                          UNITED STATES, Appellee

                                        v.

                 Stanley BARNER, Sergeant First Class
                         U.S. Army, Appellant


                                  No. 00-0431

                          Crim. App. No. 9701385

________________________________________________________________

       United States Court of Appeals for the Armed Forces

                       Argued December 5, 2000

                       Decided November 16, 2001

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

                                    Counsel

For Appellant: Captain Stephanie L. Haines (argued); Colonel
Adele H. Odegard, Lieutenant Colonel David A. Mayfield, and
Major Mary E. McCord (on brief); Major Jonathan F. Potter and
Major Kirsten V.C. Brunson.

For Appellee: Captain Paul T. Cygnarowicz (argued); Lieutenant
Colonel Edith M. Rob and Major Anthony P. Nicastro (on brief).




Military Judge:     Gary W. Smith


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States vs. Barner, No. 00-0431


        Judge BAKER delivered the opinion of the Court.

        A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of violating

a lawful general regulation (seven specifications), assault

consummated by a battery, adultery, indecent assault (four

specifications), and obstruction of justice (two

specifications), in violation of Articles 92, 128, and 134,

Uniform Code of Military Justice, 10 USC §§ 892, 928, and 934,

respectively.       He was sentenced to a dishonorable discharge,

confinement for 4 years, total forfeitures, and reduction to

grade E-1.      The convening authority approved the sentence as

adjudged, and the court below affirmed in a short-form, per

curiam decision.

        We granted review on the following issues, which relate
                                                       1
only to the obstruction of justice offenses:




1
    The two specifications stated that appellant

        . . . did, at Fort Jackson, South Carolina, on or about 12 April
        1996, wrongfully endeavor to alter the testimony of Private
        Qulandus S. Green as a victim by making comments designed to
        influence and deter the reporting of a crime; and

        . . . did, at Fort Jackson, South Carolina, on or about 12 April
        1996, wrongfully endeavor to alter the testimony of Private
        Luciana M. Mitchell as a witness by making comments designed to
        influence and deter the reporting of a crime.

                                        2
United States vs. Barner, No. 00-0431


                                      I

      WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT
      A FINDING OF GUILTY OF SPECIFICATIONS 4 AND 5 OF ADDITIONAL
      CHARGE V (OBSTRUCTION OF JUSTICE).


                                     II

      WHETHER SPECIFICATIONS 4 AND 5 OF ADDITIONAL CHARGE
      V MUST BE CONSOLIDATED AS ONE SPECIFICATION BECAUSE
      APPELLANT’S ALLEGED ACTS CONSTITUTED ONE VIOLATION OF A
      SINGLE PROVISION OF MILITARY LAW PROHIBITING OBSTRUCTION OF
      JUSTICE; CONSOLIDATION IS CONSISTENT WITH THIS COURT’S
      OPINION IN UNITED STATES V. GUERRERO, 28 MJ 223, (CMA
      1989).

      For the reasons set forth, we resolve both issues adversely

to appellant and affirm.

                            FACTUAL BACKGROUND


      Appellant was the senior drill sergeant in the 2nd platoon

of Alpha Company (A CO), 1st Battalion, 61st Infantry Regiment

(1/61) at Fort Jackson, South Carolina.           Over the span of three

training cycles from July 1995 until April 1996, appellant

engaged in a variety of unlawful and inappropriate contact with
                                              2
female trainees under his supervision.            As a drill instructor,

he was precluded by regulations from having personal

relationships with the trainees.          His misconduct went unreported

until a trainee came forward and reported him to authorities.




2
  Appellant’s conduct included consensual sexual intercourse with several of
the trainees and assaults against others by touching them inappropriately.

