                                    IN THE CASE OF


                 UNITED STATES, Appellant/Cross-Appellee

                                            v.

                   Mario L. CARTER, Airman First Class
                U.S. Air Force, Appellee/Cross-Appellant

                                      No. 04-5002
                               Crim. App. No. 35027

       United States Court of Appeals for the Armed Forces

                             Argued December 7, 2004

                             Decided April 18, 2005

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

                                         Counsel


For Appellee/Cross-Appellant: Lieutenant Colonel Robin S. Wink
    (argued); Colonel Beverly B. Knott, Lieutenant Colonel
    Carlos L. McDade, Major Terry L. McElyea, and Captain
    Jennifer K. Martwick (on brief).

For Appellant/Cross-Appellee: Major James K. Floyd (argued);
    Colonel LeEllen Coacher, Lieutenant Colonel Robert V. Combs,
    Lieutenant Colonel Gary F. Spencer, and Captain C. Taylor
    Smith (on brief).


Military Judge: Steven A. Hatfield


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Carter, No. 04-5002/AF


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of officer members,

Appellee/Cross-Appellant (Appellee) was convicted, pursuant to

his pleas, of using marijuana, distributing marijuana,

distributing cocaine, introducing marijuana onto an installation

with intent to distribute, and introducing cocaine onto an

installation with intent to distribute, in violation of Article

112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a

(2000).   He was also convicted, contrary to his plea, of

indecent assault, in violation of Article 134, UCMJ, 10 U.S.C. §

934 (2000).   He was sentenced to a bad-conduct discharge,

confinement for three years, forfeiture of all pay and

allowances, and reduction to E-1.    The convening authority

approved the sentence.   In an unpublished opinion, the United

States Air Force Court of Criminal Appeals set aside the

findings on the indecent assault charge, affirmed the remaining

findings, and set aside the sentence.   The court authorized a

rehearing on the indecent assault charge and on the sentence.

United States v. Carter, ACM 35027 (A.F. Ct. Crim. App. Oct. 17,

2003).

     The Judge Advocate General of the Air Force certified the

following issue:

           WHETHER THE AIR FORCE COURT OF CRIMINAL
           APPEALS ERRED IN FINDING PLAIN ERROR WHEN


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United States v. Carter, No. 04-5002/AF


          TRIAL COUNSEL ARGUED THAT THE EVIDENCE WAS
          “UNCONTROVERTED” AND “UNCONTRADICTED.”

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

issue:

          WHETHER APPELLEE/CROSS-APPELLANT WAS DENIED
          EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
          DEFENSE COUNSEL FAILED TO OBJECT TO TRIAL
          COUNSEL’S REPEATED ARGUMENT THAT THE
          EVIDENCE WAS “UNCONTROVERTED” AND
          “UNCONTRADICTED” AND TOLD THE COURT MEMBERS
          THAT APPELLANT HAD AN “ABSOLUTE RIGHT NOT TO
          TESTIFY AND INCRIMINATE HIMSELF.”

We affirm the decision of the court below, which concluded that

the statements by trial counsel constituted prejudicial error

under the circumstances of this case.   In view of our decision

on the certified issue, we need not reach the granted issue.



                          I. BACKGROUND

     At trial, Appellee contested the indecent assault charge.

The prosecution presented one witness in support of the charge,

the alleged victim, Senior Airman (SrA) D.   According to SrA D’s

testimony, the following transpired early one morning when she

was in her dorm room, watching a movie.   Appellee, who was a

close friend, knocked on her door.   She was alone at the time,

and she invited him into the room to watch the movie.    At one

point, SrA D, who was lying on her bed, told Appellee that he

could not sit on her bed, so he sat on the floor.   Subsequently,

Appellee touched SrA D’s hand, but she moved it away and told


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United States v. Carter, No. 04-5002/AF


him she was “with someone.”   Appellee persisted by rubbing her

arm.   She told him “no” and said that he should stop.   Later, he

rubbed her leg.   SrA D told him to “chill out.”   Instead,

Appellee got on top of her, and she told him to get off and

attempted to force him off by rolling over.   While the two

wrestled, Appellee pulled her shorts down, lifted her shirt and

bra, and put his mouth on her breast.   She told Appellee “no”

several times over the course of the struggle.     After pushing

Appellee away, she told him to leave.   When he refused, she

called the law enforcement desk, but Appellee disconnected the

phone after it rang only once.    Appellee then walked to the

door, and SrA D pushed him out.

