                          UNITED STATES, Appellee

                                          v.

                  David E. GILLEY, Technical Sergeant
                       U. S. Air Force, Appellant

                                   No. 00-0559

                            Crim. App. No. 32877

________________________________________________________________

       United States Court of Appeals for the Armed Forces

                         Argued November 15, 2000

                         Decided November 15, 2001

BAKER, J., delivered the opinion of the Court, in which GIERKE and
EFFRON, JJ., joined. CRAWFORD, C.J., filed an opinion concurring in
part and in the result. SULLIVAN, S.J., filed an opinion concurring
in part and dissenting in part.

                                      Counsel

For Appellant: Major Jeffrey A. Vires (argued); Lieutenant
   Colonel James R. Wise and Lieutenant Colonel Timothy W. Murphy
   (on brief); Major Stephen P. Kelly and Major Thomas R. Uiselt.

For Appellee: Lieutenant Colonel Karen L. Manos (argued);
   Colonel Anthony P. Dattilo, Lieutenant Colonel Ronald A.
   Rodgers, and Captain Christa S. Cothrel (on brief); Lieutenant
   Colonel William B. Smith.


Military Judge:     Howard R. Altschwager
        THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Gilley, No. 00-0559/AF


     Judge BAKER delivered the opinion of the Court.

     On April 22-23, 1997, appellant was tried by a general

court-martial consisting of officer and enlisted members.

Appellant was charged with nine specifications of committing

indecent acts on his three stepchildren and four specifications

involving assault and battery of the same children, in violation

of Articles 134 and 128, Uniform Code of Military Justice, 10

USC §§ 934 and 928.    He was convicted of six specifications of

indecent acts and one specification of assault and battery.

Appellant was sentenced to a dishonorable discharge, confinement

for ten years, total forfeiture of pay and allowances, and

reduction to E-1.    The convening authority approved the adjudged

sentence.   The Air Force Court of Criminal Appeals affirmed.

     This Court granted review of the following issues:

                                      I.

            WHETHER THE MILITARY JUDGE COMMITTED PLAIN ERROR
            WHEN, CONTRARY TO MILITARY RULE OF EVIDENCE 301
            (f)(3), HE ADMITTED EVIDENCE THAT WHEN QUESTIONED
            BY INVESTIGATORS, APPELLANT ELECTED TO REQUEST
            COUNSEL AND ALLOWED TRIAL COUNSEL TO REFER TO
            APPELLANT’S REQUEST FOR COUNSEL IN HIS FINDINGS
            ARGUMENT AND FAILED TO PROVIDE A CURATIVE
            INSTRUCTION, THEREBY PERMITTING A VIOLATION OF
            APPELLANT’S RIGHT UNDER THE FIFTH AMENDMENT OF
            THE UNITED STATES CONSTITUTION AND ARTICLE 31 OF
            THE UNIFORM CODE OF MILITARY JUSTICE.




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United States v. Gilley, No. 00-0559/AF



                                 II.

            WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
            OF COUNSEL DURING THE POST-TRIAL PHASE OF HIS
            COURT-MARTIAL.

     For the reasons cited below, as to Issue I, we hold the

military judge did not commit plain error.     However, as to Issue

II, we hold appellant did not receive effective, post-trial

assistance of counsel.    As a result, we return this case for

further action.

                                FACTS

     Appellant was convicted of committing indecent acts on his

three stepchildren (ages ten to fourteen), and committing an

assault and battery on a stepdaughter.     The evidence showed that

appellant convinced the children to let him commit the indecent

acts by giving them money and telephone privileges, and letting

them spend the night with friends.      Appellant and his wife also

had two biological children, but neither of these children was

involved in the offenses.

     The defense theory of the case had several components.

First, that the sexual misconduct with his stepchildren never

happened.   According to appellant, his stepchildren were

controlled by their mother and had been coached to lie in order

to receive victim assistance money.     In those instances where

appellant did not deny the conduct at issue, he claimed that he



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United States v. Gilley, No. 00-0559/AF


and the children were just playing around and were not engaged

in sexual misconduct.    Second, regarding the assault and

battery, appellant claimed that he was administering fair

punishment.    Third, appellant attempted to discredit two of the

three investigators by implying that they fabricated appellant’s

oral confessions based on their prior knowledge of the

stepchildren’s allegations.    Appellant claimed the investigators

then put those fabrications in a written statement, which

appellant refused to sign because it contained fabrications.

                               ISSUE I

     The allegations arose in Loudoun County, Virginia.      On July

30, 1996, Donald Canham, a criminal investigator with the

Loudoun County Sheriff’s Office, with thirty years of

experience, interviewed appellant along with Special Agent (SA)

Washington of the Air Force Office of Special Investigations

(AFOSI) and Henry Stribling (a Loudoun County Social Services

Child Protection case worker).    Appellant was advised of his

Fifth Amendment rights and elected to cooperate and answer

questions.    When confronted with the allegations, appellant

initially said he had no recollection of the alleged acts.

Appellant later admitted to several of the allegations.

     Following this interview, Loudoun County authorities

released jurisdiction to the Air Force.    On August 1, 1996, SA

Richardson and SA Washington interviewed appellant at Bolling


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United States v. Gilley, No. 00-0559/AF


Air Force Base.   SA Washington did the questioning; SA

Richardson primarily took notes.       The interview began between

9:00 and 9:30 a.m.   By the time the interview concluded at

approximately 2:30 p.m., appellant admitted to acts involving

his stepson’s genitals, touching his stepdaughter’s breasts,

putting his hands down his stepdaughter’s pants and touching her

genitals, watching a stepdaughter masturbate with a vibrator,

and hitting a stepdaughter on the tongue with a spoon.       The

agents released appellant to go to lunch at 2:30 p.m.

     When he returned at 4:30 p.m., appellant was presented a

typed statement that was based on the notes taken by SA

Richardson.   According to the investigators’ testimony, without

reading this statement, appellant refused to sign it, stating

that he was seeking legal counsel.

     At trial, during his opening statement, trial defense

counsel stated:

          You will hear that the Loudoun County
          Sheriff’s Office, as well as members of the
          AFOSI detachment, interviewed Sergeant
          Gilley; that they read him his rights on two
          occasions; and on those occasions, he waived
          his rights and answered questions and he
          made statements to those agents.

          Now you won’t see any sort of evidence as
          far as videotape or audiotape as to what
          Sergeant Gilley said. The investigators
          will tell you what he said, and you are
          asked to believe that. But what you will
          not see is any sort of written statement.
          You will hear testimony that a written


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United States v. Gilley, No. 00-0559/AF


            statement was prepared. It was prepared by
            the OSI agents and, when they presented it
            to Sergeant Gilley to sign, Technical
            Sergeant Gilley, he refused because the
            words and acts and deeds in that statement
            were not true. They were false.

     The first witness called by the Government was Sheriff’s

Investigator Canham.   In cross-examining him, defense counsel

established that appellant was advised of his rights, was

cooperative, and that the interview was not taped.       Next, the

Government called SA Richardson.       On cross-examination trial

defense counsel established the length of the interview, and

that SA Richardson prepared the typewritten statement, followed

by this question and answer:

            Q:   Okay, and when that statement was presented to
                 Sergeant Gilley, he refused to sign that, is that
                 not true?

            A:   That’s correct, Sir.     He said he wished to seek
                 counsel.

