                         UNITED STATES, Appellee

                                    v.

                  Christopher J. CLARK, Senior Airman
                       U.S. Air Force, Appellant

                              No. 10-0588

                         Crim. App. No. 37499

       United States Court of Appeals for the Armed Forces

                       Argued December 15, 2010

                         Decided March 7, 2011

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.

                                 Counsel

For Appellant: Captain Nicholas W. McCue (argued); Lieutenant
Colonel Gail E. Crawford and Major Anthony D. Ortiz (on brief);
Colonel Eric N. Eklund.

For Appellee: Captain Michael T. Rakowski (argued); Colonel Don
Christensen, Captain Joseph J. Kubler, and Gerald R. Bruce, Esq.
(on brief).

Military Judge:    William E. Orr Jr.




       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Clark, No. 10-0588/AF


     Judge BAKER delivered the opinion of the Court.

     At a general court-martial convened at Holloman Air Force

Base, New Mexico, a panel composed of officer and enlisted

members convicted Appellant, contrary to his pleas, of one

specification of attempting to communicate indecent language to

a child under the age of sixteen and one specification of using

the Internet to transfer sexually explicit electronic images to

a person he believed had not attained the age of sixteen, in

violation of Articles 80 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 880, 934 (2006).    The adjudged and

approved sentence consists of a bad-conduct discharge,

confinement for eighteen months, reduction to E-1, and a

reprimand.

     On review, the United States Air Force Court of Criminal

Appeals affirmed.    United States v. Clark, No. ACM 37499, 2010

CCA LEXIS 182, at *20, 2010 WL 2265672, at *7 (A.F. Ct. Crim.

App. Apr. 30, 2010).

     We granted review of the following issues:

     I.      WHETHER IT WAS PLAIN ERROR FOR TRIAL COUNSEL TO
             ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND
             VERBALLY WHEN ARRESTED, AND THEN RELY ON THIS
             TESTIMONY DURING CLOSING ARGUMENT.

     II.     WHETHER THE MILITARY JUDGE COMMITTED
             CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND
             A REASONABLE DOUBT WHEN HE OVERRULED DEFENSE
             COUNSEL’S OBJECTION DURING TRIAL COUNSEL’S
             IMPROPER REBUTTAL ARGUMENT.



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United States v. Clark, No. 10-0588/AF


     For the reasons set forth below, we conclude that it

was plain or obvious error for trial counsel to elicit

testimony of Appellant’s failure to respond verbally to an

accusation when apprehended and then rely on this testimony

in his closing argument.    We further conclude that the

military judge committed constitutional error when he

overruled Appellant’s objection during trial counsel’s

improper rebuttal argument.      However, we also conclude that

these violations were harmless beyond a reasonable doubt.

Therefore, we affirm the United States Air Force Court of

Criminal Appeals.

                            I.   BACKGROUND

                       A.   The Investigation

     On April 25, 2008, Appellant entered a Yahoo chat room from

his personal computer on base under the username

“thedude94_2000” and initiated a conversation with

“cuti3pi32008,” an undercover officer who identified himself as

a thirteen-year-old girl named “Suzie.”       Upon adding each other

as “friends,” Appellant’s subsequent messages to “Suzie” showed

up as “Chris Clark.”   During the course of their messaging,

Appellant sent “Suzie” erotic images, engaged in sexual

conversation, and ultimately invited “Suzie” to have sex and

asked for her address and phone number.       The officer gave

Appellant a phone number and the address to a decoy house.


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United States v. Clark, No. 10-0588/AF


Appellant never went to the house, called the phone number, or

communicated with “Suzie” again.

     Appellant’s identity was confirmed with a photograph from

the Defense Enrollment Eligibility Reporting System (DEERS), and

agents and security forces went to Appellant’s home later that

night.   They detained him outside while they performed an

initial sweep of his home for other occupants.   Special Agent

(SA) Billy Garcia, one of the agents who conducted the sweep,

testified in response to trial counsel’s questions that after

performing the initial sweep, the agents returned to Appellant

and “told him that we had been notified that he had been

sexually communicating with a minor; a child.”   He further

testified that in response, “[Appellant] didn’t say anything, he

kind of just put his head down and kind of just looked down” and

slumped his shoulders.   The agents and security forces then went

with Appellant back into the home, where agents searched for

evidence and found a notebook near Appellant’s computer in which

was written “thedude94_2000.”