                                      3
United States vs. Barner, No. 00-0431


       Private (PVT) Qulandus Green was a trainee in the 1st

platoon of appellant’s company in March 1996.    On the evening of

April 11, 1996, after PVT Green concluded her Charge of Quarters

(CQ) duties, appellant followed her into the female sleeping

bay.    He intentionally rubbed his hand across PVT Green’s hair

and breast.    Upset, PVT Green rushed to the latrine, where she

told PVT Luciana Mitchell of appellant’s actions.    PVT Green

also reported the incident to her mother that evening during a

telephone call.    The next day, PVT Green and PVT Mitchell

reported the incident to their drill instructor, Sergeant First

Class (SFC) Randy Bell.

       SFC Bell testified that while he was discussing the

incident with the two Privates, appellant arrived, at which

point Bell excused the Privates and sent them to the CQ lounge.

He then informed appellant of the allegation made against him by

Green and Mitchell.    Upon hearing this, appellant asked Bell if

he could speak with the two Privates, and Bell reluctantly

allowed him to do so.

       Green testified that when appellant met with her and

Mitchell in the lounge, he apologized and implored her “not to

tell.”    He also suggested that by pursuing her report, she

would, in his words, be helping the “white man” who was “trying

to destroy him.”    Bell’s testimony, which is consistent with

Green’s, is that when he joined the meeting in the lounge, he

                                  4
United States vs. Barner, No. 00-0431


heard enough of the conversation to conclude that appellant “was

trying to change the story.”   As for appellant’s references to

race, Bell characterized appellant’s statements to Green as “us

as blacks, had to stick together,” because “the white [drill

instructor] cadre were against the black cadre.”   Shortly after

hearing this, Bell terminated the meeting between appellant and

the two Privates and reported Green’s allegation to the first

sergeant of A CO.

     Green also testified that about “two to three days later,”

appellant approached her in the breezeway and continued his

efforts to dissuade her from pursuing her allegation.   PVT

Mitchell was apparently not present during this encounter.    On

this occasion, Green stated that, among other things, appellant

told her, “I’ll do anything, if you don’t tell.”

     Mitchell testified to yet another encounter some time after

the meeting in the CQ lounge wherein she and Green were called

to appellant’s office while they were on kitchen police duty.

In a further attempt to dissuade Green, appellant again raised

the specter of race by stating that “they wanted him out”

because “they didn’t want any blacks here.”   According to

Mitchell, appellant then directed his attention to her and asked

if she would be willing to “write a statement against Green,”

and indicated he could get other soldiers to say that Green was

a liar.

                                 5
United States vs. Barner, No. 00-0431


        Appellant’s efforts were obviously unsuccessful and

resulted in the two obstruction offenses of which he stands

convicted.

                                     ISSUE I

        Appellant claims that the evidence is insufficient as a

matter of law.       The nature of such a claim requires us to

examine the record to determine “whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.”            Jackson v. Virginia,

443 U.S. 307, 319 (1979); United States v. Turner, 25 MJ 324

(CMA 1987).      Further, in resolving questions of legal

sufficiency, we are bound to draw every reasonable inference

from the evidence of record in favor of the prosecution.             United

States v. Rogers, 54 MJ 244, 246 (2000); United States v.

Blocker, 32 MJ 281, 284 (CMA 1991).

        Paragraph 96b, Part IV, Manual for Courts-Martial, United

States (1995 ed.),3 lists the elements of obstructing justice

under Article 134 as follows:

        (1)   That the accused wrongfully did a certain act;

        (2)   That the accused did so in the case of a certain
              person against whom the accused had reason to believe
              there were or would be criminal proceedings pending;



3
    This Manual provision is identical to the one in effect today.

                                        6
United States vs. Barner, No. 00-0431


     (3) That the act was done with the intent to influence,
         impede, or otherwise obstruct the due administration of
         justice; and

     (4) That, under the circumstances, the conduct of the
         accused was to the prejudice of good order and
         discipline in the armed forces or was of a nature to
         bring discredit upon the armed forces.

Appellant’s claim is that the evidence is insufficient as to all

of the elements of both offenses.

