                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     V.

                   Jeffrey D. WALKER, Staff Sergeant
                          U.S. Army, Appellant


                               No. 01-0762


                         Crim. App. No. 9801091



       United States Court of Appeals for the Armed Forces

                         Argued March 20, 2002

                        Decided August 23, 2002

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

                                  Counsel
For Appellant: Captain Fansu Ku (argued); Colonel Adele H.
   Odegard, Lieutenant Colonel E. Allen Chandler, Jr., Major
   Mary M. McCord, and Captain Runo C. Richardson (on brief);
   Captain Linda A. Chapman.

For Appellee: Captain Charles C. Choi (argued); Colonel Steven
   T. Salata and Major Paul T. Cygnarowicz (on brief).

Military Judges:     Paul L. Johnston and Donna L. Wilkins


  This opinion is subject to editorial correction before final publication.
United States v. Walker, No. 01-0762/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of two

specifications of committing indecent acts with a child, in

violation of Article 134, Uniform Code of Military Justice

(UCMJ), 10 USC § 934.      The adjudged and approved sentence

provides for a bad-conduct discharge, confinement for four years,

and reduction to the lowest enlisted grade.        The convening

authority waived, for a period not to exceed six months, the

automatic forfeitures resulting from the sentence under Article

58b, UCMJ, 10 USC § 858b.       The Court of Criminal Appeals affirmed

the findings and sentence.       54 MJ 568 (2000).

      This Court granted review of the following issue:

      WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED WHEN IT
      HELD THAT THE ADMISSION OF THE STATEMENT OF APPELLANT’S WIFE
      WAS HARMLESS ERROR.

For the reasons set out below, we reverse.

                                 Background
      The incident giving rise to the charges against appellant

occurred in Illesheim, Germany, shortly before appellant’s
reassignment to the United States.        The 11-year-old alleged

victim, TR, was a friend of appellant’s stepdaughter, Tamara.

      The statement at issue was made by appellant’s wife, Mrs.

Theresa Walker, in response to questioning by Special Agent (SA)

Reasoner, an investigator from the U.S. Army Criminal

Investigation Command (CID).        In the statement, Mrs. Walker told

SA Reasoner that appellant told her what happened, but that she

did not wish to disclose it.




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United States v. Walker, No. 01-0762/AR


      Before trial, the Government indicated its intent to call

Mrs. Walker as a prosecution witness.     At an evidentiary hearing,

the defense presented a stipulation of expected testimony,

establishing that Mrs. Walker would invoke her spousal privilege

and would refuse to testify against her husband.     The Government

argued that Mrs. Walker’s statement to SA Reasoner was an

admission by appellant under Mil.R.Evid. 801(d)(2), Manual for

Courts-Martial, United States (2000 ed.).1     Alternatively, the

Government argued that the statement was admissible as residual

hearsay under Mil.R.Evid. 804(b)(5).2     The defense argued that

the statement was privileged under Mil.R.Evid. 504.     Over defense

objection, the military judge admitted the statement as an

admission under Mil.R.Evid. 801(d)(2).

                         The Trial on the Merits

      On August 15, 1997, TR was invited to spend the night at

appellant’s quarters.      TR testified that appellant extended the

invitation.    Appellant’s wife was away on a shopping trip in

Poland.

      The quarters were sparsely furnished because most of the
family’s household goods had been packed for shipment to the

United States.     The only furniture was a bed, two mattresses on

the floor, and a television set.


1
  All Manual provisions cited are identical to the ones in effect
at the time of appellant’s court-martial unless otherwise
indicated.
2
  The residual hearsay rules formerly in Mil.R.Evid. 803(24) and
804(b)(5) are now merged in Mil.R.Evid. 807 as a result of the
passage of 18 months from the date the Federal Rules of Evidence
were similarly amended. See Mil.R.Evid. 1102.



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United States v. Walker, No. 01-0762/AR


      TR testified that, during the evening, appellant, Tamara,

and TR sat on a mattress and watched videotapes of “scary”

movies.    Appellant’s two younger daughters were asleep

on the other mattress in the same room.           The only light in the

room was from the television set.           TR testified that appellant

drank about two cans of beer while they watched the movies.           As

the evening progressed, Tamara fell asleep on the mattress.           TR

testified that appellant told Tamara to get in the bed.           Tamara

moved to the bed and again fell asleep.

