                            CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                             Before the Court Sitting En Banc

                          UNITED STATES, Appellee
                                        v.
                    Sergeant First Class ALAN D. ESLINGER
                         United States Army, Appellant

                                   ARMY 20070335

                             Headquarters, Fort Carson
                         Michael J. Hargis, Military Judge
                    Colonel Kent R. Meyer, Staff Judge Advocate

For Appellant: Major William M. Fischbach III, JA; Charles W. Gittins, Esquire*
(on brief); Charles W. Gittins, Esquire* (on reply brief).

For Appellee: Lieutenant Colonel Francis C. Kiley, JA; Captain Trevor B.A.
Nelson, JA (on brief).

                                      21 May 2010

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

CONN, Senior Judge:

       A panel of officer and enlisted members, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of three specifications of wrongful
possession of child pornography during three distinct periods of time, in violation of
Article 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934.
The convening authority approved the adjudged sentence of a bad-conduct discharge,
confinement for three years, forfeiture of all pay and allowances, and reduction to
Private E1. This case is before the court for review pursuant to Article 66, UCMJ.

       Appellant asserts two errors. First, appellant avers the military judge erred by
failing to sua sponte give an accident or mistake of fact instruction relating to
appellant’s possession of child pornography. For reasons outlined below, we find
appellant affirmatively waived such an instruction.


*Corrected
ESLINGER – ARMY 20070335

       Second, appellant avers the military judge committed plain error by
permitting government rebuttal witnesses, in sentencing, to testify without adequate
foundation and to opine appellant should be removed from the Army. Under the
particular facts of appellant’s case, we find the testimony of several rebuttal
witnesses was erroneously admitted, but we do not find plain error. We reemphasize
the requirements and limitations of Rule for Courts-Martial [hereinafter R.C.M.]
1001(b) apply to government rebuttal witnesses testifying about an accused’s
rehabilitative potential in sentencing. Further, when such witnesses are commanders
and senior noncommissioned officers (NCO), we stress that military judges must
ensure the foundation for such testimony is rationally based on personal knowledge
of the accused. Additionally, without limiting the government’s ability to rebut
sentencing evidence under R.C.M. 1001(d), we conclude the foundational
requirements for government witnesses offered to rebut defense “retention” evidence
must generally conform with the principles of R.C.M. 1001(b)(5)(B)-(F). Last, we
strongly recommend military judges provide an appropriate limiting instruction
when such “retention” evidence is presented before members.

                  AFFIRMATIVE DEFENSE INSTRUCTIONS

            Instruction on Affirmative Defense of Accident or Mistake

       Appellant had been living with a woman, LM, for approximately two years.
In March 2006, she discovered images of child pornography on appellant’s laptop
computer and reported it to police. Forensic evaluation of appellant’s laptop and
external storage devices uncovered more than 1,700 deleted images and videos of
child pornography. The files were downloaded to appellant’s laptop computer and
saved on the storage devices over several years. Forensic evaluation also showed
appellant’s laptop contained evidence of thousands of files or file names containing
terms commonly associated with child pornography. The timeframe included
periods when appellant was at Fort Bragg and Fort Carson, as well as while
appellant was deployed to Iraq.

       Appellant testified and admitted he possessed the laptop and storage devices,
but denied knowingly downloading or possessing child pornography. Appellant
suggested someone else, using his computer, could have downloaded the images.
Appellant demonstrated LM had access to and used his computers while living with
him. Shortly before her discovery of the child pornography, LM had herself
subscribed to and downloaded files from “Easy News,” a file sharing domain
appellant admitted subscribing to for many years and from which he downloaded
adult pornography. He also testified that while in Iraq, members of his Special
Forces (SF) team and others had access to and used his computer.

      Appellant testified he was in training and did not have his laptop with him
during a few weeks when relevant images were allegedly downloaded at Fort Bragg.



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ESLINGER – ARMY 20070335
A friend testified he visited appellant during this timeframe and did not see
appellant’s laptop during the visit. The government presented evidence contesting
appellant’s assertion.
      At the close of evidence, the military judge discussed proposed instructions
with counsel and specifically asked civilian defense counsel whether he was
requesting instructions on any affirmative defenses, including accident or mistake.
The ensuing colloquy took place:

             MJ: All right. Defense, do you see any affirmative
             defense[s] that apply in this case?

             CDC: No, sir.

             MJ: Are you waiving any affirmative defenses?

             CDC: Well, again, I don’t see any—

             MJ: Same discussion we had last time, Mr. Spinner
             [regarding lesser-included offenses].

             CDC: Right. So, I guess I waive them—

             MJ: Okay. Very—

             CDC: —the ones I don’t know about.
       Given the arguably ambivalent waiver, after instructions and before sending
the members back for deliberations, the military judge again asked defense counsel
whether he was affirmatively waiving a specific instruction on accident or mistake
of fact. The following additional colloquy took place:
             MJ: . . . Mr. Spinner, prior to findings instructions, we had
             a discussion about waiver of affirmative defenses. We had
             a discussion about the defense of mistake or accident.

             CDC: Yes, Your Honor.

             MJ: And you were taking the position consistent with
             mine that it did not apply.

             CDC: That is correct, Your Honor.

             MJ: Are you affirmatively waiving that instruction?

             CDC: Yes, sir.


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ESLINGER – ARMY 20070335

      In instructing the members on the elements of each of the three specifications
of possession of child pornography, the military judge emphasized possession must
be knowing. The military judge defined the “knowing” element to require
appellant’s possession of child pornography not be mistaken or accidental.

                        Affirmative Defense Instruction Law

      A military judge has a sua sponte duty to give certain instructions when
reasonably raised by the evidence, even in the absence of a request by the parties.
United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)).
Mistake of fact is a special defense that a military judge must instruct court
members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M.
920(e)(3). Waiver does not apply based on the mere failure to request the
affirmative defense instruction or to object to its omission. United States v. Taylor,
26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing
waiver of a reasonably raised affirmative defense. United States v. Gutierrez,** 64
M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233
(C.M.A. 1994)). For a waiver to be effective, it must be clearly established that
appellant intentionally relinquished a known right. See United States v. Harcrow, 66
M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).

       As our superior court noted in Gutierrez,** the issue of waiver of affirmative
defenses is substantially similar to waiver of lesser-included offenses. 64 M.J. at
377. Both are required instructions pursuant to the Manual for Courts-Martial (see
R.C.M. 920(e)(2) & (3)) and cannot be waived simply by counsel's failure to request
such instructions. Gutierrez,** 64 M.J. at 377. However, in the context of lesser-
included offenses, deferential or noncommittal statements regarding an instruction
may constitute waiver. United States v. Mundy, 9 C.M.R. 130, 133-34 (C.M.A.
1953) (statements “The defense will leave it up to the law officer” and “consent to
the ruling of the law officer” amount to waiver of instruction on lesser-included
offenses). See also United States v. Smith, 50 M.J. 451, 456 (C.A.A.F. 1999)
(defense statement that an instruction is “not exactly what I wanted, but it's close,”
amounts to a waiver of instruction on lesser-included offenses; no specific language
is required, provided it reflects a purposeful waiver); United States v. Strachan, 35
M.J. 362, 364 (C.M.A. 1992) (defense counsel waived instruction on lesser-included
offense when, after requesting the instruction and being asked by the military judge
how the instruction applied, he replied, “The defense will withdraw that.”).




