                       UNITED STATES, Appellee

                                    v.

                   Yolanda FLORES, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 10-0332

                        Crim. App. No. S31621

       United States Court of Appeals for the Armed Forces

                       Argued October 13, 2010

                       Decided February 9, 2011

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

                                 Counsel


For Appellant: Captain Andrew J. Unsicker (argued); Major
Anthony D. Ortiz (on brief); Colonel Eric N. Eklund and Major
Shannon A. Bennett.

For Appellee: Captain Charles G. Warren (argued); Gerald R.
Bruce, Esq. (on brief); Colonel Don M. Christensen and
Lieutenant Colonel Jeremy S. Weber.

Military Judge:   Bryan D. Watson


       This opinion is subject to revision before final publication.
United States v. Flores, No. 10-0332/AF

       Judge ERDMANN delivered the opinion of the court.

       Staff Sergeant Yolanda Flores pleaded guilty to two

specifications of disobeying a lawful order and pleaded not

guilty to two additional specifications of disobeying a lawful

order and two specifications of making false official

statements.   A military judge sitting as a special court-martial

found her guilty of all charges.       Flores was sentenced to a bad-

conduct discharge, confinement for six months, and reduction to

E-1.   The convening authority approved the sentence and the

United States Air Force Court of Criminal Appeals affirmed the

findings and sentence.   United States v. Flores, 69 M.J. 651,

657 (A.F. Ct. Crim. App. 2010).

       A “trial counsel may not comment directly, indirectly, or

by innuendo, on the fact that an accused did not testify in

[her] defense.”   United States v. Carter, 61 M.J. 30, 33

(C.A.A.F. 2005) (citation and quotation marks omitted).      In a

guilty plea context, a military judge who has advised an accused

that she is waiving her right against self-incrimination only to

those offenses to which she is pleading guilty cannot later rely

on those statements as proof of a separate offense.      See United

States v. Resch, 65 M.J. 233, 237 (C.A.A.F. 2007).       We granted

review to consider whether, during her closing statement, trial

counsel improperly referenced statements made by Flores that

were protected by the Fifth Amendment and whether she improperly



                                   2
United States v. Flores, No. 10-0332/AF

commented on Flores’ right to remain silent.1   We conclude that

any errors or presumed errors were harmless beyond a reasonable

doubt.    Therefore, we affirm the decision of the Air Force Court

of Criminal Appeals.

                             BACKGROUND

       Flores was assigned as a quad shift leader at a detention

facility in Camp Bucca, Iraq.    A “quad” contained up to about

280 detainees and as shift leader Flores was responsible for

their welfare and security during her shift.    The detention

facility guards at Camp Bucca were subject to various lawful

orders concerning the operation of the facility.   Flores was

charged with failing to obey lawful orders which prohibited the

photographing and videoing of detainees, the transfer of those

photographs and video to others, and with fraternizing and

developing an unprofessional relationship with detainees.    She

was also charged with making false official statements to

investigators concerning the photographs and her relationship

with the detainees.




1
    We granted review of the following issue:

       Whether trial counsel improperly commented on
       Appellant’s constitutional right to remain silent thus
       depriving Appellant of a fair trial.

United States v. Flores, 69 M.J. 166 (C.A.A.F. 2010) (order
granting review).

                                  3
United States v. Flores, No. 10-0332/AF

        After electing trial by military judge alone, Flores

entered guilty pleas to taking, and then transferring to another

detention facility guard, photographs and a video of detainees.

During the guilty plea inquiry the military judge advised her:

        [B]y your plea of guilty you give up three important
        rights, but you give up these rights solely with
        respect to the offenses to which you have pled guilty.

             First, the right against self-incrimination, that
        is, the right to say nothing at all.

        During the subsequent plea inquiry Flores admitted to

disobeying a lawful order by taking two photographs of detainees

and a video of a detainee.    She also admitted transferring the

photos to Airman AB, a female detention facility guard in her

quad.    Following the providence inquiry the military judge

accepted Flores’ pleas but reserved entering findings until

after trial on the contested charges.    Flores did not testify

during the contested portion of the trial.