     Senior Airman Eric Clark, a member of the security forces,

testified that he and his partner escorted Appellant into

another room in the house, “where we sat him down and we were to

watch him while they completed searching the house.”   He further

testified that while they were watching Appellant, Appellant

made an unsolicited statement “that he had spoken to a minor on


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United States v. Clark, No. 10-0588/AF


the Internet.   That the girl was -- he said that he knew that

she was underage” and “that he suspected she was a cop.”

     Appellant was subsequently transported to OSI to be

interviewed by agents.    At that point, OSI agents read Appellant

his rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831 (2006),

for the first time.    SA Garcia testified that during the

interview he “[t]old [Appellant] the same thing that we told him

earlier at his home.   That he was suspected of communicating

sexually with a minor.”   When trial counsel asked, “And did he

say anything in response to you this time?” SA Garcia responded,

“No he didn’t.”   At some point, Appellant elected not to have an

attorney present and agreed to answer questions.   Appellant

admitted that his username was “thedude94_2000,” that he knew

“cuti3pi32008” was thirteen, that he had sent her the images,

and that he used sexually explicit language.   Appellant also

provided a sworn written statement of these admissions:

     The 25th of April 2008 I was talking to a 13 yr old from
     Clovis NM. I started of [sic] talking about who is she and
     where she’s from. Then I asked sexuall [sic] questions
     such as you ever been with a guy. She said yes and I asked
     how old was he. Then I asked more questions such as you
     want to see pictures. She said sure. So I showed her 7 to
     8 pictures. 3-4 were of a girl on a bed. Covered in 2 and
     showing in the other 2. Then I also showed 3 intercourse
     pictures. 1 nonintercourse but still nude pics. Then I
     asked here [sic] where she lived and her phone number. . .
     . Of the pics I showed the 13 yr old only one was of me
     blowing a kiss.




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United States v. Clark, No. 10-0588/AF


 Following the interview, while waiting for the first sergeant

to arrive, Appellant commented that the agents “had caught him

red-handed.”

                       B.   Trial Proceedings

     At various stages during the trial proceedings, trial

counsel made reference to Appellant’s physical and verbal

responses to the accusations presented by SA Garcia, either by

direct comment or by eliciting a response during examination of

a witness.   Appellant cites five specific instances of these

references giving rise to the issues presented in this case.

     First, during his opening statement at trial, trial counsel

made the following statement:

     You will hear how when confronted with being suspected of
     criminally speaking or communicating with a minor with
     sexual language, the accused’s shoulders slumped and his
     head dropped; chin to chest.

     Second, during direct examination of SA Garcia, trial

counsel engaged in the following series of questions regarding

Appellant’s initial apprehension:

     [Trial Counsel: W]hat did you tell [Appellant] as to why
     the reason you were there?

     [Witness:] We told him that we had been notified that he
     had been sexually communicating with a minor; a child.

     . . . .

     [Trial Counsel:] And when you told him that, do you recall
     what his response was?




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United States v. Clark, No. 10-0588/AF


     [Witness:] Yeah, well he didn’t say anything, he just kind
     of put his head down and kind of just looked down.

     . . . .

     [Trial Counsel:]     Did he say anything?

     [Witness:]   No.

     Third, trial counsel proceeded to question SA Garcia

regarding his post-rights advisement interview with Appellant:

     [Trial Counsel:] Did you ever explain to the accused or
     tell the accused why he was there?

     . . . .

     [Witness: We t]old him the same thing that we told him
     earlier at his home. That he was suspected of
     communicating sexually with a minor.

     [Trial Counsel:]     And did he say anything in response to
     you this time?

     [Witness:]   No, he didn’t.

     Fourth, during his closing arguments, trial counsel made

the following comments:

     [B]efore he’s interviewed with OSI, they go to his house.
     Remember that testimony? They go to his house, Agent
     Garcia walks up to the accused, and quite clearly the
     accused was looking into his eyes. They looked. Agent
     Garcia walked up to him and said, you are under suspicion
     of criminal communication with a minor. What is the
     accused’s response when he’s confronted with this fact?
     Does he say, what? Does he say, no? What does he do?
     Sometimes body language is just as powerful as verbal
     confessions. When he’s confronted with this disgusting
     crime that he just committed, his shoulders slump and he
     puts his head down. That is a defeated position. He’s
     confronted and he’s caught.