**Corrected




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ESLINGER – ARMY 20070335
                                     Discussion

       In the present case, there is both a noncommittal statement by defense
counsel, “I guess I waive [the affirmative defenses] I don’t know about,” as well as a
later express waiver of the accident and mistake instructions. These exchanges
between the military judge and defense counsel, in the context of the record, leave
us with the firm conclusion that defense counsel's statements constitute a purposeful
decision to forego instruction on the affirmative defenses of accident and mistake.

       A military judge is required to instruct the members on affirmative defenses
in issue. United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007) (quoting and citing
R.C.M. 920(e)). “A matter is considered ‘in issue’ when ‘some evidence, without
regard to its source or credibility, has been admitted upon which members might rely
if they choose.’” Id. (quoting R.C.M. 920(e), Discussion; United States v.
Gillenwater, 43 M.J. 10, 13 (C.A.A.F. 1995)). In this case, the defenses of mistake
and accident were in issue, as the defense presented evidence suggesting accidental
or mistaken possession.

       Civilian defense counsel may have tactically waived the instructions for any
of several reasons. Specifically, the voluminous number of images and number of
different storage media involved, the time span of possession reflected in the
specifications, and potential issues of the legality of appellant’s conduct in some
instances, 1 make it entirely plausible to conclude defense counsel knowingly
abandoned the instruction. Moreover, on appeal, appellant has not alleged
ineffective assistance of counsel in waiving an accident or mistake instruction. The
record does not support a conclusion that defense counsel's clear “Yes, Sir” response
to the military judge’s very specific question regarding affirmative waiver of the
instruction amounted to anything less than a knowing and purposeful waiver.

       We hold defense counsel affirmatively waived the instruction. Waived issues
are not subject to appellate review because “a valid waiver leaves no error to correct
on appeal.” United States v. Campos, 67 M.J. 330, 333 (C.A.A.F. 2009) (quoting
United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005)).



1
  During his testimony on the merits, appellant admitted he downloaded adult
pornography to his computer while deployed to Iraq. This prompted a question by a
member whether appellant was aware this may have violated applicable general
orders related to possession of pornography. The military judge properly disallowed
the question and appropriately instructed the members not to consider that issue.
Such matters may have been relevant, however, had the defense pursued the accident
instruction. See R.C.M. 916(f) and See Dep’t of Army Pam. 27-9, Legal Services:
Military Judges’ Benchbook, para. 5-4 (1 Jan. 2010) [hereinafter Military Judges’
Benchbook], reflecting the legal requirement that, for accident to apply, appellant
must have been performing “a lawful act in a lawful manner.”


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ESLINGER – ARMY 20070335

       Even were we to ignore what we find to be a purposeful and knowing waiver,
the military judge made the absence of accident or mistake an elemental requirement
of the offense. Specifically, the military judge defined “possession” as requiring
“knowing” possession “not the result of accident or mistake.” By doing so, the
military judge required the members to find beyond a reasonable doubt appellant’s
possession of more than one thousand child pornography images and videos was not
the result of accident or mistake. Thus, the given instruction was arguably more
favorable to appellant. See R.C.M. 916(f) & (j). These facts negate any material
prejudice to appellant regarding omission of the mistake or accident instructions. If
any error in failing to give the mistake of fact or accident instructions existed, we
conclude it was harmless beyond a reasonable doubt. See Chapman v. California,
386 U.S. 18, 24 (1967); United States v. DiPaola, 67 M.J. 98, 102 (C.A.A.F. 2008)
(citing Neder v. United States, 527 U.S. 1, 18 (1999)).

                             RETENTION EVIDENCE

             Opinion Evidence Elicited in Rebuttal During Sentencing

       Appellant was a HALO 2 qualified SF medic who had participated in at least
four deployments and had been awarded the Bronze Star Medal for Valor. At the
time of his court-martial, appellant had nearly eighteen years of service. Appellant
was tried and sentenced by an officer and enlisted panel composed of a colonel, two
lieutenant colonels, a major, and two sergeants major.

       As part of its sentencing case, the government admitted, without objection,
two general officer memoranda of reprimand (GOMOR) issued to appellant for
driving under the influence of alcohol (DUI) in 1999 and 2004. Additionally, the
government admitted a stipulation of fact between the parties reflecting appellant’s
civilian conviction in 2004 for third degree criminal trespass.

       During the presentencing phase of his trial, appellant’s military defense
counsel admitted, without objection, a stipulation of expected testimony of Sergeant
First Class (SFC) Promotable Dishman. The stipulation outlined SFC Dishman’s
six-year relationship with appellant, including living with appellant and serving with
him during two deployments to Iraq. The stipulation stated in part,

             I definitely think there is a place for [appellant] in the
             Army and within the 10th Special Forces Group. I truly

2
  “HALO” stands for High-Altitude Low-Opening, and refers to SF parachute jumps
made from extreme altitudes with the chute opening very close to the ground. The
altitudes involved require jumpers to use oxygen to breathe, and the descent velocity
is so great, jumpers evade radar detection. See U.S. Army Special Forces at
http://www.goarmy.com/special_forces/equipment.jsp (last visited on 1 Apr. 2010).


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ESLINGER – ARMY 20070335

             believe that Special Forces is the only place for SFC
             Eslinger. I would be proud to serve with him in the future
             despite this conviction. . . . [I] would welcome him to my
             team any day.

        Among other witnesses, military defense counsel called two members of
appellant’s unit to testify in mitigation. The first, Master Sergeant (MSG) Gibbons,
testified on direct examination that he served with and supervised appellant as a
medic in Iraq in 2002-2003 and again at Fort Carson from 2006 until the trial. When
asked whether he would be willing to deploy with appellant again, the witness
stated: “I’ve already packed his bags. . . . I would take him on my team in a
minute.” On redirect, defense counsel asked why appellant deserved another chance.
Citing appellant’s past performance, subtantial training, experience as an SF soldier,
and rehabilitative potential, the witness stated, “I would say, yes, we need to keep
this soldier. . . . I think, you know, something needs to be done, you know. Past
that, I think he needs to stay in the service.” The trial counsel asked the military
judge to direct the panel to disregard testimony about “keeping the soldier in the
Army.” The military judge overruled the objection.

       Defense counsel also called Captain (CPT) Coffman, a battalion physican’s
assistant who supervised appellant for eight months prior to trial. Captain Coffman
characterized appellant as “without peer” and the “best medic” among the forty-three
medics he supervised in the battalion. After discussing how the stress of multiple
deployments impacts judgment and behavior, the witness indicated the Army had the
resources, ability, and training to help appellant. Noting he was deploying the next
day, CPT Coffman agreed he “would like to have Sergeant First Class Eslinger on
the plane” with him when he deployed.

     At the conclusion of the defense sentencing case, appellant made a brief
unsworn statement, during which he stated:

             And finally, I ask you to allow me to deploy to Iraq to join
             my teammates who are waiting for me in Iraq. My kit and
             personal gear has been transported to Iraq already based
             on my promise to them that I would be there and the lack
             of doubt in their minds that I would join them in
             continuing the fight on terrorism.

