                        UNITED STATES, Appellee

                                        v.

                  David F. MORAN, Airman First Class
                       U.S. Air Force, Appellant

                                  No. 06-0207

                           Crim. App. No. 35755

       United States Court of Appeals for the Armed Forces

           Argued November 15, 2006 and March 13, 2007

                          Decided June 22, 2007

BAKER, J., delivered the opinion of the Court, in which STUCKY and
RYAN, JJ., joined. EFFRON, C.J., filed an opinion concurring in part
and in the result. ERDMANN, J., filed an opinion concurring in the
result.

                                     Counsel

For Appellant: Major Anthony D. Ortiz (argued); Lieutenant
Colonel Mark R. Strickland (on brief).

For Appellee: Captain Jamie L. Mendelson (argued); Colonel
Gerald R. Bruce, Lieutenant Colonel Robert V. Combs, and Major
Matthew S. Ward (on brief); Lieutenant Colonel Gary F. Spencer
and Major Kimani R. Eason.

Amicus Curiae for Appellant: Steven H. Goldblatt, Esq.
(supervising attorney), Richard H. Frankel, Esq. (supervising
attorney), Eamonn K. Moran (law student), Kate Z. Schneider (law
student) (on brief) – for the Appellate Litigation Program,
Georgetown University Law Center.

Amicus Curiae for Appellee: Hardy Vieux, Esq. (supervising
attorney), Sarah Bateman (law student), Susrut Carpenter (law
student), Karim Marshall (law student), Jennifer Myers (law
student) and Bridget Van Buren (law student) (on brief) – for
the Washington College of Law, American University.

Military Judge:    Kirk Granier
            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Moran, No. 06-0207/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was an airman first class (E-3) assigned to

Keesler Air Force Base, Mississippi.   Contrary to his pleas, a

general court-martial composed of officer members convicted

Appellant of drunk driving, wrongful distribution of cocaine,

separate specifications of wrongful use of ecstasy, cocaine, and

LSD, and obstruction of justice in violation of Articles 111,

112a and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 911, 912a, 934 (2000), respectively.   Appellant was sentenced

to a dishonorable discharge, confinement for twenty-four months,

and reduction in grade to E-1.   The convening authority

dismissed the cocaine distribution specification and reassessed

the sentence, approving a bad-conduct discharge, confinement for

twenty months and reduction to E-1.    The United States Air Force

Court of Criminal Appeals affirmed.    United States v. Moran, No.

ACM 35755, 2005 CCA LEXIS 339, at *13, 2005 WL 2875128, at *5

(A.F. Ct. Crim. App. Oct. 20, 2005) (unpublished).

     On Appellant’s petition we granted review of the following

issue:

     WHETHER APPELLANT’S SUBSTANTIAL RIGHTS WERE
     MATERIALLY PREJUDICED WHEN PROSECUTION WITNESSES
     AND TRIAL COUNSEL COMMENTED ON APPELLANT’S
     REQUEST FOR AN ATTORNEY AND APPELLANT’S REFUSAL
     TO GIVE CONSENT FOR A SEARCH AND SEIZURE OF HIS
     HAIR AND BLOOD.

We subsequently specified two additional issues:



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United States v. Moran, No. 06-0207/AF


     I.      WHETHER EVIDENCE REFLECTING THE ACCUSED’S
             EXERCISE OF CONSTITUTIONAL RIGHTS WAS
             ADMISSIBLE AS PART OF THE BACKGROUND
             SEQUENCE OR CHRONOLOGY OF EVENTS LEADING TO
             THE SEIZURE OR DISCOVERY OF OTHERWISE
             ADMISSIBLE EVIDENCE.

     II.     IF EVIDENCE OF THE ACCUSED’S EXERCISE OF HIS
             CONSTITUTIONAL RIGHTS WAS ADMISSIBLE FOR
             PURPOSES OF ESTABLISHING BACKGROUND SEQUENCE
             OR CHRONOLOGY WITHOUT OBJECTION, WAS IT
             PLAIN ERROR IF NO INSTRUCTION WAS GIVEN
             ADVISING MEMBERS THAT THE EVIDENCE COULD NOT
             BE CONSIDERED AS EVIDENCE OF GUILT OR
             CRIMINAL CONDUCT.