        The military judge found that Flores became romantically

involved with one detainee (Hassam), had sex with him in the

detainment facility,2 lent him her camera to take pictures of

her, and provided him with a photograph of herself in civilian

clothes.    The military judge also found that Flores took a video




2
  The references in the record as to where the alleged sexual
intercourse took place referred to both the shower area and the
water closets (toilet area), which are adjacent.

                                   4
United States v. Flores, No. 10-0332/AF

of another detainee (Siraj) and solicited him to express his

love for Airman AB on the video.       When initially questioned by

investigators, Flores denied taking any photographs and denied

any unprofessional relationship with detainees.      When she was

confronted with the photographs and video, she admitted taking

the video but stated she did not remember the photographs.

                              DISCUSSION

        Flores makes two separate Fifth Amendment claims in regard

to trial counsel’s closing argument:       trial counsel improperly

referenced statements Flores had made during the providence

inquiry to prove offenses to which she had pleaded not guilty;

and, trial counsel made several improper references to the fact

that Flores did not testify during the contested portion of the

trial.

        Whether trial counsel’s comments improperly reference an

accused’s invocation of an accused’s constitutional right to

remain silent is a question of law that this court reviews de

novo.    United States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007).

When an objection is made to a nonconstitutional error,

appellate courts determine whether the error materially

prejudiced the substantial rights of the accused.      Article

59(a), UCMJ, 10 U.S.C. § 859(a) (2006); United States v.

Edwards, 35 M.J. 351, 355 (C.M.A. 1992).




                                   5
United States v. Flores, No. 10-0332/AF

      When no objection is made during the court-martial, a

counsel’s arguments are reviewed for plain error.    United States

v. Schroder, 65 M.J. 49, 57-58 (C.A.A.F. 2007).     Plain error

occurs when (1) there is error, (2) the error is plain or

obvious, and (3) the error results in material prejudice.

United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008).

Regardless of whether there was an objection or not, “[i]n the

context of a constitutional error, the burden is on the

Government to establish that the comments were harmless beyond a

reasonable doubt.”   Carter, 61 M.J. at 35 (citation omitted).

I.   Trial counsel’s reference in her closing argument to Flores’
     providence inquiry statements

      The first two statements to which Flores objects contain

references by the trial counsel to statements made by Flores

during her providence inquiry.    A guilty plea and related

statements to one offense cannot be admitted to prove any

element of a separate offense.3   A military judge who advises an

accused that she is waiving her right against self-incrimination

only to the offenses to which she is pleading guilty must not

later rely on those statements as proof of a separate offense.

See Resch, 65 M.J. at 237.   To do so would compel an accused to

incriminate herself in the separate criminal proceeding.


3
  This prohibition does not apply when using a plea to a lesser
included offense to prove a common fact or element of a greater
offense. United States v. Caszatt, 11 C.M.A. 705, 706-07, 29
C.M.R. 521, 522-23 (1960).

                                  6
United States v. Flores, No. 10-0332/AF

Comment One:

          Airman [AB] also testified to the video regarding
     [detainee] Siraj, how she had asked Flores to hold her
     camera that day and it comes back with a video on it
     of Siraj. Well that was corroborated by Sergeant
     Flores. She actually corroborated that in court, in
     front of you, Your Honor.

(Emphasis added.)

     The Government relied on the testimony of Airman AB to

corroborate much of the various testimonial and documentary

evidence admitted during the court-martial.   Trial counsel

devoted a portion of her closing argument to support Airman AB’s

credibility.   In this comment, however, trial counsel

specifically referred to a statement that Flores made during her

providence inquiry in an attempt to show that Flores

corroborated Airman AB’s testimony concerning the video.

Defense counsel did not object.   Therefore, we review this

statement for plain error.