       In rebuttal, the government called five witnesses. The first was Major (MAJ)
Peltier, the executive officer and acting commander for appellant’s battalion. Major
Peltier began describing his background in SF and the composition and
characteristics of SF units, noting team members must have “integrity” and
“trustworthiness.” Without providing a foundation explaining how the witness knew
appellant or his background, the trial counsel asked, “Do you believe Sergeant First



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ESLINGER – ARMY 20070335

Class Eslinger possesses this integrity?” Major Peltier answered, “Based on what I
know about him and his past history and the current proceedings, I would say no.”
Trial counsel thereafter sought to elicit from the witness the hearsay opinion of
appellant’s battalion commander, Lieutenant Colonel (LTC) Stoltz. The military
judge sustained the objection, and the trial counsel immediately followed up with the
following series of questions:

             Q: Major Peltier, what is your opinion regarding the
             soldier’s abilty to deploy or stay in 10th Special Forces
             Group?

             A: It is my opinion that, clearly he should not deploy to
             combat with this organization. I know that based upon the
             pattern of misconduct that this soldier has demonstrated,
             not just recently, but in the past, that he has clearly
             demonstrated that he lacks integrity, lacks discipline, and
             he should not deploy with this unit to combat. And for that
             matter, he should not return to this—the 3 rd Battalion.
             And I’ll go a step further in my opinion, based on his
             pattern of misconduct, he shouldn’t even be in the Army.

             Q. And what was this opinion based upon again?

(emphasis added). After the trial judge sustained another hearsay objection to a
repeated attempt by MAJ Peltier to describe the battalion commander’s opinion
regarding appellant, the trial counsel continued:

             Q. Go ahead, Major Peltier.

             A: Okay. I know that of this soldier that he has a pattern
             of misconduct. . . . A flag officer has, you know—
             punished him by giving him a memorandum of reprimand
             for misconduct in the past, not once but twice. I also
             know that in the civilian sector, he was—had some trouble
             with trespassing. . . . And based on that, I cannot see how
             you can possibly allow him to continue in the service, not
             just in the Army but in the Special Forces Group that is
             deploying to combat for its fifth time.

(emphasis added). All of this testimony occurred on direct examination without
objection from defense counsel. Defense counsel did, in cross-examination,
establish that MAJ Peltier had no prior contacts with or knowledge of appellant and
had only learned of his disciplinary history during the trial.




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ESLINGER – ARMY 20070335

      At the conclusion of MAJ Peltier’s testimony, the military judge appropriately
gave a limiting instruction to the members that they were not to consider questions
regarding the battalion commander’s opinion.

       The members posed a series of questions to MAJ Peltier. In response, MAJ
Peltier opined appellant had no potential as a soldier, and he had no rehabilitation
potential for further service to SF or the Army. After this, the trial counsel, as the
proponent of the witness, asked MAJ Peltier to explain, without objection, why
appellant had no potential as a soldier and no rehabilitative potential.

       The government next called Sergeant Major (SGM) Krider, the acting
battalion sergeant major, whose foundation for testifying was he knew appellant
“vaguely—in a distant manner.” Trial counsel asked:

             Q: What is your opinion on whether Sergeant First Class
             Eslinger should continue to serve in the—Special Forces
             Group or in the Army?

             A: There is no place in our ranks for Sergeant Eslinger.

             Q: And why do you have that opinion?

             A: He has been convicted of three counts of child
             pornography. He has a record of DUIs. He also has a
             conviction in the civilian courts for criminal trespass.

(emphasis added).

       During cross-examination, defense counsel firmly established that SGM
Krider had no prior contact with or knowledge of appellant, and based his opinion
principally on appellant’s conviction for possession of child pornography. The
military judge sua sponte intervened, asking, “Defense . . . any issues with the
sergeant major’s testimony?” Ultimately, the military judge ruled that, while the
limitations of R.C.M. 1001(b)(5) may not technically apply to government rebuttal
evidence, “[t]o allow a witness to come in here and say, based only on the offense or
primarily on the offense of which the accused has been convicted, that their opinion
is there’s no place for him in the Army goes too far in my view beyond rebutting
what the defense clearly opened the door to.” Based on that, the military judge
instructed the members, “Members, the opinion expressed by Sergeant Major Krider
that the accused does not have potential for further service to the United States
Army or within Special Forces was improperly based, and I’m going to direct you
not to consider his testimony in that regard.”




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ESLINGER – ARMY 20070335

       Next, the government called MSG Stensgaard, a witness who had testified on
the merits. Unlike the other rebuttal witnesses, MSG Stensgaard was able to lay a
foundation, as he had significant interaction with appellant, having been appellant’s
team sergeant for two years, training, deploying with, and rating appellant. After
establishing through leading questions that MSG Stensgaard was familiar with
appellant’s prior DUIs and civilian conviction, trial counsel asked:

             Q: Do you have an opinion regarding whether Sergeant
             First Class Eslinger should remain in 10th Group—10th
             Special Forces Group or the Army?

             A: As a leader in the United States Army, I don’t feel that
             based on his prior incidences and this conviction how he
             could remain in the U.S. Army and effectively serve.

(emphasis added).

      The government called as its fourth rebuttal witness, the group (i.e., brigade
equivalent) commander, Colonel (COL) Tovo. With the very cursory foundation that
COL Tovo knew appellant because he was under his command, and a series of
leading questions outlining COL Tovo’s knowledge of appellant’s GOMORs for DUI
and the civilian conviction, trial counsel asked COL Tovo, without objection, the
following series of questions:

             Q: . . . Sir, do you want the accused back in your unit?

             A: I do not.

             Q: Do you want to deploy with the accused?

             A. I do not.

             Q: Do you want the accused in the Army?

             A. No.

             Q: And then, sir, in forming the basis of your opinions,
             can you please tell the panel what these opinions are based
             on?

(emphasis added). In cross-examination, defense established that, to the best of
COL Tovo’s knowledge, appellant had a reputation as an exceptional soldier.




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ESLINGER – ARMY 20070335

       The government’s fifth rebuttal witness was Command Sergeant Major (CSM)
Sekelsky, the group command sergeant major. Because the defense objected it had
not previously had an opportunity to interview this witness, the military judge asked
for an offer of proof as to the witness’s testimony, to which trial counsel responded,
“Your honor, Command Sergeant Major Sekelsky knows the accused. He was . . .
the battalion command sergeant major for the accused and will testify that he does
not want the accused back in 10th Group. He doesn’t want him—.” The defense
objected on grounds of cumulativeness in the following exchange:

             DC: Sir, the defense would object to this witness as
             cumulative. They just put the group commander on the
             stand who’s given the consensus of the chain of command.

             MJ: Well, certainly, you would be within your rights to
             argue that the group commander doesn’t really know the
             accused as well as other people might, with possible
             exception of Master Sergeant Stensgaard, which is why I
             asked the government for an offer of proof—

             DC: Yes, sir.

             MJ: —as to how well he knows the accused.

             DC: Okay, sir.

             MJ: This witness appears to have some closer connection
             with the accused, so I’ll overrule your objection.

       Command Sergeant Major Sekelsky testified that he had been appellant’s
battalion command sergeant major for two years, deployed with him to Iraq, would
see him occasionally at the forward operating base (FOB), and had visited
appellant’s team “twice, I believe.” He had occasional conversations with appellant,
“Not in depth. Just say, ‘Hi. How’re you doing.’”

      After establishing through leading questions that CSM Sekelsky had
knowledge of appellant’s reprimands and civilian criminal conviction, trial counsel
asked the following questions of the witness:

             Q. . . . First off, do you, Sergeant Major, want the
             accused in 10th Special Forces Group?

             A. No

             Q: Do you want to deploy with him to Iraq?



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ESLINGER – ARMY 20070335

             A. No.

             Q. Do you want him in the U.S. Army?

             A. No.

             Q. And why do you say that, Sergeant Major?

(emphasis added).