     We conclude that trial counsel’s statement was obvious

error but Appellant has failed to demonstrate material prejudice

to his substantial rights.    Also, assuming without deciding that

admission of the contested witness statements was error, their

admission was harmless beyond a reasonable doubt.    As a result,

we affirm.

                              BACKGROUND

     In the course of their testimony, three Government

witnesses at the court-martial either directly or by implication

mentioned Appellant’s invocation of his constitutional rights.

Two of these witnesses testified regarding the allegations of

illegal use and distribution of controlled substances.      The

other witness testified regarding the drunk driving allegation.

During closing argument on findings trial counsel commented on

Appellant’s exercise of his rights, specifically drawing the

members’ attention to Appellant’s exercise of his right to


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United States v. Moran, No. 06-0207/AF


counsel and implying that invocation of the right reflected his

guilt.

     Though Appellant requested and received an instruction on

his right to remain silent, defense counsel did not object to

either the witnesses’ or trial counsel’s statements.   Further,

there were no sua sponte curative or limiting instructions to

the members mitigating any potential prejudice.

     Appellant now argues that his substantial rights were

materially prejudiced by both the witnesses’ testimony and the

trial counsel’s argument.   According to Appellant, since the

drug allegations and the drunk driving offense were “hotly

contested,” the impermissible statements may have eliminated any

reasonable doubt that the members would have otherwise

entertained.

                            DISCUSSION

     Whether there has been improper reference to an accused’s

invocation of his constitutional rights is a question of law

that we review de novo.   United States v. Alameda, 57 M.J. 190,

198 (C.A.A.F. 2002) (“[i]ssues involving argument referring to

unlawful subject matter are reviewed de novo as issues of law”).

     Having failed to preserve any asserted errors at trial,

Appellant forfeited them absent “plain error.”    Military Rule of

Evidence (M.R.E.) 103(a)(1), 103(d); United States v. Bungert,

62 M.J. 346, 347 (C.A.A.F. 2006).    Whether there was “plain


                                 4
United States v. Moran, No. 06-0207/AF


error” is also a determination reviewed de novo.   United States

v. Gudmundson, 57 M.J. 493, 495 (C.A.A.F. 2002).

      Plain error is established when:   (1) an error was

committed; (2) the error was plain, clear, or obvious; and (3)

the error resulted in material prejudice to an appellant’s

substantial rights.   United States v. Powell, 49 M.J. 460, 463-

65 (C.A.A.F. 1998).   Appellant has the burden of persuading this

Court that these elements of the plain error test are satisfied.

United States v. Scalo, 60 M.J. 435, 436 (C.A.A.F. 2005).

I.   References to an Accused’s Constitutional Rights

      The law generally discourages trial counsel’s presentation

of testimony or argument mentioning an accused’s invocation of

his constitutional rights unless, for example, an accused

invites such testimony or argument in rebuttal to his own case.

See, e.g., United States v. Robinson, 485 U.S. 25, 32 (1988)

(finding no constitutional infirmity in a prosecutor’s statement

mentioning the invocation of an accused’s rights if the

statement was a “fair response to a claim made by defendant or

his counsel”); United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.

2005).   Such 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.”

United States v. Daoud, 741 F.2d. 478, 480 (1st Cir. 1984).




                                 5
United States v. Moran, No. 06-0207/AF


     This constraint against mentioning the exercise of

constitutional rights does not depend on the specific right at

issue.    There is “little, if any, valid distinction” between the

harm caused by comments regarding an accused’s invocation of any

protected rights.   See, e.g., United States v. Thame, 846 F.2d

200, 206 (3d Cir. 1988) (holding that for the purposes of

finding improper prosecutorial comment, there is no valid

difference between references to an accused’s Fifth, Fourth, or

Sixth Amendment rights) (citation and quotation marks omitted).1

     This case addresses comments about an accused’s exercise of

his Fourth and Fifth2 Amendment rights, matters on which this

Court has ruled directly.   In United States v. Turner, 39 M.J.