     Given the direct reference made by trial counsel to a

statement made by Flores at the providence inquiry, there can be

little doubt that this was error and that it was plain and

obvious.   The error, however, was harmless beyond a reasonable

doubt.   Flores admitted to taking the video in question in her

voluntary pretrial statement to investigators, which was

properly admitted at trial.   Therefore, while this comment was

plain and obvious error, the referenced corroboration was also




                                  7
United States v. Flores, No. 10-0332/AF

contained in Flores’ pretrial statement and the error was

harmless beyond a reasonable doubt.

Comment Two:

     Of course the testimony in court was that there are
     more times that pictures were exchanged. There are
     more pictures that she was involved with taking. A
     case in point will be the ones of herself, four, and
     the three of [AB], when Airman [AB] explains those
     were taken by Hassam. That didn’t come out of
     Sergeant Flores’ mouth.

(Emphasis added.)

     Here trial counsel argued that Airman AB testified about

the existence of more pictures than Flores admitted to taking.

The implication was that Flores had not been forthcoming to the

court regarding her involvement with the detainees.   When trial

counsel made the statement, it was unclear as to whether she was

referring to the pretrial statements that Flores had made to

investigators or to the statements Flores made during her

providence inquiry.   When the defense counsel objected on the

grounds that this statement was a comment on Flores’ right to

remain silent, trial counsel responded, “No, it wasn’t Your

Honor.   It was a comment on what Sergeant Flores told you in

court during her guilty plea.”

     If there was any question as to whether this was a

reference to a statement made by Flores at her providence

inquiry, trial counsel’s response cleared up any confusion.

However, the military judge overruled the objection without



                                 8
United States v. Flores, No. 10-0332/AF

explanation.   Although this error was of constitutional

dimension, it was also harmless beyond a reasonable doubt.4

     During the providence inquiry Flores admitted to taking

only two of the photographs of detainees contained in

Prosecution Exhibit (PE) 7 and the video of one detainee

contained on a CD identified as PE 8.   Airman AB, on the other

hand, testified that Flores took a number of the photographs of

detainees contained in PE 6 and 7 as well as the video.    Airman

AB also testified that Flores took at least ten additional

photographs of detainees that were not contained in PE 6 and 7.

Trial counsel erred in making this comparison to Flores’

protected statements made during the providence inquiry.

     However, in Flores’ pretrial statements to investigators,

while she initially denied taking any pictures, when she was

confronted with the pictures and video she admitted taking the

video but stated that she did not remember the pictures.   The

basis for the implication that Flores had not been forthcoming

as to the number of photographs she took was therefore properly




4
  Trial counsel was arguing that Flores had not been forthcoming
in her version of facts and in cases where the accused does not
testify, this tactic is fraught with danger as it often
implicates an accused’s right to remain silent.

                                 9
United States v. Flores, No. 10-0332/AF

before the court in Flores’ voluntary pretrial statements, again

rendering the error harmless beyond a reasonable doubt.

II.   Trial counsel’s comments on Flores’ right to remain silent

      “It is black letter law that a trial counsel may not

comment directly, indirectly, or by innuendo, on the fact that

an accused did not testify in [her] defense.”   United States v.

Mobley, 31 M.J. 273, 279 (C.M.A. 1990) (citation omitted).

However, we have noted that not every prosecutorial comment on

the failure of an accused to testify is impermissible, citing

United States v. Coven, 662 F.2d 162, 171 (2d Cir. 1981), as

follows:

      It is well established that the government may comment
      on the failure of a defendant to refute government
      evidence or to support his own claims. A
      constitutional violation occurs only if either the
      defendant alone has the information to contradict the
      government evidence referred to or the jury naturally
      and necessarily would interpret the summation as
      comment on the failure of the accused to testify.

Carter, 61 M.J. at 33 (quotation marks omitted).   Challenged

statements are reviewed in context rather than in isolation.

United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (quoting

United States v. Young, 470 U.S. 1, 16 (1985)).

Comment Three:

           It’s very interesting what Sergeant [KS] told us
      about talking to Airman [AB] and Sergeant Flores [in
      their interviews] . . . . I believe Sergeant [KS]’s
      words were there was never a set story from her. And
      the government contends you still don’t have a set
      story from Sergeant Flores.