          . . . .



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United States v. Clark, No. 10-0588/AF


          But there’s more. He’s taken to OSI, he’s placed in a
     room, agents walk into the room, and again they confront
     them [sic]. You are under suspicion for criminally
     communicating with a minor in a sexual manner. Second
     time. Hours later at this point he’s confronted with what
     he had just done. And what is his response? Nothing. He
     doesn’t respond to that comment.

     And finally, following defense counsel’s closing argument,

trial counsel made the following rebuttal argument:

     Come on, members. Nobody asked you to leave your common
     sense at the door. No one. The defense says the first
     thing he says is, “I knew it was a cop.” Was that the
     first thing he said? Or was the first thing he said by
     body language, a defeated position when he’s confronted
     with speaking with a minor. Does he say, wait a minute
     Detective Garcia. Hold on there, just a sec. I was just
     kidding. I actually knew it was a cop when I sent that
     language. Does he say that? I accuse you of speaking
     sexually with a child. I accuse you of speaking sexually
     with a child. No comments, no denial, no response.

Defense counsel objected only to trial counsel’s rebuttal

argument.   In overruling the objection, the military judge said,

“I’m going to overrule it just on the basis that -– in the

context in which he’s using it.    So, I’ll overrule your

objection right now, but be careful, trial counsel.”

                           II.   DISCUSSION

            A.   Direct Examination and Closing Argument

     Whether there has been improper reference to an accused’s

exercise of his constitutional rights is a question of law that

we review de novo.   United States v. Moran, 65 M.J. 178, 181

(C.A.A.F. 2007) (citing United States v. Alameda, 57 M.J. 190,

198 (C.A.A.F. 2002)).   Because the asserted errors regarding


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United States v. Clark, No. 10-0588/AF


trial counsel’s references during the opening statement, direct

examination of SA Garcia, and closing argument were not

preserved at trial, this Court reviews them for plain error.

Id.

        Whether there was plain error is a question reviewed de

novo.    Id.   To find plain error, Appellant must show that there

is error, that the error was plain or obvious, and that the

error materially prejudiced his substantial rights.    See United

States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998).

        Servicemembers have a constitutional, statutory, and

regulatory right to silence.    U.S. Const. amend. V; Article 31,

UCMJ; Military Rules of Evidence (M.R.E.) 304(h)(3); see also

United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005).       Thus,

it is settled that the government may not use a defendant’s

exercise of his Fifth Amendment rights as substantive evidence

against him.    United States v. Gilley, 56 M.J. 113, 120

(C.A.A.F. 2001) (citing Griffin v. California, 380 U.S. 609,

614) (1965)).    M.R.E. 304(h)(3) safeguards this right, further

providing:

        A person’s failure to deny an accusation of wrongdoing
        concerning an offense for which at the time of the alleged
        failure the person was under official investigation or was
        in confinement, arrest, or custody does not support an
        inference of an admission of the truth of the accusation.

Thus, in Alameda, we held that, “based on the language of Mil.

R. Evid. 304(h)(3) and what we perceive to be the weight of


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United States v. Clark, No. 10-0588/AF

authority in the federal circuits,” it is constitutional error

“to introduce evidence of appellant’s post-apprehension silence

as substantive evidence of guilt, and to then comment on that

evidence in closing argument.”    57 M.J. at 199.   “A lack of

response or reaction to an accusation is not ‘demeanor’

evidence, but a failure to speak.”     Id. (citing United States v.

Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir. 2001)).

      The lower court distinguished this case from Alameda on the

basis that “[u]nlike the accused in Alameda, the appellant’s

response,” as described in testimony and by trial counsel, “was

not mere silence, but instead a clear physical reaction without

words.”   Clark, 2010 CCA LEXIS 182, at *16, 2010 WL 2265672, at

*6.   Therefore, the CCA concluded it constituted “proper

demeanor evidence. . . . [that] is admissible to show the

accused’s consciousness of guilt and . . . is a proper subject

of comment by counsel.”   Id.    The lower court further concluded,

“[a]rguably, the question ‘what did he say’ crossed the line”

and “trial counsel also made passing reference to the

appellant’s lack of verbal response during his argument;

however, it is clear from the context of the argument that the

comment was in fact focused on the demeanor evidence.”    Id. at

*16-*17, 2010 WL 2265672, at *6.