(Emphasis added.)   Defense counsel did not object or indicate

that the witness’s statement was non-responsive.

     On redirect examination, the trial counsel asked SA

Richardson questions that rebutted the notion that the OSI

agents had concocted a confession that was not true.       Then the

following colloquy took place:

     Q:      And defense counsel asked you if he asked for counsel
             at the time before signing the written statement, is
             that correct?

     ADC:    Objection, Your Honor, that was not my question.


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United States v. Gilley, No. 00-0559/AF



     MJ:     Overruled.    The question, counsel?

     WIT:   Could you repeat the question?

     MJ:     You were making a statement, so now ask a question.

     ATC:    Yes, Your Honor. Prior to the end of the interview
             when the accused asked for counsel, did he ask for
             counsel at any time prior to that?

     WIT:   No, sir.

(Emphasis added.)      Again, defense counsel did not object to this

reference to appellant’s request for counsel.

     SA Richardson was followed to the stand by SA Washington,

who, on direct, talked about the admissions appellant made

during the course of the interview.      On direct examination,

trial counsel asked no questions about appellant’s refusal to

sign the draft statement or his request for counsel.      On cross-

examination, defense counsel elicited from SA Washington that

the reason for the August 1 interview was to obtain a confession

from appellant.    Following questions about SA Richardson's

preparation of the statement, the following exchange took place:

     Q:     And when that statement was given to Sergeant Gilley,
            he refused to sign it?

     A:     Sergeant Gilley didn't look at the statement.     He just
            requested legal.

(Emphasis added.)      Again, counsel did not object to the

witness’s response.




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United States v. Gilley, No. 00-0559/AF


     On redirect examination, the assistant trial counsel

revisited the point:

   Q:     Agent Washington, you mentioned that, in answer to
          defense counsel's questions, that when Tech Sergeant
          Gilley came back from lunch he didn't even read the
          statement that Agent Richardson had prepared and he
          immediately asked for counsel.

   A:     Yes.

   ADC: Objection, Your Honor.

   MJ:    Overruled.

(Emphasis added.)

        Also on redirect examination, in questioning SA Washington

as to whether a rights advisement was provided after the

preparation of the statement, the following exchange took place:

     Q:      So when the typed document is then given to the
             accused, is he then read his rights again?

     A:      No.

     Q:      Why not?

     A:      In this -- in Tech Sergeant Gilley's case, we got
             into the interview room and immediately when we did
             get into -- got into the room, he turned around and
             said he wants legal counsel.

     Q:    Okay, so that is this particular case. But in terms
           of your ordinary procedures, would you read rights
           again?

     A:    If that was in the expanded time as such before we
           went into it, he may have been, he would be advised,
           “You are still under rights advisement”.

     Q:    Okay. Now I just want to make clear, did the accused
           read the typed statement?



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United States v. Gilley, No. 00-0559/AF


     A:   No, sir.

(Emphasis added.)    Defense counsel did not object.

     Finally, during his closing argument on findings, trial

counsel argued:

      Then around [2:30 p.m.] they allowed—the accused goes to
      lunch. So obviously, this is not the spotlight on the
      suspect where they are grilling him. They let him go to
      lunch and they are under the impression that he is going
      to come back because they discuss writing a statement. He
      is going to come back and write a statement out or sign a
      statement from the notes that the agents wrote and wrote
      it out in narrative form. Well, he comes back some two
      hours later. Remember that, and that is important because
      two hours later what does he have time to do? He has time
      now to realize, “Gee, I’ve said all these statements and
      my rights were advised to me.” Members of the court, you
      are allowed to use your common sense. What are some of
      those rights that are advised? Anything you say can and
      will be used against you in a court of law.

      So he comes back two hours later, doesn’t even look at the
      statement. Despite defense’s cross-examination of the
      agent saying, “He didn’t sign that statement because
      anything in that statement wasn’t true. You wrote that
      statement, Agent so and so, didn’t you?” “Sir, he never
      even looked at the statement. He asked for his attorney.”
      Remember that Constitutional requirement that we have, if
      someone asks for an attorney? They couldn’t force him to
      sign that statement. They weren’t out to get him. And we
      will speak about that theory a little later also.

                                      * * *

      Their [sic] other theme here and theory was that the
      investigators are just lying. Remember the experience
      that these agents had. You had Inspector Canham who had
      over thirty years with Child Protective Services. Do you
      think he has seen a few cases before? You had Special
      Agent Richardson who works for the DEA. You had Agent
      Washington who works for the OSI. These three guys are
      coming in here and lying just to get this guy? That is
      another thing that the defense wants you to believe here.
      There is a conspiracy to get the accused by the agents.


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United States v. Gilley, No. 00-0559/AF


      That is putting their credibility in issue here. And
      specifically, I guess the two main points they harped on
      was the fact that, on a form that Agent Washington signed,
      he said he was at an interview when it was just that he
      was being briefed by it and he signed for receipt of
      Inspector Canham’s notes and briefings and then he went to
      an interview with him. It is kind of a standard operating
      procedure. He said, “Yeah, I probably shouldn’t have done
      that, but no, I wasn’t there.” Even Inspector Canham said
      he wasn’t there at first. He was there, but not in the
      interviews. He was there, but he did not sit in on the
      interviews.

      If they were to have had a conspiracy, members of the
      court, go back in your deliberations and think. These
      three agents, these law enforcement agents who had over
      sixty years of experience in law enforcement, don’t you
      think they could have come up with more egregious acts
      than what is charged here? Don’t you think we could have
      had maybe a little penetration or oral sodomy or something
      like that? If they were really out to get this guy, if
      they really wanted to lie and make sure it stuck, why not
      add a few more things? There is no conspiracy here. You
      have the charges in front of you.

      Again, defense counsel did not enter an objection to trial

counsel’s argument.   In his closing argument on findings,

defense counsel argued:

      The purpose of the second interview was to obtain a
      confession. And they typed up something for Sergeant
      Gilley to sign and Sergeant Gilley wouldn’t sign it. They
      say Sergeant Gilley wouldn’t read it, he decided to invoke
      his rights. But your common sense and your knowledge of
      the ways of the world say that if somebody types something
      up for you to sign, you read it and if it is not true, you
      don’t sign it. And the investigator said that what they
      typed was a synopsis of what they testified about. So
      when they put that in front of Sergeant Gilley, he refused
      to sign it because it was not true.

      In his rebuttal argument on findings, trial counsel again

touched on appellant’s invocation of his right to counsel:



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United States v. Gilley, No. 00-0559/AF


       They said in--their argument was the second interview was
       out to get a confession. If they wanted to get a
       confession, why let the guy go to lunch for two hours?
       Why let him go to lunch if you are going to get a
       confession? Why not just type it up while he is there and
       have him sign it there and then go to lunch? You saw
       Agent Washington. This is not the Gestapo. You saw him
       and he testified and you get to judge his honesty. Why
       not just keep him there and have him sign a statement?
       Order him or something like that. They can’t because,
       when he came back, he requested counsel and they can’t do
       anything further after that, members of the court. That
       is why they didn’t get it.

       The military judge instructed the members as follows:             “The

accused has an absolute right to remain silent.           You will not

draw any inference adverse to the accused from the fact that he

did not testify as a witness.        The fact that the accused has not

testified must be disregarded by you.”          The military judge did

not instruct the members about the right to counsel.