      TR testified that appellant asked her to massage his

shoulders, and she complied.        After she rubbed appellant’s

shoulders for “5 minutes or less,” appellant told her that she

“wasn’t doing it right,” and they switched roles.           TR testified

that appellant removed her shirt and bra, touched her breasts,

kissed her on her stomach and face, removed her shorts and

underwear, removed his shorts, began “touching” himself, and

positioned himself between her legs.           She told appellant to stop

four or five times, but he did not respond until Tamara awakened

and called out “Dad” in a soft, sleepy voice.           Appellant then

rolled over, put on his shorts, and went into the back room to

talk to Tamara.

      TR testified she put her clothes back on and went to sleep

on one mattress and that appellant and Tamara spent the night on

the bed.    The next morning, TR, Tamara, appellant, and the two

younger children went swimming.           TR went to her nearby home to

get her swimsuit and money, and then she returned to appellant’s

quarters.    After they returned from swimming, TR went home.




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United States v. Walker, No. 01-0762/AR


      TR testified that appellant twice told her not to tell

anyone what happened, once that evening and again about a week

later.    TR did not report the incident until approximately two

months later, when her mother asked her what happened during the

sleepover.    She explained that she did not report the incident

because she was embarrassed, she “didn’t want them to be mad at

[her],” and she “didn’t want them to think that it was [her]

fault and stuff.”     On cross-examination by defense counsel, TR

admitted that she did not mention the massage to the social

worker or CID because she thought they would think it was her

fault if she mentioned it.

      A clinical social worker testified as an expert witness for

the prosecution, explaining that victims of child sexual abuse

tend to be embarrassed and afraid of being blamed.       As a result,

they tend to delay reporting and to withhold details until they

are comfortable giving more information.       The social worker

opined that TR’s “presentation is very consistent with child

sexual abuse,” and that TR “is compliant and somewhat passive.”

      SA Reasoner testified about the statement at issue in this

case.    When he interviewed appellant’s wife, she told him that

when she returned from her shopping trip on August 17, two days

after the alleged incident, “she had been told of an incident

that occurred.”     In a sworn, written statement, she said that

appellant “did tell [her] what happened,” but she did not “wish

to disclose what he said.”       SA Reasoner’s testimony and the

written statement were admitted over defense objection.

      The defense theory was that nothing indecent or sexual

happened, but “an innocent act . . . was blown out of proportion


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United States v. Walker, No. 01-0762/AR


by some well meaning, well intentioned, but overzealous

individuals and agencies.”       The defense asserted TR had been

influenced by her mother, social workers, and CID to embellish an

innocent incident.      During a lengthy cross-examination, defense

counsel elicited testimony from TR that she underwent persistent

questioning, was interviewed “for a real long time,” and was

asked questions “over and over again.”

       During the defense case-in-chief, appellant testified that

he, Tamara, and TR were sitting on the same mattress, and that he

fell asleep while watching a movie.        He did not directly dispute

the testimony that he told Tamara to get into the bed, stating

only that he did not know how Tamara got from the mattress to the

bed.    He was awakened by Tamara calling out “Dad.”      He testified

that he was startled when he discovered that he was lying beside

TR with his arm around her.       He testified that both he and TR

were fully clothed.      He denied giving TR a massage or touching

her sexually.

       Tamara testified for the defense.      Contrary to TR’s

testimony, she testified that she, not appellant, invited TR to

spend the night.     She testified that when she fell asleep on the

mattress, appellant told her to get in the bed.        She complied and

promptly fell asleep again.       When she awakened and saw her

stepfather’s arm around TR, she yelled, “Dad, get up,” and she

asked, “What are you doing?”        Appellant replied, “Nothing.”

According to Tamara, appellant “wasn’t shocked, he was like

sleepy.”    He then rolled off the mattress and went back to sleep.

This testimony contradicted TR, who indicated that appellant was




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United States v. Walker, No. 01-0762/AR


wide awake, and who testified that Tamara said only, “Dad,” and

spoke in a soft, sleepy voice.

      Tamara also testified that when she awakened, appellant was

wearing a red shirt and red shorts, and TR was wearing cutoff

blue jeans and a white shirt.        This testimony contradicted TR’s

testimony that appellant removed her shirt and shorts and took

off his own shorts.

      Tamara testified that she was “sort of” worried that

“something bad had happened,” and that she was worried appellant

had “touched her.”      She testified that she told her mother what

she saw, and her mother replied, “[T]hat’s what your dad had

said.”