      The central question in this case is whether some or all of

the testimony and statements by trial counsel refer to


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United States v. Clark, No. 10-0588/AF

Appellant’s right to silence, or whether they are more

accurately described as testimony and statements regarding

Appellant’s nontestimonial demeanor.    We disagree with the

court’s conclusion that the focus of the statements was on the

nontestimonial character of the demeanor evidence, or that such

“focus” is determinative on this issue.    We turn first to the

subject of demeanor evidence.

                        I.   Demeanor Evidence

     In light of the CCA’s analysis of “demeanor evidence,” we

begin with a review of the law regarding the admissibility of an

accused’s demeanor in light of established Fifth Amendment and

relevance principles.   In doing so, we recognize that the lines

between the various categories of demeanor are not always clear.

See United States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011).

Thus, it is also necessary for us to establish a framework

within which to analyze its admissibility.

     “Demeanor” evidence is evidence that describes or portrays

“[o]utward appearance or behavior, such as facial expressions,

tone of voice, gestures, and the hesitation or readiness to

answer questions.”   Black’s Law Dictionary 496 (9th ed. 2009).

In its traditional sense, demeanor merely refers to the

nonverbal conduct of a testifying witness or of the accused

while on the witness stand or in the courtroom, rather than

evidence counsel may seek to formally admit under the rules of


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United States v. Clark, No. 10-0588/AF

evidence.    See 1A Wigmore on Evidence § 24, at n.5 (Tiller rev.

1983); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998)

(citing 2 Wigmore on Evidence § 274(2) at 119-20 (Chadbourne

rev. 1979) (“the attempt to force a jury to become mentally

blind to the behavior of the accused sitting before them

involves both an impossibility in practice and a fiction in

theory”)).   However, demeanor evidence may also include physical

evidence (a photograph) or real evidence, as in the case of

physical observations made by a witness testifying, including

other exemplars used to identify the accused (e.g., where the

suspect was made “‘to stand, to assume a stance, to walk, or to

make a particular gesture’”).    Pennsylvania v. Muniz, 496 U.S.

582, 591 (1990) (quoting Schmerber v. California, 384 U.S. 757,

764-65 (1966)).   Furthermore, an accused’s demeanor has been

admitted where it is relevant to an accused’s “consciousness of

guilt” under M.R.E. 404(b), such as in cases of an accused

fleeing from the scene of a crime or destroying evidence, or in

cases of witness or prosecutor intimidation, see, e.g., Moran,

65 M.J. at 188; Cook, 48 M.J. at 66; United States v. Staton, 69

M.J. 228, 230 (C.A.A.F. 2010).   These categories of evidence of

an accused’s demeanor are generally nontestimonial and thus

admissible and subject to appropriate comment where relevant

under the rules of evidence.




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United States v. Clark, No. 10-0588/AF

     Demeanor evidence may also be testimonial, however, such as

where an accused points to the scene of a crime and then to

himself while nodding his head up and down in response to police

questioning.   See Muniz, 496 U.S. at 594 (defining “testimonial”

as “‘communication [that] itself, explicitly or implicitly,

relate[s] a factual assertion or disclose[s] information’”

(quoting Doe v. United States, 487 U.S. 201, 210 (1988))).

Testimonial demeanor, like other testimonial evidence in

response to police questioning, implicates an accused’s right to

silence and against self-incrimination, thus triggering the

application of the Fifth Amendment and its statutory and

regulatory safeguards.   See Schmerber, 384 U.S. at 761 n.5, 763-

65 (noting that “[i]t is clear that the protection of the

privilege [against self-incrimination] reaches an accused’s

communications, whatever form they might take” and that “[a] nod

or head-shake is as much a ‘testimonial’ or ‘communicative’ act

in this sense as are spoken words”).   Even where demeanor is

nontestimonial, improper commentary on the accused’s silence in

response to police questioning when presenting evidence of an

accused’s demeanor may nevertheless implicate the same rights

and protections as testimonial evidence.   Cf. Griffin, 380 U.S.

at 615 (holding that the Fifth Amendment “forbids . . . comment

by the prosecution on the accused’s silence”); Alameda, 57 M.J.

at 199.   Thus, where the evidence concerns testimonial demeanor


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United States v. Clark, No. 10-0588/AF

or includes improper commentary on the accused’s silence, that

demeanor evidence is generally inadmissible under the Fifth

Amendment and its statutory and regulatory safeguards, unless

the accused waives those rights or otherwise invites the

evidence.   See, e.g., United States v. Robinson, 485 U.S. 25,

32-34 (1988) (holding that the privilege against self-

incrimination is not violated when the prosecutor’s reference to

the defendant’s silence is a “fair response to a claim made by

defendant or his counsel”).