                                  ISSUE II

      Prior to taking action in appellant's case, the convening

authority properly afforded appellant the opportunity to submit

clemency matters under RCM 1105 and 1106, Manual for Courts-

Martial, United States (2000 ed.).1 The convening authority

received twelve matters from defense counsel and appellant.              The

defense counsel's 1105 petition informed the convening authority

that his client had been unjustly convicted, but also asked that


1
  All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial, unless otherwise indicated. RCM 1105(b) was
amended after appellant’s court-martial, but the amendment was minor and has
no impact on the content of this opinion.



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United States v. Gilley, No. 00-0559/AF


the confinement be reduced to four years and be served at the

Charleston brig, where there was a sexual offender treatment

program (defense counsel attached a syllabus of that program to

his 1105 petition).

     The general theme of appellant’s clemency package was that

appellant was wrongfully convicted and should be granted

clemency.   Enclosures 3 and 4 went beyond the general theme and

included negative comments on the Air Force judicial system, as

well as pointed criticisms of specific individuals.

      Enclosure 3 was a letter from appellant’s mother.    In this

letter, addressed to the convening authority, she stated that “I

can’t believe the Air Force has turned on [appellant] when he

needs them,” and “If you can’t see through this, it’s

unbelievable.”   Additionally, in commenting on the

appropriateness of appellant’s sentence, she stated, “You know

his life is ruined – which it should be if he was guilty.”

     Enclosure 4 was a letter from appellant’s father.    This

letter is a vitriolic attack on the Air Force and its judicial

system.   It reads, in pertinent part, as follows:

      In my opinion David is getting a raw deal. No man like
      David, that has served his country and so dedicated to his
      job as an Air Force air controller should have to go
      through anything like this. . . .


      . . . .The whole damned thing was a kangaroo court. David
      was guilty before he ever went to court and the military
      helped it along. They saw a man with a good rank, 18


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United States v. Gilley, No. 00-0559/AF


      years of service, never been in trouble, and close to
      retirement and a way to take it away. It would save the
      Government a lot of money and make the Air Force look
      good. That was the plan and the Air Force lawyers, the
      military jury, the judge, the Air Force high ranks wanted
      it ended in two days. They wanted David put away so all
      of them could look good. All they are [sic] a bunch of
      low-lifed [sic] bastards as far as I’m concerned. All
      they want was to get it over so they could go home. I
      overheard the jurors talking in the hallway. They knew
      the kids were coached and lying, but wanted it over. Man,
      did that make the Air Force look good. They saved the
      Federal Government a lot of money. That’s the game plan.
      Put David Gilley away for ten years, take his rank and
      retirement and brand him for life as dishonorable. It’s
      bad enough to lose your family and be lied about and be
      branded for life. But to spend 10 years in prison, lose
      your career, your personal belongings and never be able to
      see your two children that belong to you again. That’s
      what a person gets when you marry a lying tramp whore who
      wouldn’t know a decent person if they kicked her in the
      ass and give [sic] her a new set of brains, which she
      doesn’t have.

                              * * *

          In conclusion, there isn’t much I can say. I suppose
      our efforts to get David’s charges appealed or overturned
      will be ignored by the Air Force as well as the U.S.
      Government. I know one thing for sure it has ruined my
      life forever, as well as David’s. I no longer have
      respect for the armed forces and the federal government
      for the way they are treating their people. The American
      flag no longer flies on the flagpole in my front yard (I
      took the pole down) – like it used to. I no longer care
      what happens to our nation or our government. After what
      the Air Force has done to my son and my family I lost
      faith in about everything. Sometimes I think God has
      turned his back on me. Tears come to my eyes everyday and
      night without warning. Sometimes at night it haunts me
      with visions of a man dressed in orange coveralls with his
      hands handcuffed behind his back and his ankles shackled.
      That’s the price an innocent man pays for serving his
      country. I hope you low-lifed [sic] bastards along with
      that lying no good whore and her bastard kids, that lied
      about David, enjoy your freedom now, and burn in hell
      later. Everytime [sic] something bad happens and you


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United States v. Gilley, No. 00-0559/AF


      wonder why, then you can sit back and say God forgive me,
      I’m sorry I was part of a plan to convict an innocent man
      and make his family suffer for the rest of their life.
      You will bear the heavy cross of burden and shed the tears
      like I do. Everyday for the rest of your life as I will
      be doing. No man deserves punishment like this unless
      he’s a killer on death-row. I think when the military or
      the government does something like this their [sic]
      nothing but a chicken-shit bunch that should have to face
      the firing squad because they don’t know what justice is.
      Those dumb ass Air Force judges, lawyers, and jurors all
      thrown together wouldn’t make one good civilian lawyer.
      In civilian life they laugh at the dumb asses. I wish I
      was a rich man, I’d shove all this up their ass. As I see
      it, it’s entirely up to you to grant David an appeal or
      reduce his sentence. Personally I think he has suffered
      enough. If not then maybe you’ll enjoy being like me,
      having flashbacks and shedding tears in the middle of the
      night and living with it day by day.

     The twelfth and final enclosure is a copy of an

electronically mailed (e-mail) statement from appellant's

brother attacking the Air Force legal system and appellant's

defense counsel as incompetent.

      No affidavit was submitted by the defense counsel, but

appellant in his affidavit stated, “Neither of my trial defense

counsels discussed with me the content of my father’s clemency

letter other than to tell me that there were some curse words in

it and that they were asking him to rewrite it.   I did not

direct that my father’s clemency letter be included in my

clemency package.”

                           DISCUSSION

      It is well settled that the Government may not use a

defendant’s assertion of his Fifth Amendment rights as


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United States v. Gilley, No. 00-0559/AF


substantive evidence against him.      Griffin v. California, 380

U.S. 609, 614 (1965); see also Baxter v. Palmigiano, 425 U.S.

308, 319 (1976); Lakeside v. Oregon, 435 U.S. 333, 338 (1978);

United States v. Ruiz, 54 MJ 138 (2000).     Violations of the

Griffin rule are subject to harmless error review.     Chapman v.

California, 386 U.S. 18 (1967).

      Mil. R. Evid. 301(f)(3), Manual, supra, provides:

      The fact that the accused during official questioning and
      in exercise of rights under the Fifth Amendment to the
      Constitution of the United States or Article 31, remained
      silent, refused to answer a certain question, requested
      counsel, or requested that the questioning be terminated
      is inadmissible against the accused.

The Drafters’ Analysis of this rule states that it follows

United States Supreme Court decisions.     A22-7, Manual, supra;

see United States v. Hale, 422 U.S. 171 (1975)(An accused’s

silence during police interrogation lacked significant probative

value so that any reference to his silence in cross-examination

in an attempt to impeach his alibi carried with it an

intolerably prejudicial impact entitling him to a new trial.);

Doyle v. Ohio, 426 U.S. 610 (1976)(Use for impeachment purposes

of an accused’s silence at the time of arrest and after

receiving Miranda warnings violates due process.).

      Hale and Doyle addressed government comments on the

accused’s right to remain silent.      This case implicates comments

on the accused’s right to counsel.     The analysis, however, is



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United States v. Gilley, No. 00-0559/AF


parallel to that regarding the right to remain silent; both

rights flow from the Fifth Amendment.     See United States v.