259, 260-61 (C.M.A. 1994), we addressed the prohibition against

comments about an accused’s assertion of his Fourth Amendment

rights.   We stated that “the same reasoning that protects from

1
 This conclusion was foreshadowed by Justice Black, joined by
Chief Justice Warren, Justice Brennan and Justice Douglas, in
his often-cited concurrence in Grunewald v. United States, in
which Justice Black argued that the “value of constitutional
privileges is largely destroyed if persons can be penalized for
relying on them.” 353 U.S. 391, 425 (1957).
2
  In his brief, Appellant has characterized references to his
right to counsel at the interrogation stage as a Sixth Amendment
protection. However, the Manual for Courts-Martial (MCM)
recognizes the distinction between the Fifth Amendment right to
counsel and the Sixth Amendment right to counsel. The context
in which Appellant has referenced the right suggests the
reference is more appropriately to the Fifth Amendment. See
Drafters’ Analysis of the Military Rules of Evidence: Manual
for Courts-Martial, United States, Analysis of the Military
Rules of Evidence app. 22 at A22-15 (2005 ed.).

                                  6
United States v. Moran, No. 06-0207/AF


comment an accused’s exercise of a Fifth Amendment privilege

applies equally to assertion of the right to privacy under the

Fourth Amendment.”   Id. at 262 (citations omitted).

      In United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976),

we addressed comments regarding, inter alia, an accused’s

exercise of his Fifth Amendment rights stating that:

      it is the well-settled law of this Court that it is
      improper to bring to the attention of the triers of
      fact that an accused . . . asserted his rights to
      counsel . . . . This principle is founded upon the
      open-eyed realization that to many . . . the
      invocation by a suspect of his constitutional and
      statutory rights to . . . counsel equates to a
      conclusion of guilt -- that a truly innocent accused
      has nothing to hide behind assertion of these
      privileges.

Citations and footnotes omitted.

      This conclusion is echoed in the Military Rules of Evidence

(M.R.E.).   “The fact that the accused during official

questioning and in exercise of rights under the . . .

Constitution . . . requested counsel . . . is inadmissible

against the accused.”     M.R.E. 301(f)(3).

II.   Witness Testimony

      We recognize that improper statements made during witness

testimony are subject both to the “crucible of cross

examination” and to credibility determinations by the members.

See, e.g., United States v. Best, 61 M.J. 376, 390 (C.A.A.F.

2005) (Baker, J., concurring in the result) (noting that a



                                   7
United States v. Moran, No. 06-0207/AF


witness’s statements having been subjected to the “crucible of

cross examination” provided added assurances of the witness’s

“integrity and impartiality”).   Thus, unlike trial counsel’s

statements during argument, a witness’s statement can be

directly tested or clarified.    See United States v. Rockwood, 52

M.J. 98, 103 (C.A.A.F. 1999) (citing United States v. LeMere, 22

M.J. 61, 69 (C.M.A. 1986)); compare United States v. Prescott,

581 F.2d 1343, 1352 (9th Cir. 1978) (where the court emphasizes

that it was “use by the prosecutor,” rather than simple mention

by a witness of the fact that the accused invoked her

constitutional rights, that was dispositive).

     Nonetheless, statements made by witnesses concerning the

invocation of an accused’s rights must be reviewed closely.

This is especially so when such comments are reiterated by trial

counsel and when the trial is before members rather than a

military judge alone.   See, e.g., Alameda, 57 M.J. at 199

(holding that military judge committed constitutional error by

permitting the prosecution to introduce evidence of the

accused’s post-apprehension silence as substantive evidence of

guilt, and then to comment on the evidence in closing argument);

compare Hill v. Turpin, 135 F.3d 1411, 1417-18 (11th Cir. 1998)

(noting prosecutor’s repeated references during the trial to




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United States v. Moran, No. 06-0207/AF


impermissible testimony can be determinative in finding the

initial allowance of the testimony reversible error).3

     In the present case, Appellant contends that the statements

made by the three witnesses improperly mentioned the invocation

of his constitutional rights and that the military judge

committed plain error when he did not sua sponte strike the

references and provide a corrective instruction to the members.

We address each statement in turn.

     Special Agent TWB

     On direct examination, Special Agent TWB of the base Office

of Special Investigations (OSI) was asked by trial counsel about

the investigatory interview he had with Appellant and the

agent’s request for a hair sample from Appellant.

     [TC:] [Under] . . . what . . . authority were you
     using to . . . get the body hair?

     [TWB:] Initially we tried consent. And he didn’t
     consent to . . . us . . . collecting [his] body hair.