      The defense also presented evidence of good military

character.    Colonel Tyrone Graham testified that appellant was an

“outstanding soldier.”      He ranked appellant among the top three

noncommissioned officers with whom he had worked.       He testified

that he respected appellant’s integrity, explaining that

appellant addressed “some very -- very contentious issues in

supply accountability” and handled them “in an honest and

forthright manner.”

      In a stipulation of expected testimony, Lieutenant Colonel

(LTC) John Polson testified that appellant worked for him for

four years, and that he would rate appellant “in the top 1% of

supply sergeants.”      In another stipulation of expected testimony,

LTC Nathan Keith testified that appellant “is the best supply

sergeant I have seen in the United States Army.”

      During argument on findings, the defense argued that TR was

embarrassed because appellant had his arm around her, but that


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United States v. Walker, No. 01-0762/AR


the incident was “blown out of proportion” when TR’s parents, the

Military Police, CID, and other investigators kept asking her

what happened.     The defense argued that as TR was repeatedly

questioned, “[t]he story is getting bigger and bigger.”      The

defense portrayed TR as “a passive, eager to please, child,” who

“has been pulled into the system and is giving the answers she

knows that they want.”

      Defense counsel then referred to Mrs. Walker’s statement to

SA Reasoner, which was not mentioned by trial counsel in her

argument.    Defense counsel argued:

            In this statement, Mrs. Walker had a conversation with
            her husband, but she did not divulge what was in that
            conversation. The statement is not a statement. The
            government admitted that statement to slander the
            Walker family. The government wants you to infer that
            there is a conspiracy contained in that statement. Give
            the statement what it is worth: zero.


      During trial counsel’s rebuttal argument, the following

exchange took place:

            TC: Captain Swanson brought up the CID statement that
            --the statement that Theresa Walker made to the CID
            agent. She didn’t want to disclose what her husband
            had told her. Why not if it was so innocent?
            Cynthia’s friend--Cynthia being the victim’s mother --
            had a conversation with one of her -- one of Cynthia’s
            friends, and -- which led her to confront ----

            MJ: Captain Gillespie [defense counsel] ---

            DC: Is this going where I think it’s going?

            MJ: I don’t know, is that an objection I hear?

            DC: It is if it’s going where I think it’s going, Your
            Honor.

            MJ: I ---

            TC: Well, I don’t know where Captain Swanson thinks
            it’s going, but ---



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United States v. Walker, No. 01-0762/AR


            MJ: Well -- but ---

            TC: Well, I’ll move away, and in the event that she
            thinks ---

            MJ: Well, yeah.

(Emphasis added.)

      After this exchange in the presence of the members, there

was no further mention of Mrs. Walker’s statement, no ruling on

the propriety of the trial counsel’s argument, and no

instructions to the members about the inference, if any, that

they were permitted to draw from Mrs. Walker’s refusal to divulge

what appellant had told her.

      The Court of Criminal Appeals held that the military judge

abused her discretion by admitting SA Reasoner’s testimony

regarding Mrs. Walker’s statements and by permitting the

Government’s attempt to draw an adverse inference from Mrs.

Walker’s invocation of her spousal privilege.       However, the court

below held that the error was harmless because it “had no

substantial influence on the findings.”       54 MJ at 572.

                                 Discussion
      The Government has not challenged the lower court’s holding

that the military judge abused her discretion, either by

certification or in its brief and oral argument.       See United




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United States v. Walker, No. 01-0762/AR


States v. Grooters, 39 MJ 269 (CMA 1994).         Thus, the only issue

we will address is whether the error was harmless.3

      We review de novo the question whether an error was

harmless.    See United States v. Grijalva, 55 MJ 223, 228 (2001)

(review of constitutional error); United States v. Pablo, 53 MJ

356, 359 (2000) (review of nonconstitutional error).         The test

for constitutional error is whether the error was harmless beyond

a reasonable doubt.      Chapman v. California, 386 U.S. 18, 24

(1967).   The test for nonconstitutional error is “whether the

error itself had substantial influence” on the findings.

Kotteakos v. United States, 328 U.S. 750, 765 (1946).         “If so, or
if one is left in grave doubt, the conviction cannot stand.”         Id.

      The parties have briefed and argued the issue as a non-

constitutional evidentiary error.          We need not decide whether the

parties have correctly characterized the error as non-

constitutional, because the Government has failed to carry its

burden of showing harmlessness under either test.

      This case pitted the credibility of appellant against TR.