Daoud, 741 F.2d 478, 480 (1st Cir. 1984)(analysis for comments

regarding right to remain silent is the same as for right to

counsel); United States v. Kallin, 50 F.3d 689, 693 (9th Cir.

1995)(right to counsel included in Miranda warnings and

therefore carries implicit assurance that invocation carries no

penalties).

      We also recognize the Supreme Court’s holding that the

Government is permitted to make “a fair response” to claims made

by the defense, even when a Fifth Amendment right is at stake.

United States v. Robinson, 485 U.S. 25, 32 (1988); see also

Doyle, supra at 619-20 n.11 (“It goes almost without saying that

the fact of post-arrest silence could be used by the prosecution

to contradict a defendant who testifies to an exculpatory

version of events and claims to have told the police the same

version upon arrest.   In that situation the fact of earlier

silence would not be used to impeach the exculpatory story, but

rather to challenge the defendant’s testimony as to his behavior

following arrest.”); Walder v. United States, 347 U.S. 62, 65

(1954)(The availability of an objection to the affirmative use

of improper evidence does not provide the defendant “with a

shield against contradiction of his untruths.”).    Robinson

addresses the prohibition against prosecutorial comment upon the


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United States v. Gilley, No. 00-0559/AF


failure to testify, which is a corollary of the right to remain

silent.     Accordingly, the analysis in Robinson applies to this

case.

        The defense counsel in Robinson, in closing, argued

several times that the Government did not allow the defendant,

who did not testify, to explain his side of the story.

“Following this closing and out of the presence of the jury, the

prosecution objected to the remarks of defense counsel and

contended that the defense had ‘opened the door.’”    485 U.S. at

28.   The trial judge agreed.   In rebuttal, the prosecutor

remarked that the defendant “could have taken the stand and

explained it to you, anything he wanted to.    The United States

of America has given him, throughout, the opportunity to

explain.”    Id.   “Defense counsel did not object to this closing

and did not request a cautionary instruction.    Nonetheless, the

court included in the jury instruction the admonition that ‘no

inference whatever may be drawn from the election of a defendant

not to testify.’”    Id. at 28-29.

        Robinson held that the prosecutor’s statement did not

violate the defendant’s Fifth Amendment rights, because the

prosecutor’s reference to the defendant’s opportunity to testify

“did not treat the defendant’s silence as substantive evidence

of guilt, but instead referred to the possibility of testifying

as one of several opportunities which the defendant was


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United States v. Gilley, No. 00-0559/AF


afforded, contrary to the statement of his counsel, to explain

his side of the case."   Id. at 32.   Moreover, Robinson held that

where a prosecutor’s reference is a “fair response to a claim

made by defendant or his counsel,” there is no violation of the

Fifth Amendment privilege against self-incrimination.   Id.

        In order to determine whether or not comments are fair,

“prosecutorial comment must be examined in context.”    Id. at 33,

citing Lockett v. Ohio, 438 U.S. 586 (1978)(Prosecutor’s

repeated remarks that the evidence was uncontradicted were not

improper because defense counsel focused the jury’s attention on

silence by outlining the contemplated defense during opening

statement and by stating to the court and jury that the

defendant would be the “next witness.”).   Such analysis invokes

the “invited response” or “invited reply” rule.   United States

v. Young, 470 U.S. 1, 11 (1985), citing Lawn v. United States,

355 U.S. 339 (1958).   In reviewing whether an appellant was

deprived of a fair trial by such comments, the question an

appellate court must resolve is whether, “viewed within the

context of the entire trial, ... defense counsel’s comments

‘clearly invited the reply.’”   Id., quoting Lawn, supra at 360

n.15.

        There are two aspects to the first granted issue, i.e.,

whether the military judge committed plain error: (1) by

admitting evidence that when questioned by investigators,


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United States v. Gilley, No. 00-0559/AF


appellant elected to request counsel, and (2) by allowing trial

counsel to refer to appellant’s request for counsel in his

closing argument and by failing to provide a curative

instruction.

     1. Did the military judge commit plain error by admitting
     evidence that when questioned by investigators, appellant
     elected to request counsel?

      Appellant’s trial strategy, beginning with his defense

counsel’s opening argument, was to discredit two of the three

investigators by implying that they fabricated appellant’s oral

statements based on their prior knowledge of his stepchildren’s

allegations.   Appellant claimed the investigators then put those

fabrications into a written statement, which appellant refused

to sign.

      Defense counsel initially elicited appellant’s request for

counsel during his cross-examination of SA Richardson and SA

Washington.    Consistent with the defense theory of the case,

defense counsel asked whether appellant refused to sign the

statement.    SA Richardson testified that appellant refused to

sign the statement and requested counsel.   SA Washington

testified that appellant “didn’t even read the statement” and

“immediately asked for counsel.”

      Faced with an allegation that the Government fabricated

important evidence, not surprisingly trial counsel returned to

these points of rebuttal on redirect examination.    Consistent


                                 19
United States v. Gilley, No. 00-0559/AF


with the prosecution’s theory of the case, trial counsel asked

agents Richardson and Washington to recount the close of

appellant’s interview.   Again, they stated that appellant

declined to sign the statement without reading it and that

appellant requested counsel.

      Defense counsel did not object to these responses during

cross-examination; however, on redirect, defense counsel

objected without specifying the basis for his objection.     In the

absence of an objection, issues of admissibility of evidence are

waived, and we will grant relief only if the admission of such

evidence constitutes plain error.    United States v. Powell, 49

MJ 460, 462-64 (1998).

      Appellant argues that the military judge committed plain

error by admitting the testimony of agents Richardson and

Washington on cross-examination and redirect.   Had the

Government first introduced this evidence, this would be a

different case.   See United States v. Riley, 47 MJ 276 (1997).

However, as recounted above, defense counsel opened the door to

rebuttal by attacking the veracity of the agents, thus inviting

a response from those same agents suggesting an alternative

theory as to why appellant refused to sign the statement.

Clearly, the agents’ testimony that appellant did not read the

statement was fair rebuttal.   Arguably, reference to appellant’s

request for counsel also fairly rebutted the defense theory of


                                20
United States v. Gilley, No. 00-0559/AF


the case by offering an alternative explanation as to why

appellant did not sign the statement, i.e., appellant wanted a

lawyer to review the statement before signing it, whether or not

he read it.    However, appellant might also have logically

requested a lawyer when faced with a false statement, putting

his request outside the scope of fair rebuttal.            We need not

resolve this question.      In any event, appellant’s request for

counsel was not used as substantive evidence of guilt against

him.   Whether it was error or not to allow the testimony, given

the context in which the issue arose here, we are convinced that

there was no material prejudice to appellant’s substantial

rights.   See Art. 59(a), UCMJ, 10 USC § 859(a).2

       2. Did the military judge commit plain error by allowing
       trial counsel to refer to appellant’s request for counsel
       in his findings argument and by failing to provide a
       curative instruction?

       More difficult are the subsequent references to

appellant’s request for counsel in trial counsel’s closing

argument, in the absence of appropriate instruction to the

members that such information was only relevant to the members’

consideration of appellant’s claim that the unsigned interview

statement was false.

       In his closing argument, trial counsel directly referenced

appellant’s invocation of his rights on three occasions.             First,

2
  Having found no material prejudice to appellant’s substantial rights, we
need not address Senior Judge Sullivan’s attempt to revisit Powell.