Under the Fourth Amendment, Appellant had the right to deny the

special agent’s initial request.       Appellant reasonably contends

that the reference to his refusal to consent may have led

members to infer his guilt, an impermissible inference

exacerbated later in the court-martial by trial counsel’s

3
  Regarding relevant differences between military judge-alone
trials and courts-martial before members, see United States v.
Robbins, 52 M.J. 455, 457 (C.A.A.F. 2000) (military judges,
unlike lay members, are “presumed capable of filtering out
inadmissible evidence”).

                                   9
United States v. Moran, No. 06-0207/AF

reference to the testimony.   Indeed, in the past we have

expressed our concern as well by stating that “refus[ing] to

consent to a warrantless search is privileged conduct which

cannot be considered as evidence of criminal wrongdoing.”

Turner, 39 M.J. at 262.

     However, the lower court concluded that the witness’s

statement was “reasonably necessary to describe [the] events”

about which the agent was testifying.    Moran, 2005 CCA LEXIS

339, at *8, 2005 WL 2875128, at *3; see also United States v.

Ross, 7 M.J. 174, 175-76 (C.M.A. 1979) (noting, without comment,

that “testimonial res gestae,” could permit the admission of

statements “necessary to complete the chronological sequence of

[an] agent’s story”); United States v. Smith, 52 M.J. 337, 341

n.2 (C.A.A.F. 2000) (admitting otherwise disallowed testimony

was permitted because it was part of the “res gestae” of the

offense) (citing United States v. Jackson, 882 F.2d 1444, 1450

(9th Cir. 1989)).   While Appellant claims that the introduction

of this evidence had “‘but one objective[:] to induce the jury

to infer guilt,’” the Government argues that Special Agent TWB’s

testimony was a rational response to the trial counsel’s

inquiry, explaining to the court why he was unable to obtain a

hair sample at the initial interview.

     However, we need not ultimately resolve this issue.     For we

conclude that, even if the admission of this statement was


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United States v. Moran, No. 06-0207/AF

error, plain or otherwise, for the reasons stated in Section V,

it was harmless beyond a reasonable doubt.

     Officer RF4

     On direct examination Officer RF made two statements that

Appellant now challenges.

     First, Officer RF was asked about the delay in obtaining a

hair sample from Appellant.

     [TC:]   Okay. Were you able to get the [hair]
             collection when you wanted to . . . ?

     [RF:]   No, sir.

     [TC:]   Okay, what happened to mess that up?

     [RF:]   The day we obtained search authorization, we
             contacted Airman Moran’s first sergeant, asked
             him if he could please get him to our office so
             we could collect the hair sample. He related
             that he [Moran] was en route to Hattiesburg,
             Mississippi, to see his civilian attorney. We
             asked him, “Is there any way you can contact
             him.” He said he could. And we asked him to
             please tell him just to turn around and come
             back. He allowed Airman Moran to continue to
             see his -- see his attorney.

     Appellant contends that the witness’s comments about

Appellant’s travel “to see his attorney” represented

impermissible references to his Sixth Amendment right to




4
  At the time of trial, Officer RF was a member of the Gulfport
Police Department. He had previously been on active duty with
OSI during the investigation of the offenses involving
Appellant.

                                11
United States v. Moran, No. 06-0207/AF

counsel.5    Further, these improper comments were aggravated by

trial counsel’s subsequent reference to them during the findings

argument.

     Second, Officer RF was asked about his failed attempt to

procure a hair sample from Appellant once Officer RF had been

authorized to demand the sample.         Officer RF explained that

Appellant no longer “[had] enough hair on his body that [he]

could obtain a hair sample.”    The military judge inquired

further:

     MJ:      What was Airman Moran’s explanation for shaving
              all of his hair off? Did you ask him? Did he
              give you one?

     [RF:]    No, sir, I didn’t.

     MJ:      You didn’t inquire?

     [RF:]    The reason I didn’t inquire was I felt that was
              an incriminating question, and I would have to
              advise him of his rights. He’d already asked
              for counsel. I was just there to obtain a hair
              sample due to the search authorization, and not
              to ask him questions.

     Appellant contends that this line of questioning

represented impermissible references to both his Fourth and

Sixth Amendment rights.