                                10
United States v. Flores, No. 10-0332/AF


(Emphasis added.)

     Trial counsel noted that Staff Sergeant KS had taken

Flores’ pretrial statement and that she testified that Flores

never gave a set story to investigators.    She then argued that

the court still didn’t have a set story from Flores.   Defense

counsel objected to trial counsel’s comment as being an improper

reference to Flores’ right to remain silent.   The military judge

overruled the objection without explanation.   In the context of

the entire court-martial, even if this was error, it was

harmless beyond a reasonable doubt as this is a case where the

evidence of guilt was truly overwhelming.

     As to Charge I, Specification 3, which charged Flores with

“wrongfully fraternizing with or acting with undue familiarity

toward [detainee] ‘Hassam,’” the Government presented the

following evidence from Airman AB:   Flores admitted she had

feelings for Hassam; Flores admitted having sex with Hassam in

the shower area, Flores used condoms and Airman AB saw the

condoms; Flores and Hassam were seen kissing; Flores gave Airman

AB a photograph of Hassam; Hassam took a photograph of Flores;

Hassam took two photographs of Flores and Airman AB; Airman AB

testified seeing photographs where Hassam’s arm was around

Flores, kissing her on the cheek and kissing her on the lips.

Other evidence included:   a civilian photograph of Flores found

in Hassam’s possession; a government-issued notebook found in


                                11
United States v. Flores, No. 10-0332/AF

Hassam’s possession that had a heart drawn on it and the name

“Flores”; Sergeant CK testified that he had seen Flores in the

shower area at unusual times and that he noticed Hassam and

Flores talking a lot during shifts.

     As to Charge I, Specification 4, which charged Flores with

“wrongfully fraternizing with or acting with undue familiarity

toward detainee ‘Siraj,’” the Government presented the following

evidence:   a CD containing a video of Siraj in which Flores

asked Siraj to tell Airman AB that he loved her; Flores’

pretrial statement in which she admitted taking the video;

Airman AB’s testimony that Flores took the video; Technical

Sergeant PH’s testimony that he saw a photograph of Siraj on

Flores’ camera.

     Charge II, Specification 1, charged Flores with making the

following false official statements to investigators:   “‘I did

not take any photographs of detainees,’ ‘I do not believe that

any guards went inside the wire without proper authorization or

without following proper schedule,’ ‘As for guards having

unprofessional relationships with detainees, with the exception

of Airman [AB] being too friendly, I do not think there were

any,’ or words to that effect. . . .”   Charge II, Specification

2, charged Flores with making the following false official

statements to investigators:   “‘I did not have unprofessional

friendships with any guards, ICOs (Iraqi correction officers) or



                                12
United States v. Flores, No. 10-0332/AF

detainees and neither did anyone else that I knew of,’ or words

to that effect. . . .”   The evidence reviewed in reference to

Charge I, Specifications 3 and 4, is equally applicable to

establishing that these statements were false and was indeed

overwhelming as to Flores’ guilt on all the charges and

specifications.   This evidence establishes that even if this

comment by trial counsel was error, it was harmless beyond a

reasonable doubt.

Comment Four:

          In the end Your Honor, it is a matter of
     credibility. Whose testimony in this courtroom is
     supported and whose isn’t. And the government
     contends that Airman [AB]’s testimony is the one
     that’s corroborated. When you look at all the other
     witnesses and you piece it together like a puzzle,
     everything that she said . . . is corroborated. . . .
     There’s nothing that corroborates anything in terms of
     what Sergeant Flores has stated, when she had the
     opportunity to state things.

(Emphasis added.)

     Trial counsel claimed that nothing introduced during the

court-martial corroborated Flores’ statements.   Defense counsel

did not object.   Therefore, we review this statement for plain

error.   Trial counsel’s comment that nothing corroborated what

Flores had said “when she had the opportunity to state things,”

when taken in isolation, could be interpreted to be a reference

to Flores’ right to remain silent.   However, even if this

comment constituted error, it is not plain and obvious.   “An

error is not ‘plain and obvious’ if, in the context of the


                                13
United States v. Flores, No. 10-0332/AF

entire trial, the accused fails to show the military judge

should be ‘faulted for taking no action’ even without an

objection.’”    United States v. Burton, 67 M.J. 150, 153

(C.A.A.F. 2009) (citations omitted).