                                     21
United States v. Gilley, No. 00-0559/AF


he argued that “[appellant] has time now to realize, ‘Gee, I’ve

said all these statements and my rights were advised to me.’

Members of the court, you are allowed to use your common sense.

What are some of those rights that are advised: Anything you say

can and will be used against you in a court of law.”     Second, he

argued, “Remember that Constitutional requirement that we have,

if someone asks for an attorney?     They couldn’t force him to

sign that statement.   They weren’t out to get him.”    Finally, on

rebuttal, he argued that the reason SA Richardson and SA

Washington did not order appellant to stay and sign a statement

was because appellant “requested counsel and they can’t do

anything further after that, members of the court.     That is why

they didn’t get it.”

      By contrast, defense counsel argued, consistent with his

theory of the case, that appellant refused to sign the written

statement because it was not true.     He also referred to trial

counsel’s argument, stating:   “They say Sergeant Gilley wouldn’t

read it, he decided to invoke his rights.”     Defense counsel

argued that that scenario did not make sense, but that “common

sense and your knowledge of the ways of the world say that if

somebody types something up for you to sign, you read it and if

it is not true, you don’t sign it.”

      In reviewing the actions of the military judge, we must

ask whether, given the defense theory of the case, trial


                                22
United States v. Gilley, No. 00-0559/AF


counsel’s comments were fair.   Robinson, 485 U.S. at 32.     Here,

the defense counsel focused the jury’s attention on why

appellant refused to sign the written confession, beginning with

his opening statement.   The defense contention was that

appellant read the statement but refused to sign it because it

was fabricated by SA Richardson and SA Washington.   As we have

previously noted, the defense theory could have been

contradicted by testimony from the agents that appellant refused

to sign it without even reading it.   Nonetheless, both agents

added to their testimony that at the same time, appellant

invoked his right to counsel.   Because appellant failed to

object to the testimony, and since the testimony contradicted

appellant’s claim that he read the statement but refused to sign

it because it was full of lies, we find that defense counsel

opened the door to the use of this testimony for that limited

purpose.

      Defense counsel’s mention of appellant’s counsel election

during his closing argument was consistent with his theme and

consistent with the limited purpose for which we find the door

to have been opened.   On the other hand, the repeated references

to appellant’s request for counsel could have reflected

negatively upon the invocation of those rights by leading the

members to attach a significance to such invocation that went

beyond fair rebuttal of appellant’s allegation.


                                23
United States v. Gilley, No. 00-0559/AF


      Nonetheless, since defense counsel did not object or

request a curative instruction, we will grant relief only if the

military judge’s failure to instruct sua sponte was plain error.

See United States v. Southwick, 53 MJ 412, 414 (2000); United

States v. Boyd, 55 MJ 217, 222 (2001) (“Because the defense did

not request an instruction on the impact of a punitive discharge

on temporary disability retirement, we will grant relief only if

the military judge’s failure to instruct sua sponte was plain

error.”); Powell, 49 MJ at 464; United States v. Fisher, 21 MJ

327 (CMA 1986).

      We noted in United States v. Carpenter, 51 MJ 393, 396

(1999), that this Court, in a variety of contexts, “has

commented that it is improper for a prosecutor to ask the court

members to infer guilt because an accused has exercised his

constitutional rights.”   In United States v. Toro, 37 MJ 313,

318 (CMA 1993), this Court held that it was improper to comment

on the exercise of the right to remain silent.    Although closely

related, this Court has not specifically ruled on a prosecution

argument that an accused invoked his right to counsel.

      As we noted in Carpenter, “the lack of defense objection

is relevant to a determination of prejudice” because the lack of

a defense objection is “’some measure of the minimal impact’ of

a prosecutor’s improper comment.”    51 MJ at 397 (citation

omitted).   In addition to the lack of objection, in this case,


                                24
United States v. Gilley, No. 00-0559/AF


the overwhelming evidence of record demonstrated appellant’s

guilt.    Although trial counsel’s argument tied appellant’s

exercise of his right directly to his exculpatory story (that he

did not sign the written statement because it was full of lies

fabricated by SA Richardson and SA Washington), this exculpatory

story was implausible for several reasons.    First, it was

premised on the collaboration in a falsity by three

investigators from two different jurisdictions.    The first

investigator was a civilian, and only when the case was turned

over to the military did SA Richardson and SA Washington become

involved.    Second, appellant admitted to committing the offenses

of which he was convicted, both to the civilian investigator and

then later to SA Richardson and SA Washington.    Third, the

admissions were directly supported by the testimony of

appellant’s wife and stepchildren.

         Although we are troubled by trial counsel’s repeated

references to appellant invoking his right to counsel without

objection and without instruction, based upon the overwhelming

evidence of appellant’s guilt and the implausibility of

appellant’s exculpatory story, we hold that there was no

material prejudice to appellant’s substantial rights in this

case.




                                  25
United States v. Gilley, No. 00-0559/AF


                               ISSUE II

         Appellant argues that he received ineffective assistance

of counsel in the post-trial phase when his defense counsel

submitted highly inflammatory letters to the convening

authority.    The Government argues that the letters were simply

impassioned pleas for corrective action that criticized the

prosecutors, not the convening authority, and continued the

defense trial strategy by maintaining appellant’s children and

wife were lying and that he was innocent of the charges.

         The Sixth Amendment guarantees the right to effective

assistance of counsel.    In the military, this right extends to

assistance in the preparation and submission of post-trial

matters.    See United States v. Fluellen, 40 MJ 96, 98 (CMA

1994).

         We have adopted the Supreme Court’s test for effectiveness

of counsel articulated in Strickland, as well as the presumption

of competence announced in United States v. Cronic, 466 U.S.

648, 658 (1984).    United States v. Grigoruk, 52 MJ 312, 315

(2000), citing United States v. Scott, 24 MJ 186, 188 (CMA

1987).    We have adopted a three-pronged test to determine if the

presumption of competence has been overcome:

     (1) Are appellant’s allegations true; if so, “is there a
     reasonable explanation for counsel’s actions”?




                                  26
United States v. Gilley, No. 00-0559/AF


     (2) If the allegations are true, did defense counsel’s
     level of advocacy fall “measurably below the performance. .
     . [ordinarily expected] of fallible lawyers”? and

     (3) If a defense counsel was ineffective, is there “a
     reasonable probability that, absent the errors,” there
     would have been a different result.

Id., quoting United States v. Polk, 32 MJ 150, 153 (CMA 1991).

      Responsibility for tactical and strategic post-trial

decisions are within the control of counsel.    Counsel has the

responsibility to “make an evaluative judgment” on what items to

submit to the convening authority, and to so advise his client.

United States v. MacCulloch, 40 MJ 236, 239 (CMA 1994).      As we

noted in MacCulloch, “One of the last best chances an appellant

has is to argue for clemency by the convening authority.”      Id.

      In this case, counsel submitted twelve items to the

convening authority.    The letter from appellant’s mother

arguably undercut appellant’s plea for clemency.    The letter

from appellant’s father was acerbic.    It was a scathing diatribe

directed toward trial counsel, trial defense counsel, the

members, the judge, and the convening authority, to whom the

letter was addressed.    The e-mail statement from appellant’s

brother echoed the theme of appellant’s father’s letter.