     Here too, the Government argues, and the lower court

concluded, that Officer RF’s first statement represented a

logical, chronological recounting of events incident to the

5
 Reference to the right to counsel at issue in the case was in
the context of the Fifth Amendment.

                                    12
United States v. Moran, No. 06-0207/AF

attempted seizure of hair.   Under this “res gestae” analysis, it

would have been unnatural for Officer RF not to mention why he

was unable to secure a hair sample immediately after receiving

authorization to demand one.    Moreover, it does not appear that

the witness was stating Appellant’s whereabouts to provide the

court with evidence of guilt.   Indeed, the testimony was not

that Officer RF knew that Appellant had gone to see his lawyer

but rather that Appellant’s first sergeant had told him that

Appellant had done so.   In this regard, it is noteworthy that

this issue comes to us as an assertion of plain error.    While

not determinative, the absence of a defense objection suggests

that defense counsel and the military judge heard this testimony

in the same manner as the lower court read it on review.   See,

e.g., United States v. Nelson, 1 M.J. 235, 238 n.6 (C.M.A. 1975)

(citing United States v. Saint John, 23 C.M.A. 20, 48 C.M.R. 312

(C.M.A. 1974); United States v. Ryan, 21 C.M.A. 9, 44 C.M.R. 63

(C.M.A. 1971); United States v. Wood, 18 C.M.A. 291, 40 C.M.R. 3

(C.M.A. 1969)).

     The Government posits that Officer RF’s second statement

about both Appellant’s shaving and Officer RF’s knowledge of

Appellant’s prior assertion of his right to counsel was

similarly a reasonable response to the military judge’s

question.   Officer RF accurately explained the otherwise curious

fact that although Appellant had enough hair nine days prior for


                                 13
United States v. Moran, No. 06-0207/AF

the agent to request a sample, once the agent received the

necessary authorization to demand a sample, he was unable to

secure any hair.    Similarly, Officer RF’s knowledge of Appellant

having already secured a lawyer was not necessarily presented as

evidence of guilt by Officer RF, but rather was made in direct

response to the military judge’s inquiry as to the agent’s

omission of what seemed an obvious and necessary question:

asking the recently hirsute Appellant why he no longer had any

hair.

        These statements are the most problematic of the witness

statements at issue.    In particular, the military judge’s

questioning of Officer RF raises concern.    On the one hand,

given what was already known to the court at the time of the

question -- that Appellant had asked for a lawyer and had

refused to provide a hair sample -- the military judge ought to

have been on notice that his question to the officer about why

he had not made further inquiry of Appellant would have been

likely to elicit a response referencing Appellant’s invocation

of rights.    And, indeed, the question did in fact directly

elicit a response that improperly referenced Appellant’s

exercise of his constitutional protections.    On the other hand,

Appellant did not object to the military judge’s inquiry, and

the lower court found that these statements fell within the res

gestae rubric as well.    Finally, the witness was careful not to


                                  14
United States v. Moran, No. 06-0207/AF

use the military judge’s question to suggest an improper

inference from Appellant’s actions.

       As with the other witness statements, we need not and do

not ultimately decide whether the admission of Officer RF’s

statements was error, for we conclude in Section V that if the

admission of these statement was error of any type, it was

harmless beyond a reasonable doubt.

III.   Implied Consent -– Testimony of Officer JF

       Officer JF was the Gulfport policeman who investigated

Appellant’s off-base car accident.     At the scene of the

accident, Officer JF detained Appellant under suspicion for

driving under the influence and escorted Appellant to a local

hospital for medical care.     Officer JF testified regarding the

drunk driving charge and was asked on direct examination about

his attempts to secure a blood sample from Appellant to test for

intoxication.

       [TC:]   Okay. Now what happened when you got to the
               hospital?

       [JF:]   I offered him a consent form [to draw his blood]
               because the hospital requires some form of
               written verification that he is giving the
               samples, at which time he refused to sign it.

       [TC:] Okay.   What did you do then?

       [JF:]   I contacted Judge Richard Smith, advised him of
               the circumstances over the telephone, was told
               to come to his house, which I did. While at the
               hospital, I filled out the search warrant with
               his information. I then went to Judge Smith’s


                                  15
United States v. Moran, No. 06-0207/AF

             house, affirmed to the affidavit. The warrant
             was signed, and I returned back to the hospital.

     [TC:]    Okay.   What happened when you got there?

     [JF:]    I made contact with the RN, and the blood draw
              was administered.

     On cross-examination, the defense counsel asked the witness

to provide more details about the events at the hospital.

     [DC:]   And how long were you in the emergency room with
             him [Appellant] before you left to see Judge
             Smith?