                                      Discussion

       Here, we examine the scope of government sentencing evidence offered in
rebuttal to so-called “retention” evidence. When, as in this case, the defense fails to
object to admission of specific evidence, the issue is forfeited, absent plain error.
United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008) (citing United States v.
Hardison, 64 M.J. 279, 281 (C.A.A.F. 2007); United States v. Powell, 49 M.J. 460,
463-65 (C.A.A.F. 1998); R.C.M. 905(e)). The plain error standard requires: “(1) an
error was committed; (2) the error was plain, or clear, or obvious; and (3) the error
resulted in material prejudice to substantial rights.” Hardison, 64 M.J. at 281
(citations omitted). Appellant bears the burden of demonstrating the three prongs of
the test are met. Id. Therefore, while one of the elements of the plain error test is
obvious error, admission of the evidence does not warrant relief unless it materially
prejudices appellant’s substantial rights. Powell, 49 M.J. at 464 (citing UCMJ art.
59(a)).

       When defense lodges an objection to the admission of evidence, we first
consider whether the judge abused his discretion by admitting the evidence. 3 United
States v. Clayton, 67 M.J. 283, 286 (C.A.A.F. 2009). If so, the government bears the
burden to convince the appellate court that admission of the evidence was harmless.
See, e.g., United States v. Pablo, 53 M.J. 356, 359 (C.A.A.F. 2000) (citing United
States v. Pollard, 38 M.J. 41, 52 (C.M.A. 1993)). We evaluate prejudice from an
erroneous admission or exclusion of evidence during sentencing by assessing
whether the error substantially influenced the adjudged sentence. United States v.
Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005) (citations omitted). If it substantially
influenced the adjudged sentence, then the result is material prejudice to appellant's
substantial rights. Id. (citing UCMJ art. 59(a)).




3
   During the government’s rebuttal case, defense counsel’s only objection was for
cumulative testimony; thus, we apply the abuse of discretion standard to that
evidence. We review the admission of all other rebuttal evidence for plain error.


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ESLINGER – ARMY 20070335

Error

       First, with regard to admission of the testimony of several government
rebuttal witnesses, we find the military judge committed error by permitting
government rebuttal testimony essentially calling for the panel to discharge
appellant without imposing a meaningful foundation requirement or providing a
necessary limiting instruction.

        Rule for Courts-Martial 1001(b) broadly authorizes the government to
introduce two types of evidence in sentencing: matters directly related to or arising
from the offense and matters related to the accused’s character (service,
performance, rehabilitative potential). Beginning with United States v. Horner, 22
M.J. 294 (C.M.A. 1986), our superior court has interposed what have become well-
established parameters governing the scope of government evidence of an accused’s
character offered in sentencing, particularly related to “rehabilitative potential.”
These parameters are reflected in several amendments to R.C.M. 1001(b)(5) over the
years. 4

       In order to testify regarding an accused’s character for rehabilitation, a
government witness must first demonstrate an adequate foundation in personal
knowledge of the accused and his character. “Simply stated, the opinion envisioned
by R.C.M. 1001(b)(5) can only be expressed by a witness who has a rational basis
for his conclusions, founded upon the accused’s service, performance and
character.” United States v. Ohrt, 28 M.J. 301, 304 (C.M.A. 1989). See also United
States v. Armon, 51 M.J. 83, 86-87 (C.A.A.F. 1999). Logically, that opinion cannot
be based principally upon the offense. Horner 22 M.J. at 296 (Testimony was
“plainly based not upon any assessment of appellant’s character and potential, but
upon the commander’s view of the severity of the offense. Such testimony is simply
not helpful to the sentencing authority.”). See also Ohrt, 28 M.J. at 307 (testimony
lacked a proper foundation to demonstrate opinion was personalized and based upon
the accused's character and potential).




4
  In 1984, R.C.M. 1001(b)(5) simply provided, “The trial counsel may present, by
testimony or oral deposition in accordance with R.C.M. 702(g)(1), evidence, in the
form of opinions concerning the accused’s previous performance as a servicemember
and potential for rehabilitation. On cross-examination, inquiry is allowable into
relevant and specific instances of conduct.” The current rule’s subparts (B) through
(F), which impose strict foundation and scope, narrowly define “rehabilitation,” and
limit reference to specific instances of conduct on direct, are the result of abuses of
such evidence identified by case law.



                                          13
ESLINGER – ARMY 20070335

       While a witness may make an assessment as to rehabilitative potential, a
witness may not comment on or infer a recommendation of a particular sentence,
especially a punitive discharge. “It would be ironic and absurd if R.C.M. 1001(b)(5)
were construed to allow the parties to call witnesses simply for the purposes of
telling the court-martial what offenses, in the witnesses’ estimation, require punitive
discharges or lengthy confinement, etc.” Horner 22 M.J. at 296. As the Ohrt court
noted:

             The question of appropriateness of punishment is one
             which must be decided by the court-martial; it cannot be
             usurped by a witness. Thus for the same reasons we do
             not permit an opinion of guilt or innocence, or of
             “truthfulness” or “untruthfulness” of witnesses, we do not
             allow opinions as to appropriate sentences.

Ohrt, 28 M.J. at 305.

       The prohibition against a witness suggesting a particular sentence includes the
so-called “euphemism” rule, which prevents government witnesses from testifying
on direct examination that an accused has “no place in the Army” or that an accused
should not be returned to the unit. Ohrt, 28 M.J. at 305 (“The use of euphemisms,
such as ‘No potential for continued service;’ ‘He should be separated;’ or the like
are just other ways of saying, ‘Give the accused a punitive discharge.’”); United
States v. Aurich, 31 M.J. 95 (C.M.A. 1990); United States v. Cherry, 31 M.J. 1
(C.M.A. 1990). In fact, R.C.M. 1001(b)(5) now provides a very precise definition of
the term “rehabilitation potential,” as the “accused’s potential to be restored,
through vocational, correctional, or therapeutic training or other corrective measures
to a useful and constructive place in society,” to deter interpretation of such
testimony as a recommendation regarding discharge. (emphasis added).

       These clear limits on government evidence of an accused’s rehabilitative
potential have been clouded by the defense’s ability to present “retention” evidence
and the government’s concomitant ability to rebut such evidence. In Griggs, our
superior court concluded defense evidence that a witness would continue to serve
with the accused is “classic mitigation evidence, which has long been relevant in
courts-martial.” 61 M.J. at 407 (quoting Aurich, 31 M.J. at 97). The court noted
R.C.M. 1001(b)(5)(D) expressly precludes a government sentencing witness from
offering “an opinion regarding the appropriateness of a punitive discharge or
whether the accused should be returned to the accused's unit.” Griggs, 61 M.J. at
407. However, the court held that rule does not preclude defense witnesses from
presenting “retention evidence” in mitigation in the form of testimony the accused
should be returned to duty. Id. at 409. Therefore, testimony “that a witness would
willingly serve with the accused again” is permissible defense mitigation. Id.
Noting the policy behind R.C.M. 1001(b)(5) was to prevent commanders or their



                                          14
ESLINGER – ARMY 20070335

representatives from offering opinions which were not rationally based (i.e., lacked
foundation) and implicated undue command influence, the court concluded defense
evidence warranted no similar concerns. Id.