      It is impossible to imagine any possible clemency arising

from appellant’s father’s statement, “I hope you low-lifed

bastards along with that lying, no good whore and her bastard

kids, that lied about [appellant], enjoy your freedom now, and


                                 27
United States v. Gilley, No. 00-0559/AF


burn in hell later."    Likewise, it is impossible to put a

positive spin on his father’s statements, such as, “I think when

the military or the government does something like this their

[sic] nothing but a chicken-shit bunch that should have to face

the firing squad because they don’t know what justice is.     Those

dumb ass Air Force judges, lawyers, and jurors all thrown

together wouldn’t make one good civilian lawyer.”     Res ipsa

loquitor.

      We expect that a convening authority in the exercise of

his clemency power will anticipate and deal professionally with

the heartfelt disappointment and confusion of a family trying to

comprehend the trial, conviction, and sentencing of a son or

daughter.   However, letters that go far beyond disappointment

and confusion and contain a scathing denouncement of the system

and its participants cannot be viewed as helpful to an

appellant’s request for clemency.     The prejudicial impact of

appellant’s father’s letter was compounded by appellant’s

brother’s letter and his mother’s letter.     Appellant’s affidavit

mentioned only that his defense counsel discussed with appellant

the content of his father’s letter and that they were asking his

father to rewrite it.   We are concerned about the cumulative

impact of all three letters, but especially with the content of

appellant’s father’s letter which, even if rewritten, was

inappropriate.


                                 28
United States v. Gilley, No. 00-0559/AF


      In this case, appellant was sentenced to a dishonorable

discharge, confinement for ten years, and associated penalties.

Appellant petitioned the convening authority to disapprove his

sentence and allow his administrative discharge.   Alternatively,

counsel requested reduction in confinement to four years and

designation of the Charleston brig as the place of confinement,

which would allow appellant to “serve a lengthy prison sentence

without imprisonment in the US Disciplinary Barracks at Ft.

Leavenworth, KS.”   Counsel also argued that it would allow

appellant access to a superior sex offender program run by the

Air Force at the Charleston brig.    The convening authority did

not grant appellant any clemency.    By attaching these letters,

trial defense counsel may have dashed appellant’s “last best

chance” for sentencing relief or for assignment to Charleston

for sex offender treatment.

      Addressing the three-pronged Polk test to determine

competence, we answer all three questions in the affirmative.

We find that trial defense counsel in this case failed to make

an evaluative judgment on what items to submit to the convening

authority.   We can find no reasonable explanation for counsel’s

inclusion of these letters.   We also find the inclusion of these

letters to fall “measurably below the performance ...

[ordinarily expected] of fallible lawyers.”   Finally, while we

cannot know with certainty what relief, if any, the convening


                                29
United States v. Gilley, No. 00-0559/AF


authority might have granted, there is a reasonable probability

that absent the admission of these letters, there would have

been a different result.      As in MacCulloch, the submission to

the convening authority of the contempuous and abusive letter

from appellant’s father “effectively negat[ed] any plea for

clemency.”    40 MJ at 240.   Thus, at the very least, removal of

these letters would have resulted in a meaningful clemency

hearing.

         Accordingly, we hold that appellant was denied effective

assistance of counsel during the post-trial phase of his court-

martial.

                                DECISION

            The decision of the United States Air Force Court of

Criminal Appeals and the convening authority’s action are set

aside.    The record of trial is returned to the Judge Advocate

General of the Air Force for submission to an officer exercising

general court-martial jurisdiction over appellant for

consideration of a new post-trial clemency petition and staff

judge advocate’s recommendation, and action.     Thereafter, the

record will be returned to the Court of Criminal Appeals for

further review, and then Article 67, UCMJ, 10 USC § 867, shall

apply.




                                   30
United States v. Gilley, No. 00-0559/AF


CRAWFORD, Chief Judge (concurring in part and in the result):

      The right to counsel1 and the right not to incriminate

oneself2 are hallmarks of our adversary system.           But a defendant

may not use the shield of these constitutional rights to prevent

the Government from contradicting the untruths and reasonable

inferences that the factfinders could logically draw from the

defense cross-examination.3

      The Government may not introduce as substantive evidence in

the first instance that a person invoked his or her right to

silence and/or right to counsel.4        However, these invocations may

be used to impeach any witness, including a defendant.

Moreover, when the defendant opens the door, the Government may

forcefully rebut the evidence and its reasonable inferences.5

Remaining silent in the face of an accusation or remaining

silent by invoking one’s right without any explanation at the

time is evidence of guilt.       There may be reasonable explanations

for one’s silence -- “The statement is false”; “I don’t trust

you”; “I want to think about it”; “I want to know what others

have said before I make a statement.”          However, these




1
  “In all criminal prosecutions, the accused shall enjoy the right ... to have
the Assistance of Counsel for his defence.” U.S. Const. amend. VI.
2
  “No person shall ... be compelled in any criminal case to be a witness
against himself....” Id. at amend. V.
3
  See, e.g., United States v. Havens, 446 U.S. 620 (1980).
4
  See, e.g., Griffin v. California, 380 U.S. 609 (1965).
5
  See Havens, supra.
United States v. Gilley, No. 00-0559/AF


explanations do not undercut the inference that silence, without

explanation, is evidence of guilt.

     On cross-examination, defense counsel brought out that

appellant invoked his right to counsel because of the untruths

in the typewritten statement.   The Government had a right to

rebut this assertion, to include arguing its falsity.   For this

reason, I do not agree with the rationale of the majority, but

concur in the result.

     Appellant, like the defendant in United States v. Beason,

220 F.3d 964 (8th Cir. 2000), sought to take advantage of a

constitutional right and use it as a sword.   The defense in

Beason sought to take advantage of the rule in Bruton v. United

States, 391 U.S. 123 (1968).    This rule provides that at a joint

trial, co-defendant A’s confession, which implicates co-

defendant B, is not admissible against B.   In limine

instructions would be inadequate because co-defendant B cannot

test through cross-examination the evidence set forth in A’s

confession.

     In Beason, the Government introduced evidence that Beason

was the kingpin who was selling drugs from his truck while

hiding hundreds of thousands of dollars in its inside

compartments.   Like most drug kingpins, Beason had some runners.

One of these was an individual named Washington.   Defense

counsel asked FBI Agent Hempen whether Washington, who had a


                                  2
United States v. Gilley, No. 00-0559/AF


prior drug arrest, was the source of the information concerning

where the money was hidden in the truck.   The Government argued

and the trial judge agreed that this question opened the door

for a different agent to testify about other information

provided by Washington -- information that revealed the truck’s

ownership, how the money was collected, how the money was given

to Washington, and who was giving directions concerning where to

hide it in the truck.   On appeal, the Eighth Circuit reasoned:

          Beason’s theory of defense at trial was that
          Washington orchestrated the events in question, while
          Beason was an unknowing bystander. We find defense
          counsel’s questioning, stressing not only that
          information regarding the hidden currency did not come
          from Beason, but also that it came from Washington, an
          individual with a prior drug record, did more than
          simply dispel an assumption that Beason provided the
          information. It could have created a misleading
          inference to the jury that Washington was the “bad
          guy.”