     Appellant relies on United States v. Asfeld, 30 MJ 917

(ACMR 1990), and to a lesser extent, United States v. Gray, 28

MJ 858 (ACMR 1989), to support his contention that his

statements were not wrongful because they were no more than an

attempt to conceal his misconduct by limiting other people’s

knowledge of his illicit activities, and he did not request an

affirmative act by the Privates, which would amount to an

interference with or obstruction of the due administration of

justice.   He further argues that his conduct could only have

been intended to forestall or preclude discovery of his offense,

and since no official authority had taken an official act or

initiated an inquiry, investigation, or other criminal

proceeding against appellant, he could not have attempted to

interfere, impede, or obstruct the due administration of

justice.

     In Asfeld, the appellant stood convicted of calling the

prosecutrix and uttering indecencies over the telephone.    During


                                 7
United States vs. Barner, No. 00-0431


the conversation in which the indecent language was

communicated, the prosecutrix apparently recognized appellant’s

voice and threatened to report him.    Appellant immediately said,

“Don’t report me.”   This statement formed the basis for the

appellant’s conviction of obstruction of justice.    The Army

Court found that the prosecutrix had no duty to report and

obviously had not reported the offense, since the alleged

obstruction had occurred contemporaneously with the

communication of the indecent language.    It also found that the

appellant had promised no unlawful inducement.    The court then

made two significant holdings.    First, it held that the

appellant’s statement, “Don’t report me,” did “not request an

affirmative act by the prosecutrix which would amount to an

interference with or obstruction of the due administration of

justice” and, thus, was not wrongful.    30 MJ at 928.   Secondly,

it held that the “appellant’s . . . conduct was intended only to

forestall or preclude discovery of his offense, an intent which

does not amount to an attempt to interfere, impede, or obstruct

the ‘due administration’ of justice.”    Id.

     In Gray, the appellant pled guilty to obstructing justice

by advising one paramour “that she was not to discuss the

couple’s sexual relationship with anyone or they would both get

into trouble.”   28 MJ at 860.   In setting aside the finding of

guilty, that court held the statement was “no more than an

                                  8
United States vs. Barner, No. 00-0431


attempt to conceal his misconduct by limiting other people’s

knowledge of his illicit activities.”    Id. at 861.   We need not

address the correctness of the Army Court’s holdings in these

cases because we hold that appellant’s case is readily

distinguishable from them.

     On the issue of wrongfulness, both Green and Mitchell

testified that just prior to their first meeting with appellant

in the lounge, they had reported the assault against Green to

SFC Bell.    Furthermore, Bell’s testimony was that immediately

following the trainees’ report of the allegation to him, he

informed appellant of the Privates’ accusations.

Notwithstanding this, appellant proceeded to meet with the

trainees to dissuade Green from pursuing her complaint.    The

testimony of the three witnesses does not indicate that

appellant denied the allegation, nor does it indicate he sought

to prevent Green from pursuing a false report against him.

Instead, appellant offered his apologies and then sought to

dissuade her from pursuing the complaint.

     One could reasonably conclude from the testimony that

appellant realized he had committed an offense against Green,

knew she had already reported it to someone of authority, and

wanted to prevent her from further reporting what she had just

told Bell.    Acceding to appellant’s request would at the very

least have required her to disclaim or recant her report to

                                  9
United States vs. Barner, No. 00-0431


Bell.   Thus, contrary to appellant’s claim before this Court,

the record contains evidence that rather than merely imploring

Green not to tell, appellant’s efforts were designed to have

Green assert that her previous complaint to Bell was false.    Of

course, appellant knew this not to be the case.

     Appellant’s suggestion to Green that she should forgo

reporting his criminal assault upon her for reasons related to

race is also probative on the element of wrongfulness, as well

as the element of conduct prejudicial to good order and

discipline.   Green’s testimony concerning appellant’s statements

to her was as follows:

          He was begging me not to – you know, not to tell,
     because he was telling me, the white man don’t want to
     see him get nowhere [sic], they want to see him go
     down; a black man had never came here and did – got as
     much rank as he got, they’re trying to destroy him,
     “Don’t do this to me.” You know, he was trying to
     make it like something racial.