       SrA D also testified that she did not yell for help and

that she did not injure Appellee during the struggle.    She

reported the incident later the same morning.

       On cross-examination, SrA D acknowledged that she had

engaged in consensual sexual intercourse with Appellee several

months earlier.   Upon further questioning during redirect

examination, she stated that she had initiated the consensual

encounter.

       The Government did not present any other witnesses or

evidence regarding the indecent assault charge.    After the

Government rested, defense counsel announced in open court that

the defense would call one witness.   The Government then


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United States v. Carter, No. 04-5002/AF


requested an Article 39(a) session.    See Article 39(a), UCMJ, §

839(a)(2000).    During the session, from which the members were

absent, the Government asserted that the anticipated testimony

of the defense witness, a friend of the victim, would constitute

inadmissible hearsay.    Instead of contesting the Government’s

position, defense counsel stated, “Your Honor, rather than fight

this out, we’re going to withdraw the witness and therefore

rest.”   When the members returned to the courtroom, the military

judge told the defense counsel to proceed.    The defense counsel

responded, “At this time the defense rests.”    Appellee did not

testify, and the defense did not submit any evidence or call any

witnesses.

     During closing arguments, the trial counsel repeatedly

characterized the evidence concerning the indecent assault as

“uncontroverted” and “uncontradicted”:

             The facts of this case are clear. They are
             uncontroverted, uncontradicted. No opposing
             evidence or information. The evidence you
             have before you is the testimony of [SrA D].
             She sat here on this witness stand. She
             swore an oath to tell the truth and she told
             you all what happened on 24 December 2000.
             And the reason that her testimony is
             uncontroverted is because she told you what
             happened and that is what happened.

             . . . .

             Let’s talk about those elements [of indecent
             assault] just very briefly because they are
             easily satisfied by the uncontradicted
             uncontroverted evidence in this case.


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United States v. Carter, No. 04-5002/AF



            . . . .

            . . . [SrA D’s version of events] is exactly
            what happened in this case. That is the
            uncontroverted testimony before you. That
            is the evidence that you have. Why?
            Because that is exactly what happened.

            . . . .

            The elements [of indecent assault] are
            satisfied based on the uncontroverted
            evidence.

            . . . .

            . . . The government believes . . . that
            those things occurred, that they are
            uncontradicted in this case and that you
            should find him guilty of the charge as
            specified.

Defense counsel, who did not object during trial counsel’s

closing argument, responded during the defense’s closing

argument:

            Trial counsel talked about there is no
            opposing story. Well, my client,
            [Appellee], has a right, an absolute right
            not to testify and incriminate himself. And
            that should be made entirely clear. So we
            have her story. The facts still do not add
            up as much as trial counsel would like you
            to believe that.

Following defense counsel’s closing argument, the military judge

gave the following instruction to the members:

            I will point out that the accused has an
            absolute right to remain silent. You will
            not draw any adverse inference to the
            accused from the fact he did not testify as



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United States v. Carter, No. 04-5002/AF


          a witness. You must disregard the fact that
          the accused has not testified.

Trial counsel then presented a rebuttal argument, in which he

again characterized the facts as “uncontradicted”:

          Along those lines, members, all I would say
          to you is [the military judge’s instruction]
          is absolutely correct, but what you have to
          deal with is the evidence that is before
          you. And the government doesn’t change its
          position one bit about the fact that what
          you have are uncontradicted facts.

          You have uncontradicted facts that are the
          basic foundation of the case.

          . . . .

          The facts in this case are clear, the
          uncontradicted testimony.


                           II. DISCUSSION

           A. THE PRIVILEGE AGAINST SELF-INCRIMINATION

     Members of the armed forces, like their civilian

counterparts, may not be compelled to incriminate themselves in

a criminal case.    U.S. Const. amend. V; Article 31(a), UCMJ, 10

U.S.C. § 831(a)(2000).   The privilege against self-incrimination

provides an accused with the right to not testify, and precludes

“comment by the prosecution on the accused’s silence.”   Griffin

v. California, 380 U.S. 609, 615 (1965).