220 F.3d at 968.

     Likewise, in United States v. Havens, 446 U.S. 620 (1980),

the Court prohibited the defense from using a constitutional

right as a sword in order to prevent the Government from

contradicting the defense theory of the case.   The Court

recognized that in Walder v. United States, 347 U.S. 62 (1954),

Harris v. New York, 401 U.S. 222 (1971), and Oregon v. Hass, 420

U.S. 714 (1975), impeachment with illegally obtained evidence

was permitted because of what the defendant said on direct

examination. "These cases repudiated the statement in Agnello


                                 3
United States v. Gilley, No. 00-0559/AF


[v. United States, 269 U.S. 20 (1925),] that no use at all may

be made of illegally obtained evidence.”      446 U.S. at 625.

     In Havens, the Court of Appeals held that evidence illegaly

seized could only be used to impeach if it contradicted a

particular statement made by the accused during direct

examination.   Accordingly, since a T-shirt taken from Havens’s

luggage was tainted evidence, it could not be used, because

Havens was asked nothing during his direct testimony about the

T-shirt or luggage.    The Court of Appeals also relied on the

statement in Agnello that Agnello had done nothing "to justify

cross-examination in respect of the evidence claimed to have

been obtained by the search.”    Id.

     In reversing, the Supreme Court restricted the reach of

Agnello to cases of cross-examination having too tenuous a

connection with any subject opened by direct examination to

permit impeachment by tainted evidence.      Relying on Harris and

Hass, the High Court indicated that the objective of the

exclusionary rule is served without extending it to legitimate

cross-examination needed to satisfy the fundamental, truth-

seeking goal of our legal system.      Id. at 626.

     This is not an instance where there was an inadvertent

opening of the door.    From the opening statement through final

argument and at numerous points in between, the defense set

forth their theory of the case:    that the statement typed by the


                                  4
United States v. Gilley, No. 00-0559/AF


agents who had questioned appellant was false, and when he

reviewed that written statement and its falsity, he requested

counsel.   Defense counsel’s eliciting testimony that appellant

invoked a constitutional right was a conscious, intentional act

to undermine the law enforcement officers and support the

defense theory of the case.   Thus, the Government had the right

to rebut all reasonable inferences set forth by the defense.

     As to the trial counsel’s argument, there was no error. The

defense theory of the case was that appellant gave total

cooperation until the agents sought to get him to sign a false

statement.   The defense evoked this theory numerous times during

the trial.   A trial judge is not required to count the number of

times the trial counsel responds to the defense theory, and in

fact, some of the prosecution’s statements as to the theory of

the case are paraphrases of what the defense was setting forth

throughout the trial.   As the Air Force Court of Military Review

once observed:

                A criminal trial is not a tea dance, but an
           adversary proceeding to arrive at the truth. Both
           sides may forcefully urge their positions so long as
           they are supported by the evidence. Considering the
           trial counsel’s closing argument in toto, it was
           within the bounds of fair comment considering the
           state of the evidence.

United States v. Rodriguez, 28 MJ 1016, 1023 (AFCMR 1989).

     For the reasons mentioned above, I concur in the result as

to Issue I and concur on Issue II.


                                 5
United States v. Gilley, 00-0559/AF


    SULLIVAN, Judge (concurring in part and dissenting in part):


                               Overview

    The majority, as part of its plain error analysis on Issue I,

has examined the record as a whole and determined that “there was

no material prejudice to appellant’s substantial rights in this

case.”   ___ MJ at (21, 25).   It justifies its conclusion on the

basis of the context of this trial, “the overwhelming evidence of

appellant’s guilt,” and “the implausibility of appellant’s

exculpatory story.”   Id. at (25).    Such a holding is clearly

inconsistent with the plain error approach of this Court in

United States v. Powell, 49 MJ 460, 464 (1998).    See United

States v. Ruiz, 54 MJ 138, 144 (2000) (Gierke, J., concurring in

part and in the result and dissenting in part) (disagreeing with

majority that “unfair prejudicial impact on the jury’s

deliberation is an element of plain error”).



    I sense a continued withdrawal, albeit sub silentio, by the
                                                     1
majority of this Court from the plain error dicta        of United

States v. Powell.   See United States v. Tanksley, 54 MJ 169, 173

1
   United States v. Powell, 49 MJ 460, 465 (1998), particularly
addressed the question whether the Court of Criminal Appeals was
required to reverse a conviction where it found plain error under
United States v. Olano, 507 U.S. 725 (1993). It did not purport
to address the proper plain error test for our Court.
United States v. Gilley, 00-0559/AF


(2000); United States v. Ruiz, supra at 138-43; United States v.

Kho, 54 MJ 63, 65 (2000); United States v. Southwick, 53 MJ 412,

414 (2000).   I applaud the majority’s return to the more

conventional outcome-oriented approach to plain error previously

followed by this Court in United States v. Fisher, 21 MJ 327, 328

(CMA 1986).   See generally United States v. Wilson, 54 MJ 57, 60-

62 (2000) (Sullivan, J., concurring in part and dissenting in

part), citing United States v. Olano, 507 U.S. 725 (1993).



                              Issue I
                     Trial Counsel’s Argument
                           (Plain Error)

    As a preliminary matter, I must note my disagreement with the

majority that trial counsel’s references in his closing argument

to appellant’s pretrial request for counsel “reflected

negatively” on his right to counsel and, therefore, constituted

error.   ___ MJ at (23).   In United States v. Robinson, 485 U.S.

25, 32 (1988), the Supreme Court clearly said: “[W]here as in

this case the prosecutor’s reference to the defendant’s

opportunity to testify is a fair response to a claim made by

defendant or his counsel, we think there is no violation of the

privilege.”   The references in this case were proper in this

light, and there was no suggestion that the prosecution was

trying to use this evidence of exercise of rights to

substantively show appellant’s guilt.   Even if I were to find

that these references to appellant’s exercise of his right to



                                  2
United States v. Gilley, 00-0559/AF


counsel were erroneous without specific limiting instructions, I

would find such errors neither obvious nor substantial.



   Concerning the majority’s “material prejudice to substantial

rights” analysis, I agree that this factor is appropriate in a

military plain error case, i.e., a case where there was no

objection at trial to the prosecutor’s argument.   See generally

Article 59(a), UCMJ, 10 USC § 859(a).   I also note that under

conventional plain error doctrine, there is a requirement for

determining whether the unobjected to error affected an accused’s

substantial rights.   See United States v. Wilson, supra

(Sullivan, J., concurring in part and dissenting in part).   By

that is meant, did the “unobjected to” error, as demonstrated by

the entire record of trial, substantially impact the outcome of

the trial?   Id.; see United States v. Kho, supra (Sullivan, J.,

concurring).   Contrary to Powell, supra at 464, this Court has

once again implied that in our Court, the effect of the

unobjected to error on the outcome of the case as demonstrated by

the record of trial is a recognized part of finding plain error.

See United States v. Tanksley, 54 MJ at 173; see also United

States v. Ruiz, 54 MJ at 143.



    Article 59(a), UCMJ, is consistent with this approach.   It

states:

          A finding or sentence of court-martial may
          not be held incorrect on the ground of an


                                 3
United States v. Gilley, 00-0559/AF


           error of law unless the error materially
           prejudices the substantial rights of the
           accused.

(Emphasis added.)



Similar language has been viewed by the Supreme Court as

“authoriz[ing] no remedy unless the error does ‘affec[t]’

substantial rights.”   See United States v. Olano, 507 U.S. at

735.   It also has been construed to place the burden on the

convicted person to show prejudice to his trial result based on

the entire record, and not on the Government to show

harmlessness.   Id. at 734.