Based on this testimony, military court members could have

concluded that an attempt on the part of a senior drill

instructor to get the trainees to change their story through

such an appeal was not only wrongful, but in the context of a

basic training environment, prejudicial to good order and




                                10
United States vs. Barner, No. 00-0431


discipline.

      Appellant’s claim that his conduct was not wrongful because

he did not threaten or bribe the trainees is equally untenable.

Appellant’s statement to Green in the breezeway that “I’ll do

anything if you don’t tell,” suggests that appellant was willing

to use his position as a senior drill instructor to see that

Green received preferential treatment.          Implicit in this

statement by a drill instructor is the converse—that refusal to

accede to his desire might invite more severe treatment than

others might receive.      Neither scenario was consistent with the

duties of a senior drill instructor, and members could have so

found.

      With regard to Mitchell, appellant’s request to her during

the meeting in his office to “write a statement against Green”

was made with the knowledge that Mitchell had accompanied Green

during her initial report to Bell, and that she presumably

supported Green’s complaint.4       His further suggestion to her that

he could get “other statements from soldiers saying that Green

was a liar” suggests that he wanted Mitchell to paint Green as a

liar, and that he could assist her in so doing.            However, as

previously noted, appellant knew Green’s allegation was true.

      As indicated in the elements set out in paragraph 96b, the



4
  In fact, at this point, Mitchell had apparently already written a statement
supporting Green’s allegation.

                                     11
United States vs. Barner, No. 00-0431


Manual requires a wrongful act, that is, one done without legal

justification or with some sinister purpose.   See United States

v. Jensen, 25 MJ 284, 288 (CMA 1987).   Appellant has advanced no

theory that would legally justify his statements to the trainees

under the circumstances divined from the record.    To the

contrary, this record contains clear evidence that appellant’s

actions sufficiently qualify as wrongful conduct.

     Similarly, there is sufficient evidence of record to permit

a rational factfinder to conclude beyond a reasonable doubt that

appellant believed Green’s report to Bell would result in

criminal investigation or proceedings, and that his actions

evinced an intent to influence, impede, or otherwise obstruct

the due administration of justice.   After his conversation with

SFC Bell, it would have been clear to appellant that Green and

Mitchell were pursuing a complaint against him.    Bell testified

that he told appellant the trainees had “accused [him] of

something very serious and that they want[ed] to file a report.”

We have held that obstructing justice can occur where the

appellant “believed that some law enforcement official of the

military . . . would be investigating his actions.”    United

States v. Finsel, 36 MJ 441, 444 (CMA 1992).

     Appellant, more than anyone, knew the criminal nature of

his offense against Green.   Unlike the situation encountered in

Asfeld, appellant’s offense had already been reported.    From the

                                12
United States vs. Barner, No. 00-0431


perspective of the trainees, by reporting the offense to SFC

Bell, they had begun the process of vindicating the interests of

the victim, PVT Green.   SFC Bell had taken action expressing

official interest by confirming the serious nature of the

allegation.   He had also indicated to the two trainees that they

could expect to be required to execute sworn statements that, in

his words, could “be used in a court of law.”

     While SFC Bell’s testimony does not expressly state what

duty to report such an offense he may have had, it does relate

the considerable instruction he and other drill instructors

received regarding personal relationships with trainees.    He

understood that “[a]ny relationship that’s not professional is

considered improper association.”    Moreover, he described his

military specialty as “legal specialist.”    This suggests that he

might have been more aware than most that a criminal offense was

being reported to him.   Furthermore, Prosecution Exhibit (PE) 2

is a Fort Jackson regulation entitled “PROHIBITED PRACTICES AND

ILLEGAL AND UNPROFESSIONAL ASSOCIATIONS,” and pertains to

conduct between drill instructors and “soldiers-in-training.”

The regulation expressly indicates that it is punitive in nature

and specifically proscribes “[t]ouching of a sexual nature, . .

.caressing, . . .[and] sexual fondling” of soldiers-in-training.

PE 2 at 6.