     In United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990),

we observed that “[i]t is black letter law that a trial counsel

may not comment directly, indirectly, or by innuendo, on the


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United States v. Carter, No. 04-5002/AF


fact that an accused did not testify in his defense.”     As noted

in the Discussion accompanying Rule for Court-Martial (R.C.M.)

919(b) in the Manual for Courts-Martial, United States (2002

ed.)(MCM): “Trial counsel may not comment on the accused’s

exercise of the right against self-incrimination . . . . Trial

counsel may not argue that the prosecution’s evidence is

unrebutted if the only rebuttal could come from the accused.”

Although not binding, the Discussion reflects applicable

judicial precedent.   See MCM, Analysis of R.C.M., app. 21 at

A21-66.

     Not every prosecutorial comment on the failure of an

accused to testify is impermissible.   As the Second Circuit has

noted:

           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.”

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

1981)(citations omitted), quoted in United States v. Webb, 38

M.J. 62, 66 (C.M.A. 1993).   A prosecutorial comment must be

examined in light of its context within the entire court-

martial.   See, e.g., United States v. Baer, 53 M.J. 235, 238



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United States v. Carter, No. 04-5002/AF


(C.A.A.F. 2000).    Under the “invited response” or “invited

reply” doctrine, the prosecution is not prohibited from offering

a comment that provides a fair response to claims made by the

defense.    See, e.g., United States v. Gilley, 56 M.J. 113, 120-

21 (C.A.A.F. 2001) (citing United States v. Robinson, 485 U.S.

25, 32 (1988)).


                              B. ANALYSIS

        The certified issue requires us to determine whether trial

counsel’s statements amounted to an impermissible reference to

Appellee’s Fifth Amendment right to not testify, or whether the

statements were a fair response to the defense’s theory of the

case.    In the absence of objection, we review for plain error.

R.C.M. 919(c); Gilley, 56 M.J. at 123.      Appellee must show that

there was error, that the error was plain, and that the error

materially prejudiced his substantial rights.     See United States

v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998).     Once Appellee

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.

Carpenter, 51 M.J. 393, 396 (C.A.A.F. 1999).

        The charged act involved two adults alone in a private room

in the early hours of the morning.     There were no screams, no

injuries, no physical evidence of a struggle, and no other



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United States v. Carter, No. 04-5002/AF


witnesses.   Only Appellee possessed information to contradict

the Government’s sole witness.   Under these circumstances,

prosecutorial comment on the failure to present contradicting

evidence constitutes an impermissible reference to Appellee’s

exercise of the privilege against self-incrimination unless the

comment constituted a fair response to a claim made by the

defense.   See Robinson, 485 U.S. at 32-34.

     The Government argues that there was no Fifth Amendment

violation because trial counsel’s comments responded fairly to

the defense theory that SrA D was not a credible witness.      See

also Carter, ACM 35027, slip op. at 8-9 (Stone, J., concurring

and dissenting).    The record, however, reflects that trial

counsel’s comments were not tailored to address any weaknesses

in the defense’s cross-examination of SrA D or the defense’s

efforts to impeach her.   Instead, trial counsel broadly

described the facts and evidence as “uncontradicted” and

“uncontroverted.”    See Lent v. Wells, 861 F.2d 972, 975 (6th

Cir. 1988) (rejecting the State’s argument that the prosecutor’s

comments were a response to defense counsel’s opening statement

when the remarks were not tailored to address that statement).

     Credibility is at issue in nearly all cases involving

witness testimony.   In the present case, the prosecution’s

argument repeatedly drew the members’ attention to the fact that

Appellee did not testify.   The comments were not tailored to the


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United States v. Carter, No. 04-5002/AF


defense credibility argument.   If we were to hold that any

defense challenge to a witness’s credibility opens the door to

such prosecutorial comments, the “invited reply” doctrine would

swallow the protections guaranteed by the Fifth Amendment.