    This Court has applied Article 59(a), UCMJ, somewhat

differently where error has been objected to at trial by the

accused.   If the error is a violation of constitutional or codal

norm, we have required that the Government convince us that

unobjected to error was harmless based on the entire record of

trial.    See United States v. Lucas, 1 USCMA 19, 23, 1 CMR 19, 23

(1951); United States v. Lee, 1 USCMA 212, 216, 2 CMR 118, 122

(1952).    In this regard, we have followed Supreme Court case law

(Kotteakos v. United States, 328 U.S. 750, 761-62, 764-65 (1946))

and Fed. R. Crim. P. 52(a) in applying Article 59(a), UCMJ, to

objected to errors.




                                  4
United States v. Gilley, 00-0559/AF


   Nevertheless, with respect to unobjected to error at the

trial level, this Court has literally applied Article 59(a),

UCMJ, consistent with Supreme Court decisions on plain error and

Fed. R. Crim. P. 52(b).   See generally United States v. Fisher,

21 MJ at 327; United States v. Plaut, 18 USCMA 265, 272, 39 CMR

265, 272 (1969); United States v. Pond, 17 USCMA 219, 224, 38 CMR

17, 22 (1967); United States v. Stephen, 15 USCMA 314, 317-18, 35

CMR 286, 289-90 (1965).   This body of plain error law places the

burden on the appellant to show prejudice from the entire record

of trial as to the outcome of the case.   See United States v.

Williams, 47 MJ 142, 144 (1997); United States v. Hall, 46 MJ

145, 147 (1997); United States v. Czekala, 42 MJ 168, 170-71

(1995); United States v. Pollard, 38 MJ 41, 51 (CMA 1993); United

States v. Strachan, 35 MJ 362, 364 (CMA 1992); see generally

United States v. Olano, 507 U.S. at 732; Johnson v. United

States, 520 U.S. 461, 467 (1997).    This Court’s “burden shifting”

pronouncements in Powell, 49 MJ at 460, temporarily upset this

body of law but they are no longer controlling.   See United

States v. Tanksley, 54 MJ at 173.



    In sum, the plain error approach of United States v. Powell,

supra at 465, which required the appellant to merely show the

type of legal right violated and then the Government to show

harmlessness based on the entire record of trial, has been

rejected by the Supreme Court.   United States v. Young, 470 U.S.



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United States v. Gilley, 00-0559/AF


1, 16-17 n.14 (1985).   It has said that courts have “studiously

avoided” this approach and commentators have “properly

criticized” it.   Such an approach has also been rejected by all

the circuits and called “strange” by a noted legal commentator.

See 3A Charles Alan Wright, Federal Practice and Procedure § 856

at 344 n.26 (2d ed. 1982 & 2001 Supp.).   The majority of this

Court today also rejects this approach, albeit sub silentio, and

returns to our traditional and well-established position of

following Supreme Court precedent on this matter.     It has

reembraced United States v. Fisher, supra (___ MJ at (24)), and

required, as part of its plain error analysis, that the entire

record of trial be examined to determine whether the outcome of

the trial was impacted.

                               Issue II
                  Ineffective Assistance of Counsel
                             (Prejudice)

    On the ineffective assistance of counsel question, however, I

disagree.   In my view, there was no reasonable probability in

appellant’s case that a different result would have obtained if

defense counsel had winnowed the letters of his father, mother,

and brother from appellant’s clemency package.   See United States

v. Grigoruk, 52 MJ 312, 315 (2000).   Contrary to his pleas,

appellant was found guilty of numerous sexual offenses and a

physical abuse offense over a three-year period with his stepson

and his two stepdaughters, who were from ages ten to fourteen at

the time of trial.   After his conviction, appellant continued to



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United States v. Gilley, 00-0559/AF


assert his stepchildren were lying at the behest of his wife,

even though there was some evidence in this case of a pretrial

confession.   No remorse was shown.   Accordingly, even if the

inappropriate letters from appellant’s family castigating the Air

Force for such a verdict were excepted, appellant’s position

would not have been enhanced before the convening authority.



   Unlike the majority, I agree with and adopt the lower court’s

common sense view of the family letters.    The Court of Criminal

Appeals found:



            After reviewing his mother’s letter, we
          find it to be appropriate for submission
          to the convening authority. Neither the
          tone nor the content is prejudicial or
          inflammatory. It is simply a mother’s
          plea that her son is innocent. The
          interpretation the appellant asks us to
          attach to this letter is not reasonable.

            The letter from his father contains
          emotion and anger but it is consistent
          with the defense theory at trial that the
          appellant’s wife coached the children to
          lie. This anger is directed at his son’s
          wife, Air Force lawyers, and the military
          judge. According to him, his son was the
          target for Air Force “high ranks” so they
          could look good. His anger builds
          throughout the letter and he eventually
          refers to everyone involved in his son’s
          case as “low-lifed bastards” and hopes
          they “burn in hell.” He bestows his
          greatest contempt on Air Force lawyers who
          he views as “dumb asses.” After
          describing how he has lost faith in the
          United States, experiences nightmares, and
          is constantly upset, the appellant’s



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United States v. Gilley, 00-0559/AF


          father closes by telling the convening
          authority,

                As I see it, it’s entirely up to
             you to grant David an appeal or
             reduce his sentence. Personally, I
             think he has suffered enough. If
             not then maybe you’ll enjoy being
             like me, having flashbacks and
             shedding tears in the middle of the
             night and living with it day by day.

          The appellant’s affidavit is silent about
          whether he directed his attorneys not to
          include the letter.

            Reduced to its basic essence, this
          letter is from a loving and frustrated
          father who is convinced of his son’s
          innocence. This is apparent to anyone who
          reads the words and is a standard plea
          from relatives and friends. However, the
          character of this letter is different
          because rather than begging for mercy, he
          leaves the sugar in the bowl. His
          contempt for those he sees as his son’s
          tormenters is obvious. His admonition to
          the convening authority is similar to
          Marley’s exhortation to Scrooge, save
          yourself (by righting the wrong the system
          has visited upon my son), or suffer my
          fate. 1/ Even if we were to conclude that
          counsel violated the first prong of
          Strickland by submitting the letter, which
          we do not, the appellant has not
          demonstrated he suffered any prejudice.
          An argument can be made that by virtue of
          his position, the convening authority is
          one of the “high ranks” excoriated in the
          letter. However, in our view, the
          appellant’s father excluded the convening
          authority from his cast of villains
          because he appealed to the convening
          authority for justice. We are convinced
          that any convening authority reading this
          letter would recognize it was written by a
          devastated parent who felt powerless to
          help his child. We refuse to hold that
          there is no room for candor in the
          clemency process.


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United States v. Gilley, 00-0559/AF


          ___________
          1/
             Charles Dickens, A Christmas Carol
          (1843).

Unpub. op. at 8-9.



    As the Supreme Court said in Strickland v. Washington, 466

U.S. 668, 686 (1984):



          The benchmark for judging any claim of
          ineffectiveness must be whether counsel’s
          counsel so undermined the proper
          functioning of the adversarial process
          that the trial cannot be relied on as
          having produced a just result.


I cannot say that the submission of the father’s letter in the

clemency process breached this high threshold for a successful

claim of ineffectiveness of counsel.   I, like the U.S. Air Force

Court of Criminal Appeals, find that the prejudice prong of

Strickland has not been met.   Accordingly, I would affirm.




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