                                13
United States vs. Barner, No. 00-0431


Based on this record, reasonable military court members could

have determined that having received the complaint of a criminal

assault upon one of his trainees, Bell had a duty to pursue the

complaint on her behalf.   Indeed, Bell testified that after

terminating the meeting between appellant and the trainees in

the lounge, he in fact reported the incident to the first

sergeant.   In light of the foregoing, we are satisfied that

there is sufficient evidence of record from which rational

factfinders could conclude guilt beyond reasonable doubt on the

essential elements of both obstruction of justice offenses.

                             ISSUE II

     Appellant contends that the two obstructing justice

specifications stem from a single act of communication made to

the two Privates at the same time and place, i.e., the CQ

lounge.   Relying on United States v. Guerrero, 28 MJ 223 (1989),

he argues that consolidation is required because only one

offense rather than two occurred.

     In Guerrero, after intentionally driving his car into a

crowd of people and injuring several of them, the appellant

drove away from the scene without stopping, rendering

assistance, or making his identity known.   After leaving the

scene, he stopped the car and told the other two occupants in

the car that they should lie to the military police and say that

the car had been stolen.   Appellant was convicted of two

                                14
United States vs. Barner, No. 00-0431


specifications of obstructing justice, one for each occupant of

the car.     The factual findings of the court below demonstrated

that both specifications resulted from a single act of

communication by the appellant at the same time and place to

both potential witnesses.     We reasoned that the overriding

concern of the obstructing justice provision in paragraph 96(b)

of the Manual is the protection of the administration of justice

in the military justice system, and not the protection of

potential witnesses at courts-martial or other military

investigations.    Id. at 227.   Accordingly, we held that under

such circumstances, only one offense had occurred and ordered

consolidation of the two specifications into one.     Id.

     We note that the trial testimony of Green and Mitchell does

not establish with absolute clarity the timing of the two

encounters appellant had with them following the meeting in the

CQ lounge.    Both witnesses testified the meeting in the CQ

lounge occurred on April 12.     Green testified that the meeting

in the “breezeway” occurred less than two to three days later

because “they took [appellant] off - - they took him away from

1/61.”   Mitchell testified that after she and Green met with SFC

Bell, appellant had contact with her “two, maybe three times.”

This would include the meeting she testified to that occurred in

appellant’s office, which also had to have been before appellant

was removed from 1/61.

                                  15
United States vs. Barner, No. 00-0431


     Both specifications of obstructing justice alleged that the

offenses occurred “on or about 12 April 1996.”      When the

Government pleads an offense “on or about,” it is “not required

to prove the exact date, if a date reasonably near is

established."    United States v. Hunt, 37 MJ 344, 347 (CMA 1993).

Here, the members were free to conclude that the offenses

occurred between April 12 and two to three days later, when

“they took [appellant] away from 1/61.”     Moreover, appellant

would be required to show how, if at all, he was prejudiced by

this variance.   We note the record contains a bill of

particulars in which trial defense counsel requests specificity

on a number of the charges.   However, neither of the obstruction

specifications is included in the bill.     Since counsel did not

raise the issue of variance at trial, it is apparent the defense

was not misled by this variance.      Therefore, we hold the record

supports a finding by a rational trier of fact that the offenses

occurred “on or about” April 12, 1996.

     Appellant also failed to move to consolidate the

specifications for findings purposes.     The only colloquy on the

issue of consolidation took place after the members had returned

findings of guilt in the case.   The military judge asked both

sides if they had familiarized themselves with Guerrero.       Then

both counsel agreed on the record with the military judge that



                                 16
United States vs. Barner, No. 00-0431


the two obstructions would be considered as one offense for

sentencing.

     Appellant now asserts that we should consolidate these two

offenses for findings.   However, such claims are forfeited by

failure to make a timely motion to dismiss, unless they rise to

the level of plain error.   United States v. Heryford, 52 MJ 265,

266 (2000).   Appellant has the burden of persuading us that

there was plain error.   United States v. Powell, 49 MJ 460, 464-

65 (1998).    We need not venture far into the analysis since we

conclude that the military judge did not err by failing to

consolidate the two offenses for findings purposes.