     The improper comments in this case were not isolated or a

“slip of the tongue.”   See United States v. Moore, 917 F.2d 215,

225 (6th Cir. 1990) (factoring in the isolated nature of the

prosecutorial comments when determining the context of the

comments); J.E. Evans, Annotation, “Comment or Argument by Court

or Counsel That Prosecution Evidence is Uncontradicted as

Amounting to Improper Reference to Accused’s Failure to

Testify,” 14 A.L.R. 3d 723 § 6 (1967 Supp. 2005) (summarizing

case law viewing repetition of the comment as an indication of

whether the comment was improper); United States v. Wagner, 884

F.2d 1090, 1099 (8th Cir. 1989) (finding no Fifth Amendment

violation when the prosecutor inadvertently stated the

appellant’s name instead of his codefendants’ names).    Trial

counsel used the words “uncontroverted” and “uncontradicted”

repeatedly -- eleven times in all -- such that the reference to

Appellee’s decision not to testify became a centerpiece of the

closing argument.   Even after the military judge instructed the

members not to draw any adverse inferences from Appellee’s

silence, trial counsel persisted in characterizing the evidence




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United States v. Carter, No. 04-5002/AF


as “uncontradicted” three more times.    As the Court of Criminal

Appeals concluded:

             [T]he sheer number of times he mentioned the
             words was of such a character that the
             members would naturally and necessarily take
             it as [comment on Appellee’s failure to
             testify]. Additionally, the fact that he
             mentioned the words so often makes it
             difficult to conclude that the comments were
             isolated.

Carter, ACM 35027, slip op. at 5.

     Considering the statements in context, trial counsel

improperly implied that Appellee had an obligation to produce

evidence to contradict the Government’s witness.    This

essentially shifted the burden of proof to Appellee to establish

his innocence -- a violation of protections of the Fifth

Amendment.    Under these circumstances, the comments constituted

error under the first prong of the plain error test.    See

Powell, 49 M.J. at 463.

     As noted above, trial counsel repeatedly made the comments

in the context of Appellee’s decision not to testify.       In light

of the well-established prohibition against such comments, as

reflected in Mobley, 31 M.J. at 279, and in the Discussion

accompanying R.C.M. 919(b), the error was plain under the second

prong of the plain error test.    See Powell, 49 M.J. at 463.

     The third prong of Powell asks whether the error materially

prejudiced Appellee’s substantial rights.    49 M.J. at 463-65.



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United States v. Carter, No. 04-5002/AF


In the context of a constitutional error, the burden is on the

Government to establish that the comments were harmless beyond a

reasonable doubt.   Id. at 465 n.*.    The Government contends that

any error was harmless because the military judge gave curative

instructions.   See also Carter, ACM 35027, slip op. at 9 (Stone,

J., concurring and dissenting).    Although the military judge

instructed the members that they were not to make adverse

inferences from Appellee’s decision to remain silent, we agree

with the majority opinion below that trial counsel’s subsequent

rebuttal vitiated any curative effect.    Id. slip op. at 6.     The

rebuttal occurred immediately after the instruction, and trial

counsel continued to make improper reference to Appellee’s

silence by characterizing the evidence as “uncontroverted.”

     The Government also contends that the impact of any error

was not prejudicial because the defense failed to fulfill a

promise to put on a defense.   See Lockett v. Ohio, 438 U.S. 586,

595 (1978) (finding that the prosecutor’s comments that the

evidence was unrefuted and uncontroverted were not improper

because petitioner’s counsel focused the jury’s attention on her

silence by promising a defense and telling the jury that

petitioner would testify); Webb, 38 M.J. at 66 (holding that

where defense counsel told the members that the appellant’s wife

would testify as to the appellant’s alibi, but she did not

testify, “the prosecutor’s closing remarks add little to the


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United States v. Carter, No. 04-5002/AF


impression created after the jury had been promised a defense by

appellant’s lawyer”).

     This is not such a case.   The defense in the present case

never focused the members’ attention on any facts that it

planned to present.   Although the defense at one point noted

that they intended to present a witness, defense counsel did not

inform the members of the identity of the witness or create any

expectation as to the substance of the witness’s testimony.

Defense counsel’s opening statement made it clear that the

defense’s theory was to question the credibility of the

Government’s witness.   The opening statement did not refer to

evidence or witnesses the defense was going to produce.   Also,

during voir dire, defense counsel specifically discussed with

the members Appellee’s right not to testify and his right not to

present any evidence.   See Lent, 861 F.2d at 976 (finding that

defense counsel’s voir dire testimony prepared the jurors for

the petitioner’s silence).   Under these circumstances, the

Government has not met its burden of establishing that trial

counsel’s improper comments were harmless beyond a reasonable

doubt.