Although Tamara contradicted appellant’s version of the events in
some respects and corroborated TR’s version in some respects,

3
  In United States v. Williams, 41 MJ 134, 135 n.2 (CMA 1994),
citing Christianson v. Colt Industries Operating Corp., 486 U.S.
800, 817 (1988), this Court recognized that the law-of-the-case
doctrine does not preclude this Court from examining the legal
ruling of a subordinate court in a case where the Judge Advocate
General has not certified the issue. However, we have made it
clear that we are reluctant to exercise this power and, as a
rule, reserve it for those cases where the lower court’s decision
is “clearly erroneous and would work a manifest injustice” if the
parties were bound by it. Christianson, supra. In this case,
the Government has not asserted that the lower court’s ruling
that error occurred was “clearly erroneous and would work a
manifest injustice” if adopted for purposes of this case.
Accordingly, we will apply the law-of-the-case doctrine.


                                      10
United States v. Walker, No. 01-0762/AR


Tamara’s testimony also contradicted TR on several key points and

provided significant support for several critical aspects of

appellant’s testimony.      Specifically, Tamara testified that she

invited TR to spend the night, contradicting TR’s testimony that

appellant invited her and undermining the Government’s

implication that appellant had designs on TR.         Tamara testified

that when she awakened and saw appellant on the mattress with TR,

he apparently was asleep, and both he and TR were fully clothed.

This testimony directly contradicted TR’s testimony that both

appellant and TR were awake and wholly or partially disrobed on

the mattress when Tamara awakened, and it supported appellant’s

testimony that he was asleep and that he was fully clothed.

Tamara’s testimony that she shouted at appellant contradicted

TR’s testimony that appellant stopped touching her when Tamara

said “Dad” in a soft, sleepy voice.

      The heart of the defense was to portray TR as a passive,

compliant child, who had embellished an inadvertent, innocent act

in response to the intense, repeated, and suggestive questioning

of a host of well-meaning adults.          The admission of the hearsay

statement of Mrs. Walker seriously undermined that defense,

because it was used by the Government to show that, two days

after the incident, long before anyone began questioning TR and

long before she was subjected to the influences of well-meaning

adults, appellant made a damaging admission to his wife.         Even

after trial counsel urged the members to make this inference, the

military judge did nothing to prevent it.         Under these

circumstances, we are “left in grave doubt” whether the

inadmissible statement unduly weighted the scales of justice


                                      11
United States v. Walker, No. 01-0762/AR


against appellant and substantially influenced the findings.

Kotteakos, 328 U.S. at 765.       The Government has not met its

burden of persuading us otherwise.         Accordingly, we must reverse.

                                  Decision

      The decision of the United States Army Court of Criminal

Appeals is reversed.      The findings and sentence are set aside.

The record of trial is returned to the Judge Advocate General of

the Army.    A rehearing is authorized.




                                      12
United States v. Walker, No. 01-0762/AR


    SULLIVAN, Senior Judge, with whom CRAWFORD, Chief

Judge, joins (dissenting):


                       Harmless Error

    I would affirm this case on the basis of harmless error, as

did the Court of Criminal Appeals.      See Article 59(a), Uniform

Code of Military Justice (UCMJ), 10 USC § 859(a).      I recognize

that this child sexual abuse case was a swearing contest between

appellant and TR, the alleged victim who was the eleven-year-old

neighborhood girlfriend of appellant’s stepdaughter.      However,

appellant himself admitted that he was discovered sleeping on a

mattress late at night with this young girl, whom he hardly knew,

with his arm around her chest. (R.248, 399, 430, 406)      Moreover,

the erroneously admitted evidence (that appellant made statements

to his wife about this incident and his wife refused to disclose

their contents) did not materially prejudice appellant in the

context of other evidence in this case.



    As a starting point, I note the issue particularly granted

review in this case.    It asks “WHETHER THE ARMY COURT OF CRIMINAL

APPEALS ERRED WHEN IT HELD THAT THE ADMISSION OF THE STATEMENT OF

APPELLANT’S WIFE WAS HARMLESS ERROR.”      In my view, this granted

issue raises two questions.    First, did the appellate court below

err in finding error in the admission of appellant’s wife’s

statement?   Second, assuming error, did the appellate court err

in finding such error was harmless?      Our case law supports my
United States v. Walker, No. 01-0762/AR

construction of the granted issue.         See United States v.