     Appellant may show plain error and overcome forfeiture by

showing that the specifications are facially duplicative.    Id.

at 266.   Whether specifications are facially duplicative is

determined by reviewing the language of the specifications and

the “facts apparent on the face of the record.”   Id. (citing

United States v. Lloyd, 46 MJ 19, 24 (1997); United States v.

Harwood, 46 MJ 26, 28-29 (1997)).

   As discussed above, each specification alleged an endeavor

against a different individual “on or about 12 April 1996.”

While appellant attempts to confine the scope of the issue to

only that which occurred in the CQ lounge, the facts apparent on

the face of this record indicate there were at least three

separate and distinct instances where appellant met with one or

                                17
United States vs. Barner, No. 00-0431


both of them and endeavored to dissuade them from pursuing the

complaint.    Significantly, Mitchell testified that during the

meeting in appellant’s office, appellant’s statements to Green

were consistent with his statements earlier in the CQ lounge.

However, her testimony that he asked her to “write a statement

against Green” was qualitatively different from the statements

directed at Green.      Thus, in the context of the meeting in the

office, while appellant’s statements were indeed made at the

same time and place, they were distinctively different

statements designed to thwart the administration of justice in

distinctively different ways.        See United States v. Neblock, 45

MJ 191, 197 (1996).      Consequently, Guerrero is factually

distinct from appellant’s case, and consolidation is not

required.    The appellant, having failed to carry his threshold

burden of establishing error, there is no plain error and we

hold that the two convictions may stand.5

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




5
  Having found no error, we need not address Senior Judge Sullivan’s attempt
to revisit Powell.

                                     18
United States v. Barner, 00-0431/AR



    SULLIVAN, Senior Judge (concurring):

    I concur with the majority opinion on its overall legal

analysis and write only to disassociate myself from its citation

to United States v. Powell, 49 MJ 460 (1998).   In Powell, the

plain error rule is defined as follows:



          Under a plain error analysis, appellant
          had the burden of persuading the court
          below that there was plain error. Only
          after appellant met his burden of
          persuasion did the burden shift to the
          Government to show that the error was not
          prejudicial. [∗]
∗
  It is significant that the majority opinion omits any
discussion of this “burden shifting” aspect of the plain error
rule delineated in Powell. Even though as recently as September
19, 2001, at the 2001 William S. Fulton, Jr., Appellate Military
Judges’ Conference and Training Seminar in Washington, D.C.,
Powell, with its unusual shifting of burden to the Government to
show prejudice, was cited as one of the leading cases of the
plain error doctrine (see conference handout materials, Standard
of Review at 15).

    One is reminded of a similar incident of omission in the
Sherlock Holmes story of “Silver Blaze,” where a local police
inspector was trying to get Sherlock Holmes’s view of the
evidence at the scene of a larceny:

          “Is there any other point to which you
          wish to draw my attention?”

          [Holmes replied] “To the curious incident
          of the dog in the night-time.”

          [Police Inspector] “The dog did nothing in
          the night-time.”

          “That was the curious incident,” remarked
          Sherlock Holmes.

Daniel Stashower, Teller of Tales - The Life of Arthur Conan
Doyle 131-32 (1999).
United States v. Barner, No. 00-0431/AR




Id. at 464-65 (emphasis added).


    This rule of Powell is flawed, as I explained in United

States v. Wilson, 54 MJ 57, 60 (2000) (Sullivan, J., concurring

in part and dissenting in part).       There should be no burden on

the Government in plain error cases to show that the error was

harmless in view of the outcome of the case.       That teaching in

Powell should be expressly overruled because it established the

most liberal plain-error rule in our country, although, since

then our Court has apparently moved away from this unacceptable

portion of Powell, sub silentio.       United States v. Tanksley, 54

MJ 169, 173 (2000).   See United States v. Kho, 54 MJ 63, 65

(2000) (Sullivan, J., concurring).




                                   2