     [JF:]   Probably -- I couldn’t even give you a time. It
             -- it was -- I was with him enough time to talk
             to him, for him to tell me that he would refuse
             the [blood] test.

     Appellant contends that the testimony regarding his refusal

to consent to have his blood drawn implicated his Fourth

Amendment right to be free from warrantless searches and

seizures.    Under Mississippi law, in the case of a driver who

refuses to consent to have his blood drawn, “evidence of [his]

refusal shall be admissible in any criminal action . . . .”

Miss. Code Ann. § 63-11-41 (1972).     The United States Supreme

Court has upheld the doctrine of implied consent, which as a

general matter is recognized in military case law as well.      See

South Dakota v. Neville, 459 U.S. 553, 566 (1983) (upholding a

state statute allowing evidence of refusal to submit to a blood

alcohol test as admissible at trial to show evidence of driving

under the influence; consent for the test was implied by the



                                  16
United States v. Moran, No. 06-0207/AF

accused’s entry onto the state’s motorways); Ricks v. State, 611

So. 2d 212, 216 (Miss. 1992) (upholding the Mississippi implied

consent statute).   Regarding military references to implied

consent compare United States v. Armstrong, 9 M.J. 374, 383

(C.M.A. 1980) (stating that “any applicable requirements of . .

. ‘implied consent’ . . . were met”) with United States v. Pond,

36 M.J. 1050, 1057 (A.F.C.M.R. 1993) (holding that the use of an

appellant’s initial refusal to undergo a urine test was

improper, notwithstanding the state’s implied consent law,

because “the California deputy did not follow the terms of the

California implied consent statute”).

     Nonetheless, here too we decline to reach the ultimate

question presented.   In spite of having invited further briefs

on the issue of implied consent we are left with only a passing

reference to the doctrine in a somewhat dated opinion of this

Court.   Missing from Armstrong is a thorough discussion of

several important questions such as the current propriety of

applying a state implied consent statute to the military or the

applicability of the federal implied consent statute, 18 U.S.C.

3118 (2000).6   This is an important issue which may in the future

prove case determinative.



6
  This statute allows for the prosecutorial use of a defendant’s
refusal to consent to a chemical test “in any case arising” from
the incident. 18 U.S.C. § 3118(b).

                                17
United States v. Moran, No. 06-0207/AF

     Although we could pursue further development of this issue,

principles of judicial economy and justice argue for resolving

this case at this time if we can in order to negate further

appellate delay.   As a result, for the purpose of this case

alone we will assume without deciding that the admission of

Officer JF’s statement was error of constitutional dimension.

Thus, we consider whether the assumed error was harmless beyond

a reasonable doubt.   Alameda, 57 M.J. at 199.

     On the one hand, the members may have inferred from

Appellant’s exercise of his constitutional rights that he had a

guilty conscience.    Appellant was aware he was inebriated and

the members might well infer that he had no reason to decline

consent to draw blood absent innate knowledge that he would test

over the legal limit.   On the other hand, the evidence against

Appellant was otherwise overwhelming.    A badly damaged vehicle

registered in Appellant’s name was discovered at the accident

scene.    Appellant was observed at the scene of the accident two

feet from the driver’s door, suffering injuries to his legs,

having trouble getting to his feet, and acting in an inebriated

manner.   Finally, Appellant’s blood was lawfully drawn as a

result of the warrant obtained from Judge Smith, which indicated

a blood alcohol level of .25 percent ethanol.    Based on this

evidence we are persuaded that if there was error in admitting




                                 18
United States v. Moran, No. 06-0207/AF

officer JF’s statement, it was harmless beyond a reasonable

doubt.

IV.   Trial Counsel’s Comment

      In the closing part of his findings argument to the

members, trial counsel turned his attention to evidence in

support of the allegations of drug use and distribution.     He

stated the following:

      [TC:]   Now these drug charges. What’s probably
              certainly close to the some of the most damning
              evidence that you have in this courtroom today
              is the fact that on March 20th he is called into
              [the] investigations [office] . . . . The OSI
              says, “We would like to take your hair.” He
              says, “No, thank you. I want to speak to my
              attorney first.”

Emphasis added.

      This statement was error, and the error was obvious.    Trial

counsel’s argument was improper because it was an inaccurate

characterization of the testimony presented, and it improperly

referenced Appellant’s exercise of a constitutional right and

suggested, intentionally or not, that the members infer guilt

from the invocation of that right.