     Flores made two voluntary pretrial statements to

investigators which were properly before the court.   In the

context of trial counsel’s argument, this is an argument that

nothing was admitted during the court-martial that corroborated

Flores’ pretrial statements to investigators.   Flores has not

established that the error, if error at all, was plain and

obvious.

Comment Five:

          “Your Honor, we ask you to go back and weigh
     heavily what testimony and evidence you have that
     supports Airman [AB]’s version of the facts and what
     you have that supports Sergeant Flores’s.”

(Emphasis added.)

     Defense counsel argued during closing argument that Airman

AB was not a credible witness.   Trial counsel responded during

rebuttal argument by summarizing the evidence introduced during

the court-martial and argued that it corroborated Airman AB’s

testimony.   Defense counsel did not object, so we again review

for plain error.

     We do not find error in this statement but instead find

this to be proper comment on the evidence.   Trial counsel

reviewed the evidence before the court and then compared Airman


                                 14
United States v. Flores, No. 10-0332/AF

AB’s testimony and Flores’ only version of the facts, which was

contained in her pretrial statements to investigators.      “‘It is

well established that the government may comment on the failure

of a defendant to refute government evidence or to support [her]

own claims.’”   United States v. Webb, 38 M.J. 62, 66 (C.M.A.

1993) (quoting Coven, 662 F.2d at 171).    “‘The test for

determining whether an indirect remark constitutes improper

comment on a defendant’s failure to testify is:   Was the

language used manifestly intended to be, or was it of such

character that the jury would naturally and necessarily take it

to be a comment on the failure of the accused to testify?’”     Id.

(quoting United States v. Anderson, 481 F.2d 685, 701 (4th Cir.

1973)); see also Carter, 61 M.J. at 33.    Here, the comparison

was not intended, nor would it have been interpreted to be, a

comment on Flores’ failure to testify.    We find no error in this

comment.

III.    Cumulative Error

       Flores also argues that the cumulative effect of the five

comments warrant reversal even if each is individually non-

reversible.   “It is well-established that an appellate court can

order a rehearing based on the accumulation of errors not

reversible individually.”   United States v. Dollente, 45 M.J.

234, 242 (C.A.A.F. 1996).   We held that Comments One and Two

constituted error but found that those errors were harmless



                                 15
United States v. Flores, No. 10-0332/AF

beyond a reasonable doubt as the information contained in

Flores’ providence inquiry statements referenced by trial

counsel in her closing argument was independently admitted into

evidence and therefore properly before the court.   As to the

three comments which Flores argued were improper references to

her right to remain silent, we held as follows:   Comment Three,

if error, was harmless beyond a reasonable doubt due to the

overwhelming evidence of Flores’ guilt; Comment Four, if error,

was not plain or obvious; and Comment Five was not error at all.

As to the errors we did find, we do not believe there is a

reasonable possibility that, taken cumulatively, those errors

might have contributed to the conviction.   See Moran, 65 M.J. at

187.   In addition, appellate courts are far less likely to find

cumulative error where the record contains overwhelming evidence

of a defendant’s guilt.   Dollente, 45 M.J. at 242 (citing United

States v. Thompson, 1 F.3d 149, 157 (3d Cir. 1993)).    As noted

in the discussion on Comment Three, here the evidence of Flores’

guilt was indeed overwhelming.

                              DECISION

       The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                 16
United States v. Flores, No. 10-0332/AF


     STUCKY, Judge (dissenting in part and concurring in the

result):

     I agree with the majority in affirming the judgment of the

United States Air Force Court of Criminal Appeals, but I

continue to disagree with the majority’s application of the

plain error doctrine.   See United States v. Paige, 67 M.J. 442,

452 (C.A.A.F. 2009) (Stucky, J., dissenting in part and

concurring in the result).   The majority’s view of the plain

error doctrine is flawed in two respects:   (1) the basis for its

view of the prejudice prong of the doctrine is derived from

military case law involving preserved, rather than unpreserved,

constitutional error; and (2) once an accused establishes

prejudice under the plain error doctrine, it is impossible for

the government to then demonstrate that the plain error was

harmless beyond a reasonable doubt.