        The court found evidence a servicemember can “continue to be an asset” or
that he can still be of “great potential” to his service is a valuable mitigation matter.
Id. at 410. In essence, defense “retention” evidence amounts to defense evidence of
an accused’s character for rehabilitation. Griggs did not hold that defense witnesses
may offer an opinion that an accused should not be punitively discharged. 5
Additionally, when retention evidence is at issue, the court found “[A]ny concerns
raised can be addressed with a tailored instruction focusing on the distinction
between a punitive discharge, which is for the members to decide, and the
willingness of a servicemember to serve with an accused again, which may mitigate
the range of punishments available at courts-martial.” 6 Id. at 409-10.

       The court in Griggs noted if the defense offers permissible opinion evidence
on “retention,” the government is free to offer rebuttal demonstrating such opinion
“is not a consensus view of the command.” Griggs, 61 M.J. at 410 (quoting Aurich,
31 M.J. at 96-7). Witnesses, including the accused, may “open the door” for the
prosecution to present evidence that would be inadmissible absent defense
sentencing evidence. See e.g., United States v. Flynn, 28 M.J. 218, 221-22 (C.M.A.
1989). However, rebuttal evidence must answer the defense case or it is
inadmissible. See, e.g., United States v. Armstrong, 12 M.J. 766, 767 (A.C.M.R.
1981). Also, the government may not seek to rebut opinions an accused expresses in
sentencing statements. United States v. Cleveland, 29 M.J. 361 (C.M.A. 1990)
(statement that “I feel that I have served well” is not a statement of fact subject to
rebuttal). “The prosecution may, however, rebut any statements of facts therein.”
R.C.M. 1001(c)(2)(C) (emphasis added). See also United States v. Manns, 54 M.J.
164, 166 (C.A.A.F. 2000) (unsworn statement that he “tried to obey the law” was an
assertion of fact that could be rebutted by the prosecution).

       The Griggs court emphasized two important criteria that help define the
permissible scope of testimony when rebutting retention evidence. First, the rebuttal
evidence should be “[c]onsistent with the historical concerns regarding command
influence.” 61 M.J. at 410. Second, it, like defense evidence, should be predicated
on a proper foundation. Id. See United States v. Hursey, 55 M.J. 34, 36 (C.A.A.F.

5
 Specifically, the Griggs opinion states: “But an explicit declaration that an accused
should not receive a punitive discharge or that any such discharge should be of a
certain severity is disallowed for the defense not because of R.C.M. 1001(b)(5)(D),
but because such evidence invades the province of the members to decide alone on
punishment.” 61 M.J. at 409 (emphasis added).
6
    Here, the military judge did not give such an instruction.


                                             15
ESLINGER – ARMY 20070335

2001) (government rebuttal testimony by government paralegal NCO impermissible
because witness lacked sufficient foundation in personal knowledge to testify about
accused’s conduct).

       These two criteria echo the court’s holding in United States v. Pompey, 33
M.J. 266, 270 (C.M.A. 1991), wherein the court addressed opinions on rehabilitation
in rebuttal. “Upon this premise, Ohrt and its progeny apply fully to rebuttal, just as
they do in the Government’s case-in-chief.” Id. at 270. “Where a rehabilitation
opinion lacks a proper ‘rational basis’ or presents a risk of command influence, the
opinion is no less objectionable because it is offered at the rebuttal stage rather than
at the aggravation stage of the sentencing proceeding.” Id.

       Based on the historical concerns with government sentencing evidence and the
specific holding of Griggs, it remains proper for a military judge to disallow a
question of or an answer by a witness regarding whether an accused should be
punitively discharged. 7 A military judge may also limit or disallow evidence,
which in context unduly suggests a recommendation on discharge. This applies
equally to prosecution and defense witnesses. See United States v. Ramos, 42 M.J.
392, 396 (C.A.A.F. 1995) (finding no error in a military judge’s instruction to
members to disregard defense sentencing witness statement that “he thinks [accused]
can still be a soldier in the Army”).




7
  “There can be a thin line between an opinion that an accused should be returned to
duty and the expression of an opinion regarding the appropriateness of a punitive
discharge.” Griggs, 61 M.J. at 409. In United States v. Edwards, 65 M.J. 622, 625
(N.M. Ct. Crim. App. 2007), a defense counsel attempted to ask a gunnery sergeant
whether he would still want the accused in his unit, if the accused had rehabilitative
potential in the Marine Corps, and whether the accused could be an asset in the
Marine Corps. The military judge sustained a government objection to all three
questions as “an opinion or euphemism for whether or not to retain [the accused].”
Id. The Navy-Marine court held the military judge committed error. Id. at 625-36.
Principally because it was a judge alone case, the court found the error harmless. Id.
at 636. We think that, at least as to the last two questions, the military judge was
within his discretion to sustain an objection, if in context it suggested the accused
not be punitively discharged, or if the opinion were not well-supported by a
foundation regarding knowledge of the accused and his character. Were the case
before members, we would expect the military judge to give an appropriate limiting
instruction emphasizing such evidence constitutes a personal opinion of an accused’s
character and not a specific recommendation on sentence.



                                           16
ESLINGER – ARMY 20070335

       Clearly, in this case, at several points, the defense opened the door to rebuttal
regarding “retention evidence.” Appellant’s statement that his fellow deploying
soldiers’ “lack of doubt in their minds that [he] would join them in continuing the
fight on terrorism” alone arguably would not have been subject to rebuttal. See
Cleveland, 29 M.J. at 363-64. However, the opinion expressed in the stipulated
testimony of SFC Dishman put in issue appellent’s continued place in the Army and
10th Special Forces Group. Likewise, MSG Gibbons’s opinion that appellant “needs
to stay in the service” provided another basis for rebuttal. 8 Similarly, CPT
Coffman’s opinion that he would like appellant to deploy with him to Iraq may have
been subject to rebuttal.

       However, several parts of the government’s rebuttal case conflicted with the
constraints laid out in Griggs. First, with regard to MAJ Peltier, SGM Krider, and
COL Tovo, the testimony of each of these witnesses was predicated on little to no
foundation for an opinion on appellant’s character. 9 In the absence of such a
foundation outlining these witnesses’ personal knowledge of appellant’s background
or character, 10 their subsequent testimony both lacks probity and increases the
potential for prejudicial misuse of their opinions. The general rule is that when and
whether an adequate foundation has been laid is a matter within the sound discretion
of the judge. Military Rule of Evidence [hereinafter Mil. R. Evid.] 104(a). When

8
  Based on our analysis, we think the military judge could have appropriately
provided a limiting instruction to the members when the trial counsel objected to
this specific statement. We also recognize opinion evidence about appellant’s
continued service “in the Army,” to which the trial counsel did not object, had
already been put in issue by the stipulation of expected testimony of SFC Dishman.
9
  The military judge acknowledged the scant foundation of these three witnesses in
overruling the cumulative objection to the testimony of CSM Sekelsky, the
government’s fifth rebuttal witness. The military judge first noted that defense was
within their rights to argue the previous government witnesses, with the possible
exception of MSG Stensgaard, did not really know the accused, but because “[t]his
witness appears to have some closer connection with the accused” CSM Sekelsky’s
testimony was not cumulative. We conclude CSM Sekelsky’s testimony was, in fact,
cumulative. See United States v. Ashby, 68 M.J. 108, 120 (C.A.A.F. 2009).
However, that does not affect our ultimate conclusion regarding prejudicial impact
on appellant’s sentence.
10
  The foundational requirement for a rebuttal witness to testify, as to a willingness
to serve with an accused again, may be less demanding than that required for a
rebuttal witness to render an opinion of an accused’s rehabilitative potential.
However, military judges must look to the principles of R.C.M. 1001(b)(5) to find a
rational basis and other evidentiary rules governing such testimony.