     Based on the foregoing, a framework for assessing the

admissibility of the evidence of an accused’s demeanor emerges.

First, we must identify the demeanor at issue and ask whether

the demeanor is itself testimonial or not testimonial in nature,

or whether evidence of the demeanor at issue includes improper

commentary on the accused’s silence.   If evidence of an

accused’s demeanor is testimonial or includes an improper

comment on silence, we analyze the evidence under the Fifth

Amendment or applicable statutory and regulatory safeguards.

Where the evidence is neither testimonial nor an improper

comment on silence, we then consider whether the accused’s

demeanor was relevant under M.R.E. 404(b) or other evidentiary

rules relating to relevance.   Therefore, the fact that trial

counsel’s comments were merely “focused on” nontestimonial

demeanor is not dispositive in any case.


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United States v. Clark, No. 10-0588/AF

                          1.   Plain Error

     In this case, we need not find the fine line that might

exist between nontestimonial demeanor evidence, like a mere

shoulder slump or head shrug, and the shoulder slump or head

shrug that is testimonial and communicative in nature.   For

whatever may be inferred from the testimony in this case

regarding Appellant’s physical responses while being questioned

at his home, trial counsel’s questions and statements clearly

and repeatedly used Appellant’s silence and body language as

expressions of guilt.   Trial counsel’s comments in his opening

statement, direct examination of SA Garcia, and closing argument

constituted plain error because they clearly commented on

Appellant’s silence in response to SA Garcia’s post-

apprehension, pre-advisement accusation of criminal conduct, in

violation of M.R.E. 304(h)(3) and the Fifth Amendment right to

silence.1   A review of each statement indicates why.


1
  Thus, we are also not required to proceed to the second step of
the demeanor analysis and decide here whether Appellant’s
demeanor was relevant to consciousness of guilt under M.R.E.
404(b) or as real or physical evidence. We do note that
demeanor evidence is relevant to an accused’s consciousness of
guilt only in cases where the inference of guilt is clear, see
e.g., Moran, 65 M.J. at 188 (holding that evidence of the
accused shaving all of his body hair after learning that
investigators wanted a hair sample was relevant); Cook, 48 M.J.
at 66 (citing examples of witness intimidation, such as making a
hand gesture in the shape of a gun and mouthing the words
“‘you’re dead’” in the courtroom) (citation omitted); Staton, 69
M.J. at 231 (attempting to run over the prosecutor in the
parking lot). Subtle physical demeanor is not admissible as

                                 15
United States v. Clark, No. 10-0588/AF

     First, trial counsel’s opening statement referred to

Appellant’s reaction -- “shoulders slumped and his head dropped;

chin to chest” -- as his response to being “confronted with

being suspected of criminally speaking or communicating with a

minor with sexual language.”   Rather than describe Appellant’s

body movements as one of a series of events to describe what was

happening, trial counsel was conveying that Appellant failed to

deny the accusation.

     In addition, during direct examination of SA Garcia, trial

counsel not only elicited explicit comments on Appellant’s

response of silence but explicitly commented on Appellant’s

silence himself in the examination questions.   Trial counsel

asked, “[a]nd when you told him [the accusation], do you recall

what his response was?,” and “Did he say anything?” -- to which

SA Garcia replied, “he didn’t say anything,” and “No.”

(Emphasis added.)

     Moreover, although Appellant’s response to SA Garcia during

the OSI interview occurred after Appellant waived his rights,


relevant to an accused’s consciousness of guilt, because it is
equally susceptible to other inferences. See Cook, 48 M.J. at
67 (holding that yawning by the accused during testimony of the
effects of child abuse was irrelevant where the appellant was
familiar with the evidence “because he previously had been
counseled by the first sergeant for child abuse”); id. at 66
(citing other examples of irrelevant demeanor by the accused,
such as laughing during testimony that the accused threatened
the life of the President, consulting with counsel during trial,
or moving a leg up and down in a seemingly nervous fashion
during trial).