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United States v. Carter, No. 04-5002/AF


                         III. CONCLUSION

     The certified question is answered in the negative.    The

decision of the United States Air Force Court of Criminal

Appeals is affirmed.




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United States v. Carter, No. 04-5002/AF


     CRAWFORD, Judge (dissenting):

     If there was error in this case, it was not plain error:

it neither “affect[ed Appellee’s] substantial rights,” nor

“seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.”   Johnson v. United States,

520 U.S. 461, 466-67 (1997).   Any error was harmless because the

defense’s voir dire, opening statement, and arguments, as well

as the court’s instructions at numerous points, eliminated any

threat of prejudice.   United States v. Wharton, 320 F.3d 526,

539 (5th Cir. 2003)(even if the prosecutor’s comments concerned

the defendant’s right to remain silent, the court’s instruction

eliminated the threat of prejudice); Battenfield v. Gibson, 236

F.3d 1215, 1224-25 (10th Cir. 2001)(comments about defendant’s

lack of testimony were harmless based on trial court’s

instructions to jury).

     The defense recognized not only on voir dire but also in

its opening statement1 that this case revolves around “the

credibility of one witness,” and “the issue of consent.”

During voir dire, both the trial counsel and defense counsel

asked the members whether they would draw an improper inference


1
  This Court recognized in United States v. Houser, 36 M.J. 392,
400 (C.M.A. 1993), and United States v. Franklin, 35 M.J. 311,
317 (C.M.A. 1992), that an opening statement opens the door for
rebuttal. See also United States v. McKeon, 738 F.2d 26 (2d
Cir. 1984)(prior opening statement was admissible evidence at
second trial).
United States v. Carter, No. 04-5002/AF


if Appellee did not testify.   The members all replied twice that

they would not draw such an adverse inference.   During voir

dire, the military judge reminded the members that the accused

is presumed to be innocent and the defense is not required to

introduce any evidence.

     After the Government rested, the defense said it had “one

witness to call . . . but [needed a] comfort break.”   There was

no mention of calling Appellee as a witness during the trial or

at any session pursuant to Article 39(a), Uniform Code of

Military Justice, 10 U.S.C. § 839(a)(2000), and the record

reveals no plan to call him.   At the Article 39(a) session after

that break, the defense withdrew its plan to call a witness who

was a friend of the victim.

     Except for the defense comment after the Government rested,

everyone from the start of the trial recognized that this trial

concerned “one witness,” and the members could draw inferences

based on the direct and cross-examination of that witness.

     During the closing instructions prior to argument, the

military judge reminded the members that the accused is presumed

innocent and the Government must prove the case beyond a

reasonable doubt.   He told the members that they must determine

the credibility of the witness.   He instructed the members a

number of times that the burden is upon the Government to prove

the case beyond a reasonable doubt and that this burden never


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United States v. Carter, No. 04-5002/AF


shifts to the accused.   Even after the defense argument, the

military judge reminded the members not to draw any adverse

inferences from the accused’s failure to testify.   There were no

objections.

     If there was error,2 it was harmless beyond a reasonable

doubt.   After their opening statements, both sides had a chance

to examine the victim vigorously.    The Government argued that

its position was supported by the victim’s testimony while the

defense argued that her testimony was inconsistent and

improbable.   To ensure no improper inferences were drawn from

Appellee’s failure to testify, the military judge twice informed

the members that they were not permitted to infer guilt from the

fact that the Appellee did not testify and properly placed the

burden on the Government to prove its case beyond a reasonable

doubt.   For all of these reasons, I conclude that if there was

error in this case, it was harmless beyond a reasonable doubt.

Thus, I respectfully dissent.




2
  The prosecution has the right to respond to defense counsel’s
argument and “right the scale.” United States v. Young, 470
U.S. 1, 13 (1985). See also United States v. Robinson, 485 U.S.
25, 32 (1988); Darden v. Wainwright, 477 U.S. 168 (1986).

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