                                           17
ESLINGER – ARMY 20070335

dealing with government sentencing witnesses, particularly commanders in member
cases, we strongly suggest foundations be established first in an Article 39a, UCMJ
session or by proffer, as recommended by Ohrt, 28 M.J. at 307, n.6. A foundation
consisting of a recent acquisition of knowledge of an accused’s disciplinary history
(i.e., in preparation for testimony) should not typically be considered sufficient to
permit a meaningful opinion on character.

       We commend the military judge for sua sponte instructing the members to
disregard SGM Krider’s testimony, despite the failure of the defense to object,
because of the obvious lack of proper foundation, a point emphasized on cross-
examination. We conclude, however, that while not strictly applicable, both the
foundation and scope requirements of R.C.M. 1001(b)(5)(B)-(F), reflect proper
limits to government rebuttal to defense retention evidence. 11 These rules simply
restate the fundamental evidentiary requirements of witness competence reflected in
Mil. R. Evid. 601 and 701 (and paralleled in Mil. R. Evid. 405 and 608). Moreover,
even in rebuttal, government witnesses may not recommend or appear to recommend
a punitive discharge. Pompey, 33 M.J. at 270; Griggs, 61 M.J. at 409.

       Second, we are concerned with the potential for implication of command
influence, which underlies Ohrt and its progeny. When the government offers
testimony of a senior officer or commander in sentencing without first laying an
appropriate foundation, it suggests the government is using the witness's status to
improperly influence the panel's decision on sentence. Here the testimony of MAJ
Peltier, the acting battalion commander, was wholly devoid of foundation. Instead,
during his testimony, he repeatedly invoked the name—and sought to quote the
opinion of—the battalion commander regarding whether appellant should deploy and
remain in the SF Group and the Army. In addition to improperly reciting specific
facts of appellant’s prior disciplinary actions on direct examination, MAJ Peltier
noted those actions (reprimands) reflected the judgments of “a flag officer”
regarding appellant’s character. This effort to invoke the opinion of other and more
senior officers cannot substitute for the witness’s lack of articulated basis to rebut

11
   R.C.M. 1001(b)(5) regulates government rehabilitative potential evidence in its
case-in-chief, and was developed in response to concerns that such evidence may be
improperly based or construed as a recommendation to punitively discharge an
accused. Defense evidence reflecting willingness to serve or deploy with or retain
appellant is essentially rehabilitative potential evidence under R.C.M. 1001(c).
When the defense “opens the door” with such evidence, the government is free to
rebut whatever specific opinion is offered under R.C.M. 1001(d), not limited to
strict definitions of “rehabilitative potential” under R.C.M 1001(b)(5)(A). However,
the underlying framework of 1001(b)(5), particularly regarding foundation and basis
for the opinion and the scope of the testimony, as well as the prohibition on
recommendation of a punitive discharge, offer a logical and legally appropriate basis
to regulate government rebuttal to “retention” evidence.


                                          18
ESLINGER – ARMY 20070335

the defense witnesses. Likewise, the foundation for COL Tovo’s and SGM Krider’s
testimony was based on their positions within appellant’s brigade and battalion
command structure. We recognize the language of Griggs regarding rebuttal (“if the
accused opens the door . . . the Government is permitted to prove that is not a
consensus view of the command”) may appear to suggest the government should call
commanders or command representatives to rebut so called “retention evidence.” 61
M.J. at 410 (quotation and citation omitted). The focus, however, should be on the
ability of the witness to lay a proper foundation, rather than his rank or position. 12

      Third, we are concerned with the repeated, impermissible practice of
requesting these and all government rebuttal witnesses on direct examination to
explain the basis for their opinions. United States v. Rhoads, 32 M.J. 114, 115
(C.M.A. 1991). Inquiry into specific instances of conduct which support or
undermine the opinion are limited to cross or redirect examination. 13 Mil. R. Evid.

12
  We do not intend to suggest that trial counsel may not call commanders in
rebuttal. However, using senior level commanders as government sentencing
witnesses is often problematic. See United States v. Sanford, 29 M.J. 413, 415
(C.M.A. 1990) (using a battalion commander to testify about impact of drug abuse is
improper. “Though less blatant than other forms of command influence . . . the
practical effect of edifying a court-martial with a commander’s general views can be
the same.”). See also United States v. Gordon, 31 M.J. 30 (C.M.A. 1990) (using a
brigade commander to testify about impact of negligent homicide on unit is improper
sentencing evidence). Such witnesses generally lack the essential contact with and
personal knowledge of the accused and his character to provide appropriate
testimony. United States v. Armon, 51 M.J. 83 (C.A.A.F. 1999) (colonel testifying
about character of staff sergeant impermissibly lacked necessary foundation). The
testimony of senior noncommissioned officers who lack an adequate foundation may
also raise concerns of unlawful influence. Id.; United States v. Coraine, 31 M.J.
102, 106 (C.M.A. 1990). See United States v. Malone, 38 M.J. 707, 709-10
(A.C.M.R . 1993) (noting the Cherry/Ohrt rules were designed specifically to
address the court’s concern about the impact of commander opinion testimony).
“[C]ommanders should rarely testify adversely about an accused based solely on that
‘commander’s opinion’ of the accused and his crime.” Aurich, 31 M.J. at 97. The
court characterized such testimony as “merely the flip side of suppressing favorable
testimony,” noting it is “fraught with danger of undue and unlawful influence.” Id.
13
  This is indeed fundamental. See Crim. Law Dep’t, The Judge Advocate General’s
Legal Center and School, U.S. Army, The Advocacy Trainer, C-7-10 (2008) a basic

                                                                       (continued . . .)




                                          19
ESLINGER – ARMY 20070335

405(a). See also R.C.M. 1001(b)(5)(E) & (F). For government rehabilitation
witnesses, inquiry into relevant and specific instances of conduct is permitted only
on cross-examination or redirect. Id. On direct examination, a witness may not
explain the basis for his opinion. Rhoads, 32 M.J. at 116; United States v. Gregory,
31 M.J. 236, 238 (C.M.A. 1990). United States v. Sheridan, 43 M.J. 682, 684 (A.F.
Ct. Crim. App. 1995).

       Finally, we are concerned the government rebuttal to the specific defense
retention evidence was outside the parameters established by Griggs. In this case,
five government witnesses called for appellant’s discharge in the guise of rebuttal.
The witnesses testified appellant “shouldn’t even be in the Army,” “there is no place
in our ranks for Sergeant Eslinger,” and appellant cannot “remain in the U.S. Army
and effectively serve.” These remarks went beyond rebutting a defense witness’s
expressed willingness to continue serving with appellant, and in fact, called for the
panel to discharge appellant. While the defense may have “opened the door” with
the stipulated testimony of SFC Dishman, the military judge should have limited the
testimony or placed it in permissible context with a limiting instruction. Here, with
the exception of SGM Krider’s testimony, the military judge gave no limiting
instruction regarding the testimony of the government’s rebuttal witnesses. An
appropriate instruction must distinguish testimony of the willingness of a
servicemember to serve with an accused again, which may mitigate the range of
punishments, from testimony calling for a punitive discharge, which is for the
members to decide.

Error was Clear and Obvious

       Based on the foregoing analysis, we find clear and obvious error in the
admission of evidence which both lacked foundation and raised command influence
concerns, without proper limiting instruction. The evidence conflicted with the
guidance set forth in Griggs related to permissible government rebuttal to so-called
retention evidence. Griggs, 61 M.J. at 410.