Williams, 41 MJ 134, 135 (CMA 1994).*



         In light of our decision in Williams, therefore, the

first question in this harmless error case is whether the Court

of Criminal Appeals was correct in holding that the trial judge

erred in admitting the challenged evidence noted above.              The

Court of Criminal Appeals specifically held that the admission of

this evidence, objected to by the defense on grounds of spousal

privilege (R.97), was error under Mil. R. Evid. 512(a), Manual

for Courts-Martial, United States (1998 ed.).           This rule states:

            Rule 512. Comment upon or inference from
            claim of privilege; instruction

            (a)   Comment or inference not permitted.

                        *           *      *

              (2) The claim of a privilege by a person
            other than the accused whether in the present
            proceeding or upon a prior occasion normally
            is not a proper subject of comment by the
            military judge or counsel for any party. An
            adverse inference may not be drawn therefrom
            except when determined by the military judge
            to be required by the interests of justice.
*
  Admittedly, the Supreme Court in Rose v. Clark, 478 U.S. 570,
576 & n.5 (1985), construed its “limited” grant of review on
“harmless-error analysis” more narrowly and declined to look at
the underlying legal error. However, it did so on the basis of
Rule 14.1 of its own practice and procedure rules, which is not
mirrored in our Court’s rules. (“Only the questions set out in
the petition, or fairly included therein, will be considered by
the Court.”) Moreover, the Supreme Court has also recognized that
decisions of this type are discretionary in nature, depending on
the wording of the particular issue granted and the manner in
which it was granted. See Robert L. Stern et al., Supreme Court
Practice, 190-95, 419-27, 635-36 (8th ed. 2002); see also Sup.Ct.
Rule 24.1(a) (”At its option, however, the Court may consider a
plain error not among the questions presented but evident from the
record and otherwise within its jurisdiction to decide.”).



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United States v. Walker, No. 01-0762/AR




(Emphasis added.)     I conclude that the Court of Criminal Appeals

was correct in holding that error occurred under this rule

because the military judge made no interest-of-justice

determination.



    I next turn to the question whether the appellate court below

correctly held that the trial judge’s error in admitting this

evidence did not materially prejudice appellant’s substantial

rights.    See Article 59(a), UCMJ; Mil.R.Evid. 103(a), Manual,

supra. I think that appellant was not so prejudiced for several

reasons.



    First, the evidenced statements of appellant’s wife

concerning her husband’s words to her about this incident were

neutral and repeated no express admissions by appellant to the

charged offenses.    Any negative inference which could be drawn

against appellant from this evidence was based on his wife’s

additional statement that she chose not to disclose his

statements.    The majority has not explained why the members would

resolve this serious case on such a speculative basis.



    Second, additional evidence was admitted in this case showing

that appellant’s wife did otherwise disclose the contents of

these statements and what the content of appellant’s statements



                             3
United States v. Walker, No. 01-0762/AR

was.   Appellant’s stepdaughter, Tamara, testified that she woke

up; saw her father laying very close to TR with his arm around

her chest; asked him what he was doing; and he said “nothing” and

rolled off the couch.   (R.440-41)   Tamara also testified that she

told this to her mother, who said her dad said the same thing.

(R.442)   This testimony neutralized any adverse innuendo or

speculation from the challenged evidence that appellant had

admitted the charged offenses to his wife.



    Third, as pointed out by the Court of Criminal Appeals, the

alleged victim, TR, provided specific and detailed testimony as

to what happened between her and appellant before Tamara woke up.

In my view, this powerful evidence was the basis for appellant’s

conviction, not the evidenced out-of-court statements of his

wife, which might be construed as an assertion by her that

appellant admitted the charged offenses.



    Fourth, defense counsel did not request a protective

instruction under Mil.R.Evid. 512(c).   It states:

           (c) Instruction. Upon request, any party
           against whom the members might draw an
           adverse inference from a claim of privilege
           is entitled to an instruction that no
           inference may be drawn therefrom except as
           provided in subdivision (a)(2).




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United States v. Walker, No. 01-0762/AR

    Accordingly, in these circumstances, I conclude that the

military judge’s error in admitting the challenged evidence was

clearly harmless beyond a reasonable doubt.



                          Law of the Case

    As an addendum to my opinion in this case, I wish to again

note my disagreement with the majority’s apparent reliance on the

doctrine of law of the case to preclude issues of law from our

appellate jurisdiction.   See generally Article 67(c), UCMJ, 10

USC § 867(c).   It has created a new rule undermining our power to

recognize plain error on our own motion.    Contra Rules 5 and

21(d), Rules of Practice and Procedure, United States Court of

Appeals for the Armed Forces.