                                I.

     There are four elements to the Supreme Court’s plain error

doctrine, the first three of which the appellant has the burden

of establishing:   (1) there is error; (2) the error is clear, or

obvious; and (3) the error affected the appellant’s substantial

rights (prejudice).   Puckett v. United States, 129 S. Ct. 1423,

1429 (2009).   “If these three conditions are met, an appellate

court may exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness,
United States v. Flores, No. 10-0332/AF


integrity, or public reputation of judicial proceedings.”

Johnson v. United States, 520 U.S. 461, 462 (1997); accord

Puckett, 129 S. Ct. at 1429; United States v. Powell, 49 M.J.

460, 463-64 (C.A.A.F. 1998).   As noted in my dissent in Paige,

“[a]n appellant satisfies the prejudice prong of the plain error

test by demonstrating ‘a reasonable probability that, but for

[the error claimed], the result of the proceeding would have

been different.’”   67 M.J. at 453-54 (Stucky, J., dissenting in

part and concurring in the result) (quoting United States v.

Dominguez Benitez, 542 U.S. 74, 82 (2004)); see also United

States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986) (requiring

appellant to show a “prejudicial impact on the jury’s

deliberations”).    Appellant failed to establish that but for any

of the alleged errors, the results of the proceedings would have

been different.

                                 II.

     The majority opinion contends that once an appellant

establishes prejudice under the plain error doctrine, the

government may still prevail by establishing that the

constitutional error was harmless beyond a reasonable doubt.    In

a plain error case, as opposed to one in which the appellant

preserved the error at trial, the burden of persuasion is on the

appellant and never shifts to the government.   Dominguez

Benitez, 542 U.S. at 82.    “[T]he burden of establishing


                                  2
United States v. Flores, No. 10-0332/AF


entitlement to relief for plain error is on the defendant

claiming it, and for several reasons, we think that burden

should not be too easy for defendants . . . .”   Id.    The

majority’s view -- that, after the appellant establishes plain

error, the government is entitled to try to establish that the

comments were harmless beyond a reasonable doubt -- is built on

a faulty foundation, namely cases in which the error was

preserved or there was no discussion of plain error.1

                               III.

     Once an appellant establishes that an obvious error

resulted in “‘material’ (significant) prejudice -- a reasonable

probability that, but for the error the result would have been

different -- it is impossible for the government to show the

error was harmless beyond a reasonable doubt.”   Paige, 67 M.J.

at 454 (Stucky, J., dissenting in part and concurring in the

result).   To permit the government to show that the prejudicial

error was harmless beyond a reasonable doubt under such

circumstances is similar to permitting the government to prove

1
  The majority opinion cites to United States v. Carter, 61 M.J.
30, 35 (C.A.A.F. 2005), for this proposition. United States v.
Flores, __ M.J. __ (6) (C.A.A.F. 2011). But Carter was derived
from a dictum in Powell, 49 M.J. at 464-65, that was itself
based on United States v. Adams, 44 M.J. 251, 252 (C.A.A.F.
1996), a case in which neither the issue granted for review nor
this Court’s opinion discussed plain error. See also United
States v. Moran, 65 M.J. 178, 185 (C.A.A.F. 2007) (citing United
States v. Alameda, 57 M.J. 190, 198 (C.A.A.F. 2002) (a case in



                                 3
United States v. Flores, No. 10-0332/AF


beyond a reasonable doubt that an affirmative defense did not

exist after the accused established the affirmative defense by a

preponderance of the evidence, a practice which we refused to

countenance.   See United States v. Prather, __ M.J. __ (17-18)

(C.A.A.F. 2011).




which the defense clearly preserved the error by objecting at
trial to the trial counsel’s closing argument)).

                                 4