       In sum, we conclude defense “retention” evidence constitutes a form of
rehabilitative potential evidence, which requires a proper foundation and may not be
construed as a recommendation on a specific sentence. As such, the historic
concerns of government misuse or misinterpretation of such evidence, reflected in
R.C.M. 1001(b)(5)(B)through (D) apply, even in rebuttal. The Ohrt court noted in
1989, “[F]or those reasons we do not permit an opinion of guilt or innocence, or of
‘truthfulness’ or ‘untruthfulness’ of witnesses, we do not allow opinions as to
appropriate sentences.” 28 M.J. at 305. In 2005, Griggs increased the range of

(. . . continued)
advocacy training manual that highlights the impropriety of asking a prosecution
sentencing witness to explain an opinion regarding an accused’s rehabilitative
potential on direct examination.


                                         20
ESLINGER – ARMY 20070335

retention evidence that could be offered. 61 M.J. 402. However, Griggs sets out
three essential requirements for so-called retention evidence, whether from the
defense or in government rebuttal. First, such testimony must be predicated on an
appropriate foundation. Id. at 407. Second, it cannot directly or by inference
comment on the appropriateness of a punitive discharge. Id. Finally when such
evidence is introduced before members, the military judge should give instructions
emphasizing “the distinction between a punitive discharge, which is for the members
to decide, and the willingness of a servicemember to serve with an accused again.”
Id. at 409. Because of the case law’s extensive history in this area, we hold the
error was clear and obvious.

Prejudice

       An erroneous admission or exclusion of evidence during the sentencing
portion of a court-martial is tested to determine if the error substantially influenced
the adjudged sentence. Griggs, 61 M.J. at 410 (citations omitted). If the error
substantially influenced the adjudged sentence, then the result is material prejudice
to appellant's substantial rights. UCMJ art. 59(a). We typically test for prejudice
using the factors set out in United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F. 1999).
However, for sentencing errors, we find the analysis set out in Saferite more useful.
United States v. Saferite, 59 M.J. 270, 274-75 (C.A.A.F. 2004). Per that analysis,
we consider: 1) the probative value and weight of the evidence; 2) the importance of
the evidence in light of other sentencing considerations; 3) the danger of unfair
prejudice resulting from the evidentiary ruling; and 4) the sentence actually
imposed, compared to the maximum and to the sentence the trial counsel argued for.
Griggs 61 M.J. at 413 (Crawford, J. dissenting) (citing Saferite, 59 M.J. at 274-75).

       We find the third factor favors a finding of prejudice, as appellant was tried
by members, and no limiting instruction was given when the evidence was
erroneously admitted. Members are less likely to separate relevant matters and make
their decisions based solely on admissible evidence. United States v. Wingart, 27
M.J 128, 136 (C.M.A. 1988) (holding that relaxing the rules of admissibility at
sentencing hearings would generate difficulties “especially . . . when sentencing is
by court members instead of by the judge”). The “experienced and professional
military lawyers who find themselves appointed as trial judges are assumed to be
able to appropriately consider only relevant material in assessing sentencing, the
same cannot be said for members.” United States v. Hardison, 64 M.J. 279, 284
(citations and quotations omitted). See also United States v. Bungert, 62 M.J. 346,
348 (C.A.A.F. 2006) (holding that “particularly in light of the fact that the
sentencing was by a military judge sitting alone,” appellant failed to show how
impermissible evidence had prejudiced him). In finding no prejudicial error, the
court in Aurich similarly based its finding on the fact the trial was before a judge
alone. Aurich, 31 M.J. at 97. See also United States v. Hill, 62 M.J. 271 (C.A.A.F.
2006); United States v. Fisher, 67 M.J. 617 (Army Ct. Crim. App. 2009) (court



                                          21
ESLINGER – ARMY 20070335

found judge alone forum significantly attenuated any prejudice in admission of
potentially improper sentencing evidence); United States v. Bridges, 66 M.J. 246
(C.G. Ct. Crim. App. 2008). Forum impacts the potential for prejudice, and when a
case is tried before members, appropriate guiding instructions may significantly
influence the prejudice analysis. See Griggs, 61 M.J. at 409-10; Cherry, 31 M.J. at
6; Hardison, 64 M.J. at 284. No instruction was given in this members case.

       We find the remaining three factors, however, favor a finding of no prejudice.
Here, the probative value and weight of the evidence was limited, given appellant’s
offenses. In this case the only offending testimony went to the issue of potential
discharge. We are convinced that no amount of mitigating and extenuating evidence
would have foreclosed the imposition of a punitive discharge for a soldier
possessing more than 1,700 images of child pornography, willfully collected, over
several years, at several locations. For these same reasons, we conclude the
importance of the erroneously admitted evidence in light of other sentencing
considerations is slight.

       Ultimately, our conclusion must be based on whether the error substantially
impacted appellant’s sentence, particularly with regard to a punitive discharge.
Here, while appellant had an excellent reputation for performance and had valorous
service in multiple deployments in over seventeen years of service, he also had a
significant history of disciplinary actions and civilian criminal misconduct. Finally,
the evidence also showed over the course of several years, he had possessed more
than 1,700 images and videos of child pornography.

       Appellant faced a maximum punishment that included thirty years
confinement and a dishonorable discharge. The trial counsel argued for a sentence
of five years confinement and a dishonorable discharge. The members sentenced
appellant to reduction to Private E1, total forfeitures, confinement for three years,
and a bad-conduct discharge. While we conclude the errors in this case had the
potential to prejudice appellant’s sentence, the panel’s sentence to one-tenth of the
maximum confinement and a lesser punitive discharge compellingly demonstrates
the erroneously admitted evidence did not substantially influence any part of
appellant’s sentence. For the same reasons, we arrive at a similar conclusion with
regard to the testimony of SGM Sekelsky, admitted over objection, on grounds of
cumulative evidence.

      Though we do not find prejudice in this case, we hold the foundation and
scope of testimony by government witnesses rebutting so-called defense retention
evidence must generally conform with the principles of R.C.M. 1001(b)(5)(B)-(D).
Moreover, we urge military judges in cases tried before members to provide
appropriate limiting instructions whenever such evidence is introduced. As an
appendix to this opinion we provide a suggested instruction, some version of which
might be useful if included in the Military Judges’ Benchbook.



                                          22
ESLINGER – ARMY 20070335

                                   CONCLUSION

      On consideration of the entire record, we hold the findings of guilty and the
sentence as approved by the convening authority correct in law and fact.
Accordingly, those findings of guilty and the sentence are AFFIRMED.

    Chief Judge TOZZI, Senior Judge JOHNSON, Judge HOFFMAN, Judge
COOK, Judge HAM, Judge SIMS, Judge BAIME and Judge GIFFORD concur.

CARLTON, Judge, concurring in the result:

       I concur. I however write separately to highlight my concern that the majority
opinion could be interpreted as limiting government rebuttal in sentencing to the
confines of Rule for Courts-Martial [hereinafter R.C.M.] 1001(b). I find the
majority’s use of R.C.M. 1001(b) to address error occurring during government
rebuttal in this case could prove confusing to the practitioner as to applicability of
R.C.M. 1001(b) to rebuttal. The majority uses R.C.M. 1001(b) to illustrate the
scope of appropriate rebuttal to rehabilitation testimony in light of the error herein
where defense presents retention mitigation evidence allowed by United States v.
Griggs, 61 M.J. 402, 410 (C.A.A.F. 2005). United States v. Eslinger, ___ M.J. ___
(Army Ct. Crim. App. 14 May 2010). However, R.C.M. 1001(b) applies to the
government’s sentencing case in aggravation and R.C.M. 1001(d) applies to rebuttal.
The majority’s use of R.C.M. 1001(b) in the context of discussing rebuttal seems to
blur the rules for aggravation and rebuttal and could therefore prove confusing to
practitioners.