                                16
United States v. Clark, No. 10-0588/AF

trial counsel’s questions and the elicited responses made clear

reference to Appellant’s pre-rights advisement response of

silence.    SA Garcia testified “[We t]old him the same thing that

we told him earlier at his home,” to which trial counsel

responded, “And did he say anything in response to you this

time?”     (Emphasis added).

     Finally, trial counsel relied on these comments in his

closing argument to explicitly argue that Appellant’s silence

evidenced his guilt:

     What is the accused’s response when he’s confronted with
     this fact? Does he say, what? Does he say, no? What does
     he do? Sometimes body language is just as powerful as
     verbal confessions. When he’s confronted with this
     disgusting crime that he just committed, his shoulders
     slump and he puts his head down. That is a defeated
     position.

Trial counsel’s closing argument is more direct than the closing

argument made by trial counsel in Alameda:

     “. . . And lo and behold, the cops came and picked me up,
     and I was just sitting there on the steps, didn’t know what
     this was about,” but didn't bother even to ask.

     . . . .

     [Trial Counsel]: And when Sergeant Moody approaches him on
     the steps and says, “Are you Tedio Alameda? Stand up. . .
     . Let me see your identification card.” He doesn't even
     say, “What’s this all about?”

57 M.J. at 196.    The rhetorical questions employed by trial

counsel in each case clearly suggested to the panel that an

innocent person would have said something; therefore, the



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United States v. Clark, No. 10-0588/AF

accused’s silence was being used as evidence of guilt.     Indeed,

trial counsel stated that Appellant’s demeanor was “body

language [that] is just as powerful as [a] verbal confession[].”

       The Fifth Amendment cannot with one hand protect an accused

from being compelled to testify and yet with the other hand

permit trial counsel to argue that an accused’s silent demeanor

in response to an accusation of wrongdoing is tantamount to a

confession of guilt.    These kinds of arguments are exactly what

M.R.E. 304(h)(3)2 addresses.     As this Court has made clear in

other cases, “[s]uch comments may serve to hinder the free

exercise of such rights -– rights that carry with them the

‘implicit assurance that [their] invocation . . . will carry no

penalty.’”    Moran, 65 M.J. at 181 (alteration in original)

(quoting United States v. Daoud, 741 F.2d 478, 480 (1st Cir.

1984)).

                        A.   Rebuttal Argument

       The second issue relates to trial counsel’s rebuttal

argument.    Unlike the errors related to the first issue,




2
    M.R.E. 304(h)(3) provides:

       A person’s failure to deny an accusation of wrongdoing
       concerning an offense for which at the time of the alleged
       failure the person was under official investigation or was
       in confinement, arrest, or custody does not support an
       inference of an admission of the truth of the accusation.


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United States v. Clark, No. 10-0588/AF

Appellant objected to these comments, thus preserving the error

and subjecting it to a separate analysis.

       The Government argues that trial counsel’s comments on

rebuttal were invited as fair response to Appellant’s general

argument that Appellant thought “Suzie” was a cop.

       “[T]he Government is permitted to make ‘a fair response’ to

claims made by the defense, even when a Fifth Amendment right is

at stake.”    Gilley, 56 M.J. at 120 (citing Robinson, 485 U.S. at

32).   In order to determine whether trial counsel’s comments

were fair, we must examine them in context.   Id. at 121.   “In

reviewing the actions of the military judge, we must ask

whether, given the defense theory of the case, trial counsel’s

comments were fair.”   Id. at 123.

       The theory behind defense counsel’s closing argument was

that Appellant suspected “Suzie” was a law enforcement officer

all along and that he confessed to knowing that “Suzie” was a

thirteen-year-old girl only because that is what he was being

told to do.   At one point, defense counsel argued:

       What is it that Airman Clark said right from the start? “I
       thought it was a cop.” And he didn’t say that because
       someone told him that really was a cop you were chatting
       with. Because what he was being told is that really was a
       13-year-old girl. That really was a 13-year-old girl and
       what was his response? “It sounded like a cop; I thought
       it was a cop.”