    The law-of-the-case doctrine is based on the failure of

counsel to challenge a particular ruling by a trial judge on

appeal, and a subsequent judicial decision by an appellate court

on other issues.   See United States v. Castillo, 179 F.3d 321,

326 (5th Cir. 1999).   The unappealed ruling of the trial court

becomes the law of the case on remand and on further appeals

which may later occur in that appellate court.    See Morris v.

American National Can Corp., 988 F.2d 50, 52 (8th Cir. 1993).

Although this Court has used law-of-the-case language in

addressing the permissible scope of our initial appellate review,

I believe it is technically incorrect.    See United States v.

Hall, 56 MJ 432, 437 (2002) (Sullivan, S.J., concurring in part


                            5
United States v. Walker, No. 01-0762/AR

and in the result); Crocker v. Piedmont Aviation, Inc., 49 F.3d

735, 739 (D.C. Cir. 1995);    see generally 18B Charles Alan Wright

et al., Federal Practice and Procedure § 4478 (2002).



    To the extent the majority holds that the failure of

appellate government counsel to contest the lower court’s legal-

error holding in his brief before this Court precludes us from

looking at this issue, I also disagree.    In this regard, I note

that the majority recognizes our plain error approach to

appellate review as delineated in United States v. Williams, 41

MJ at 135, a case decided after United States v. Grooters, 39 MJ

269 (CMA 1994).   Nonetheless, it asserts that our review of the

underlying error is not permitted where “the Government has not

asserted that the lower court’s ruling that error occurred was

‘clearly erroneous and would work a manifest injustice’ if

adopted for purposes of this case.” __ MJ at (10 n.3).



    The scope of an appellate court’s review is an important

question and one usually imparted to the discretion of the court,

not the whims of counsel.    Statutes, rules of court, and

decisional law impart this discretion.    See generally Izumi

Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510 U.S.

27 (1993).   I would rely on the UCMJ and our published rules and

hold that the underlying question of legal error can be

considered in a harmless error case on our own motion.

    Article 67(c), UCMJ, states:


                             6
United States v. Walker, No. 01-0762/AR

          (c) In any case reviewed by it, the Court of
          Appeals for the Armed Forces may act only
          with respect to the findings and sentence as
          approved by the convening authority and as
          affirmed or set aside as incorrect in law by
          the Court of Criminal Appeals. In a case
          which the Judge Advocate General orders sent
          to the Court of Appeals for the Armed Forces,
          that action need be taken only with respect
          to the issues raised by him. In a case
          reviewed upon petition of the accused, that
          action need be taken only with respect to
          issues specified in the grant of review. The
          Court of Appeals for the Armed Forces shall
          take action only with respect to matters of
          law.

(Emphasis added.)



    We have further promulgated a rule for our Court concerning

the scope of our review, which states:

          Rule 5. Scope of Review

            The Court acts only with respect to the
          findings and sentence as approved by
          reviewing authorities, and as affirmed or set
          aside as incorrect in law by a Court of
          Criminal Appeals, except insofar as it may
          take action on a certificate for review or a
          petition for review of a decision by a Court
          of Criminal Appeals on appeal by the United
          States under Article 62, UCMJ, 10 USC § 862
          (1983), or to grant extraordinary relief in
          aid of its jurisdiction, including the
          exercise of its supervisory powers over the
          administration of the UCMJ. The Court may
          specify or act on any issue concerning a
          matter of law which materially affects the
          rights of the parties.


(Emphasis added.)   In my view, these legal authorities give this

Court discretion to examine the underlying legal error, even if




                            7
United States v. Walker, No. 01-0762/AR

counsel does not make a plain error argument in his brief before

this Court.

    Finally, with respect to our decisional law, this Court in

United States v. Johnson, 42 MJ 443, 446 (1995), clearly said:

“It is solely within this Court’s discretion under Article 67 to

determine whether an issue is properly raised.”    See also Silber

v. United States, 370 U.S. 717 (1962); DeRoo v. U.S. 223 R. 3d

919, 926 (8th Cir. 2000).   In Johnson, we held that our review of

a legal issue for good cause was not precluded by the appellant’s

failure to raise that issue before a Court of Criminal Appeals.

Similarly, the failure of counsel to challenge the holding of the

appellate court below in our Court should not defeat this Court’s

jurisdiction.    We have always had the discretionary power to

review plain error questions on our own motion.    See Eugene R.

Fidell, Guide to the Rules of Practice and Procedure for the

United States Court of Appeals for the Armed Forces, 34-35 (9th

ed. 2000); Homer E. Moyer, Jr., Justice and the Military § 2-795

at 636 (1972).




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