       I agree with the majority that opinion testimony as to the accused’s
rehabilitative potential must possess a rational basis for the witness’s conclusions
founded upon the accused’s service, performance and character. The requirement
for a rational evidentiary foundation of personal knowledge for such opinion
testimony is not unique to R.C.M. 1001(b), but rather constitutes a basic
foundational requirement for the admission of any such opinion evidence. 1

1
  See Military Rule of Evidence [hereinafter M.R.E.] 401 (definition of relevant
evidence); M.R.E. 403 (balancing of probative value with potential prejudice);
M.R.E. 404 (character evidence not admissible to provide conformity in conduct);
M.R.E. 405 (methods of proving character); M.R.E. 602 (personal knowledge of



                                                                      (continued . . . )




                                          23
ESLINGER – ARMY 20070335

       The rules of evidence and jurisprudence applicable to rehabilitative potential
opinion evidence offered in rebuttal mirror the evidentiary rules applicable to
opinion testimony of rehabilitative potential offered in the government case in
aggravation as summarized by R.C.M. 1001(b)5(B)–(F). Military jurisprudence
clearly prohibits rebuttal evidence from circumventing the rules of evidence. See
United States v. Lowe, 56 M.J. 914 (N.M. Ct. Crim App. 2002) (finding government
barred from using hearsay evidence in form of specific instances of conduct to
impeach an opinion of defense mitigation evidence). See also United States v.
Manns, 50 M.J. 767 (N.M. Ct. Crim. App. 1999), aff’d 54 M.J. 164 (C.A.A.F. 2000).
In this case, however, rebuttal evidence faced no defense objection to a lack of
evidentiary foundation.

       With respect to the government rebuttal in this case, the majority provides
that the proper scope of government rebuttal was potentially clouded by the
presentation of defense “retention” evidence. Eslinger, ___ M.J. at ____. Griggs
explained that the government may rebut such defense retention evidence by
testimony that such opinion fails to constitute a “consensus view of the command.”
61 M.J. at 410 (quoting United States v. Aurich, 31 M.J. 95, 97 (C.M.A. 1990)). I
concur with the majority that the government is prohibited on rebuttal from
presenting testimony commenting on the appropriateness of a punitive discharge. I
also concur that the government is prohibited from presenting rebuttal testimony
lacking in evidentiary foundational requirements, even if the defense presents classic
mitigation evidence of retention evidence. Nothing in Griggs relieved the
government of its obligation to meet evidentiary foundational and relevance
requirements for rebuttal evidence. Alternatively, Griggs stated that the prohibition
of commenting on the appropriateness of a punitive discharge remained the rule for
both the defense and government. Griggs, 61 M.J. at 409. The Griggs court further
explained that this prohibition was not based upon R.C.M. 1001(b). Id. See also
United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) (prohibiting direct testimony and
inferences regarding the appropriateness of a punitive discharge). In sum, I
respectfully submit that the impact of Griggs provided no change to the rules for
rebuttal for the government, but instead clarified only that the door opened during
the defense case in mitigation for the defense to present classic mitigation evidence
pertaining to retention asserting that fellow soldiers would willingly serve with the
accused again. Griggs, 61 M.J. at 410.




(. . . continued)
matter required as basis for testimony to a matter); M.R.E. 701 (opinion testimony
by lay witness limited to opinions or inferences that are rationally based upon the
perception of the witness and helpful to clear understanding).




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ESLINGER – ARMY 20070335

       Substantial difference exists between evidence which may be initially
introduced by the government relative to sentencing and that which it may properly
present in rebuttal to the defense evidence. The government is not limited on
rebuttal to offering only evidence that would have been admissible in aggravation,
since the government rebuttal serves the purpose of rebutting the matters presented
by the defense. 2 R.C.M. 1001(d). However, in contrast, R.C.M. 1001(b)(4) limits
the scope of aggravation evidence to matters that directly relate to or result from the
offense and confusion could result from a practitioner’s misplaced application of
R.C.M. 1001(b) to rebuttal. R.C.M. 1001(b). In this case, however, the defense
failed to lodge proper objections where government rebuttal testimony exceeded its
permissible scope by commenting on or inferring the appropriateness of a punitive
discharge.

       In the case at bar, I agree with the majority that the government testimony in
rebuttal exceeded the bounds of appropriate rebuttal of defense retention evidence
testimony, and I further concur that the opinion testimony of the government rebuttal
witnesses lacked a sufficient evidentiary basis. Like the majority, I find no
prejudice to the accused resulted from these errors. Accordingly, I concur to affirm
the findings of guilty and the sentence in this case.




                                        FOR THE
                                            THECOURT:
                                                COURT:




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




2
  See United States v. Hallum, 31 M.J. 254 (C.M.A. 1990) (finding uncharged
misconduct proper rebuttal to good soldier evidence, court stated that rebuttal fell
within discretion of trial judge and was restricted by evidence made necessary by
opponent’s case); United States v. Morris, 62 M.J. 688 (N.M. Ct. Crim. App. 2006)
(no abuse of discretion found in admission of positive urinalysis on sentencing in
rebuttal in AWOL case where accused asserted that he went AWOL due to family
concerns; urinalysis suggested different motive for AWOL other than the altruistic
motive suggested by accused on sentencing).


                                          25
ESLINGER – ARMY 20070335

                                     APPENDIX

NOTE: In a sentencing case before members, when a witness offers evidence
which might be construed as comment on the appropriateness of a punitive
discharge, the military judge should give the following instruction, tailored to
the specific evidence.

For evidence offered in extenuation or mitigation

You have heard the testimony of [a] witness[es] indicating an opinion regarding [a
desire to continue to serve with the accused] [a desire to deploy with the accused]
[the accused’s rehabilitative potential]. The opinion of a fellow service member
indicating [a desire to continue to serve with] [a desire to deploy with] [the positive
rehabilitative potential of] an accused is a matter pertaining to the accused’s
character which may mitigate the range of permissible punishments you adjudge.

For evidence offered in aggravation or rebuttal

The opinion of a witness [that he or she does not wish to continue to serve with the
accused] [that the accused should not [deploy with] [or] [return to] the unit] [that the
accused has limited rehabilitative potential] is not an aggravating factor and you
cannot use that evidence to increase the severity of the accused’s sentence.

Concluding Instruction

You may not consider such testimony as a recommendation regarding the
appropriateness of a punitive discharge or any other specific sentence in the
accused’s case. Whether or not the accused should receive the severe punishment of
a punitive discharge or any other punishment is a matter for you alone to decide in
the exercise of your independent discretion based on your consideration of all the
evidence you have heard. No witness may suggest a specific element of punishment
or sentence. [This rule does not apply to testimony by the accused regarding
personal requests he/she may make in relation to specific punishments.]

In evaluating the ability of a witness to comment on the accused’s character, you
should consider how well the witness knows the accused, and the nature, quality,
and history of contacts the witness has had in determining the value of any opinion
the witness may render with regard to the accused.




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