. United


                               8
States, 520 U.S. 461 (1997), established a four-prong test

to detect plain error.   To remedy an error not raised at

trial an appellate court must find (1) error, (2) that is

plain, (3) that affects substantial rights, and that (4)

seriously affects the fairness, integrity, or public

reputation of judicial proceedings.    Johnson, 520 U.S. at

466-67 (quoting Olano, 507 U.S. at 732; United States v.

Young, 470 U.S. 1, 15 (1985)).

     The Court has defined “error” as a “deviation from a

legal rule.”   Olano, 507 U.S. at 732-33; Johnson v. Zerbst,

304 U.S. 458, 464 (1938).   An error is “plain” when it is

“obvious” or “clear under current law,” Olano, 507 U.S. at

734, or “’so egregious and obvious’ that a trial judge and

prosecutor would be ‘derelict’ in permitting it in a trial

held today,” United States v. Thomas, 274 F.3d 655, 667 (2d

Cir. 2001)(citing United States v. Gore, 154 F.3d 34, 43

(2d Cir. 1998)).   An error may become “plain” at the time

of appellate consideration even if it was not “plain” at

the time of the court-martial.    Johnson, 520 U.S. at 468.

An error that affects substantial rights is one that is

materially prejudicial, United States v. Chapa, 57 M.J.

140, 143 (C.A.A.F. 2002); one that effects the outcome or

judgment of the court-martial proceeding; Olano, 507 U.S.

at 734.   Appellant has the burden of demonstrating that


                              9
these first three prongs of the plain error test are met.

United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000).

      Assuming under the first prong of the test that the

judge erred, it is nonetheless clear that under the second

prong the alleged error was not “plain.”    The flyer’s

errancy was neither “obvious” nor “clear under current

law,” as the guilty pleas included on the flyer were

admissible under M.R.E. 803(22) and 404(b).    See Olano, 507

U.S. at 734.   Furthermore, even if the error were plain, it

certainly was not materially prejudicial, and therefore

does not satisfy the third prong of the plain error test.

Three facets of the case mitigate any materially

prejudicial effect of the error.

     First, defense counsel’s recurrent explicit references

to the guilty pleas -- in the opening statement, during the

questioning of witnesses, and then again during closing

argument -- provided the same information to the panel that

was contained in the flyer and to which Appellant now

objects.   Given counsel’s own repeated disclosure of the

guilty pleas, it is extremely unlikely that the flyer

itself effected the trial’s outcome, and therefore clear

that any error was not materially prejudicial.

     Moreover, the Government did not rely on Appellant’s

guilty pleas to prove its case.    By contrast, it plainly


                              10
distinguished the specifications to which Appellant pleaded

guilty from those specifications the Government had yet to

prove at trial.    During the opening statement, trial

counsel told the members:

            Now, [the Accused] has pled guilty to an
            adulterous affair and nonprofessional
            conduct with Private First Class [AC].
            Please separate that from your mind. We are
            proving different charges. Now, you’ll
            [sic] may be able to make some inferences,
            but the fact that he pled guilty to [some
            charges] does not alone prove the remainder
            of the charges.

The Government’s efforts to differentiate the guilty pleas

from the charges addressed at trial undoubtedly diminished

the flyer’s influence on the findings and, in so doing,

abated any materially prejudicial effect of the error.

       Third, and most strikingly, Appellant was charged with

13 specifications, and pleaded guilty to only four.

Appellant now argues that the flyer’s inclusion of the

guilty pleas tainted the outcome of the trial by inclining

the members to find him guilty of other substantially

similar offenses.     However, the charge and findings chart

reproduced below tells a different story.



CHARGE      ARTICLE                DATES        PLEA   FINDING

  I.        92 - Fraternization

1. PFC AC                          Apr-Jul 98          G         G


                                  11
2. PVT SG                           Apr 98         NG      NG
3. PFC MB                           Jul 98         G       G
4. PVT E-2 CA                       Apr-Jun 98     NG      G
     (PV2)

 II.            93 - Maltreatment

1. PFC CA                            Jul 98        NG      NG
2. PFC NW                            Feb-Apr 98    NG      NG
3. PFC AC                            Dec 97        NG      NG

III.            125 - Sodomy

1. PV2 CA                            Apr 98        NG      NG
2. PV2 CA                            Jun 98        NG      NG

 IV.            134 - Indecent Acts, Adultery

1.   PFC   AC                        Dec 97        NG      NG
2.   PFC   AC                        Apr-Jul 98    G       G
3.   PV2   CA                        Apr, Jun 98   NG      G
4.   SP4   CB                        Mar-Jul 98    G       G


Of the 13 total specifications, Appellant was found guilty

of only six.       Of the nine contested specifications,

Appellant was found guilty of only two (emphasized above).

Far from being detrimental, the judge’s alleged error, if

significant at all, actually allowed defense counsel

successfully to employ the guilty pleas throughout the

proceeding to Appellant’s advantage.

       Finally, the fourth prong of the test requires the

court to consider both the quality and quantity of

evidence, as well as to determine whether “a timely

objection in the trial court could have eliminated, or

substantially ameliorated, any error by means well short of


                                    12
the drastic relief -- ordering a new trial -- necessary to

remedy the error on appeal.”   United States v. Promise, 255

F.3d 150, 194 (4th Cir. 2001)(Motz, J., concurring in part

and dissenting in part and dissenting in the judgment)

(citing Johnson, 520 U.S. at 466; United States v. Young,

470 U.S. 1, 15, 16 n.13 (1985); United States v. Frady, 456

U.S. 152, 163 (1982); United States v. Socony-Vacuum Oil

Co., 310 U.S. 150, 238-39 (1940)).    Even assuming that any

error survived the first three prongs of the plain error

test, the judge’s error certainly failed to jump this final

hurdle.   Reviewing the quantity and quality of the evidence

reveals that defense counsel could have formally objected

at trial when given the opportunity, and that such an

objection “could have eliminated, or substantially

ameliorated, any error by means well short of the drastic

relief -- ordering a new trial -- necessary to remedy the

error on appeal.”   See id. Pursuant to the fourth prong of

the plain error analysis, any error in this case did not

seriously affect the fairness, integrity, or public

reputation of judicial proceedings.

     In sum, the military judge’s authorization for the

flyer’s inclusion of the uncontested charges may have

exceeded the “ordinary” instruction advised in R.C.M.

913(a).   However, the judge’s authorization of the flyer


                               13
permitted the members to consider what was otherwise

admissible evidence under M.R.E. 803(22) and 404(b).

Furthermore, in failing to object to the flyer’s content

when the opportunity arose at trial, appellant waived any

post-trial objection to the flyer.   Finally, even assuming

that the military judge did err, the error was not “plain”

to the extent that this Court should reverse the decision

below.

     For these reasons, I respectfully dissent.




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