            Now in his statements to OSI, trial counsel wants you
       to only believe those statements that support their
       position on this case. They only want you to believe the


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United States v. Clark, No. 10-0588/AF

     part in there where Airman Clark refers to the person as a
     13-year-old girl. Of course, why is he referring to it as
     a 13-year-old girl, that’s what everyone was telling him
     that who he was chatting with was a 13-year-old girl.

     In rebuttal, trial counsel argued:

     The defense says the first thing he says is, “I knew it was
     a cop.” Was that the first thing he said? Or was the
     first thing he said by body language, a defeated position
     when he’s confronted with speaking with a minor. Does he
     say, wait a minute Detective Garcia. Hold on there, just a
     sec. I was just kidding. I actually knew it was a cop
     when I sent that language. Does he say that? I accuse you
     of speaking sexually with a child. I accuse you of
     speaking sexually with a child. No comments, no denial, no
     response.

     Trial counsel may use the fact of post-arrest silence “‘to

contradict a defendant who testifies to an exculpatory version

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

upon arrest,’” thus acting not as substantive evidence of guilt

but rather as a “‘challenge [to] the defendant’s testimony as to

his behavior following arrest.’”       Gilley, 56 M.J. at 120

(quoting Doyle v. Ohio, 426 U.S. 610, 619-20 n.11 (1976)).

However, trial counsel is prohibited from “‘treat[ing] the

defendant’s silence as substantive evidence of guilt.’”         Id. at

121 (quoting Robinson, 485 U.S. at 32); M.R.E. 304(h)(3).         That

is what trial counsel did here.    He did not merely rebut

Appellant’s assertion that he thought “Suzie” was a law

enforcement officer, he argued through Appellant’s demeanor that

“the first thing he said by body language, a defeated position




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United States v. Clark, No. 10-0588/AF

when he’s confronted with speaking with a minor. . . . No

comments.   No denial.   No response.”

     This is not a scenario where Appellant testified to making

an exculpatory statement to the police after his arrest, when in

fact he did not.   Nor did defense counsel argue that the “first”

thing Appellant said was, “I thought it was a cop.”       Defense

counsel could not have made that argument for obvious reasons.

He was relying on Senior Airman Clark’s testimony of Appellant’s

spontaneous unwarned statement that Appellant “had spoken to a

minor on the Internet.   That the girl was -- he said that he

knew that she was underage,” and that Appellant “suspected that

she was a cop.”    Furthermore, despite defense counsel’s theory,

defense counsel acknowledged in his closing argument that

Appellant made other statements to OSI “referring to [“Suzie”]

as a thirteen-year-old girl.”     Thus, taken in context, defense

counsel’s closing argument did not invite trial counsel to argue

what Appellant said “first,” or rather what Appellant said

“first” through “body language.”        Such statements went beyond

what was permissible as fair response and used Appellant’s

demeanor and silence as evidence of guilt.       Under Alameda this

is constitutional error.

                           A.   Harmlessness

     “For constitutional error, we must be satisfied beyond a

reasonable doubt that the error was harmless.”       Alameda, 57 M.J.


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United States v. Clark, No. 10-0588/AF

at 199-200.   Whether the errors in this case were preserved or

unpreserved, our review of the facts results in the same

conclusion:   any errors in this case were harmless beyond a

reasonable doubt.

     The Government’s case against Appellant was supported by

substantial evidence.   Appellant was positively identified by

his name and contact information online after Appellant became

“friends” with “Suzie.”   His online information was later

visually matched through the DEERS, and confirmed upon the OSI

agents’ arrival at Appellant’s home.    OSI agents recovered

Appellant’s notebook near his computer containing the same user

name Appellant had used to communicate with “Suzie.”   Appellant

spontaneously remarked to Senior Airman Clark that he knew that

“Suzie” was underage.   And, Appellant affirmatively waived his

Fifth Amendment rights at the OSI office, admitting both in the

interview and in a sworn statement to sexual communications with

someone he believed to be thirteen years old.   Appellant’s case,

on the other hand, rests entirely on the fact that Appellant

stated that “he suspected [“Suzie”] was a cop,” without being

able to contradict any of the Government’s evidence.

                          III.   CONCLUSION

     For the foregoing reasons, the decision of the United

States Air Force Court of Criminal Appeals is affirmed.




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