      This Court has held that “‘it is improper for a prosecutor

to ask the court members to infer guilt because an accused has

exercised his constitutional rights.’”    United States v. Gilley,

56 M.J. 113, 123 (C.A.A.F. 2001) (quoting United States v.

Carpenter, 51 M.J. 393, 396 (C.A.A.F. 1999)).    An argument by



                                 19
United States v. Moran, No. 06-0207/AF

trial counsel “which comments upon an accused’s exercise of his

or her constitutionally protected rights is ‘beyond the bounds

of fair comment.’”   United States v. Edwards, 35 M.J. 351, 355

(C.M.A. 1992) (finding that it is improper for counsel to

comment on accused’s refusal to plead guilty) (citation

omitted); see also United States v. Toro, 37 M.J. 313, 318

(C.M.A. 1993) (finding that it is improper for trial counsel to

comment on an accused’s exercise of his right to remain silent);

United States v. Clifton, 15 M.J. 26, 29 (C.M.A. 1983) (finding

that it is improper for trial counsel to argue that the fact

that the accused “asserted his rights” and “fought this every

inch of the way” was indicative of his guilt).

     A trial counsel’s statement implicating an accused’s

assertion of his rights is not per se impermissible.     See United

States v. Moore, 917 F.2d 215, 225 (6th Cir. 1990); United

States v. Milstead, 671 F.2d 950 (5th Cir. 1982).     In context,

it may appropriately be made in rebuttal.   See, e.g., Edwards,

35 M.J. at 355.   Additionally, if a statement “was an isolated

reference to a singular invocation of rights” it may be harmless

in the context of the entire record.   United States v. Sidwell,

51 M.J. 262, 265 (C.A.A.F. 1999) (citing United States v.

Garrett, 24 M.J. 413, 416-17 (C.M.A. 1987)).     As a result, this

Court examines prosecutorial comment “within the context of the




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United States v. Moran, No. 06-0207/AF

entire court-martial.”   United States v. Baer, 53 M.J. 235, 238

(C.A.A.F. 2000).

     Turning to the statement in question, the first problem is

that it is not a correct restatement of the evidence.    There is

no evidence that, upon being initially asked to surrender a hair

sample, Appellant invoked his Fifth Amendment right to counsel

as trial counsel had suggested.    Special Agent TWB testified:

“Initially we tried consent.   And he didn’t consent to the -- us

taking -- using -- collecting body hair.”

     The second problem is that read in its most natural light,

trial counsel’s statement about Appellant’s request for counsel

was not simply hortatory.   Rather, it appears demonstrably

designed to exploit Appellant’s rights invocation, directly

linking Appellant’s reliance on his rights with his likely

guilt.

     As such, this statement was “‘beyond the bounds of fair

comment,’” Edwards, 35 M.J. at 355 (citation omitted), and the

military judge erred in allowing it without a curative

instruction.   By arguing that the accused’s invocation of his

right to counsel was substantive evidence of his guilt, the

statement violated Appellant’s Fifth Amendment rights, M.R.E.

301(f)(3), and Rule for Courts-Martial (R.C.M.) 919, which sets

forth the permissible content of trial counsel’s argument on




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United States v. Moran, No. 06-0207/AF

findings.7   In our system of justice, the exercise of the right

to counsel is proof of neither guilt nor innocence.

V.   Prejudice

      Having concluded that the trial counsel erred during his

closing argument, we must now determine whether the error

materially prejudiced Appellant’s substantial rights with

respect to Appellant’s convictions for using and distributing

drugs.   We do so cognizant that the error in closing argument

occurred in the context of certain witnesses’ statements, which

we, in turn, assume without deciding might have been erroneously

admitted.    Thus, we must assess the prejudicial impact of these

assumed errors as well.   In addition, we assume in the context

of the drunk driving offense that Appellant’s refusal to consent

to the seizure of his blood should not have been presented to

the members, but we have already concluded above that any error

there was harmless beyond a reasonable doubt.

      “[B]efore a federal constitutional error can be held

harmless, the court must be able to declare a belief that it was

harmless beyond a reasonable doubt.”   Chapman v. California, 386

U.S. 18, 24 (1967).   This will depend on “‘whether there is a


7
  In its Discussion, R.C.M. 919 states that “[t]rial counsel may
not comment on the accused’s exercise of the right against self-
incrimination or the right to counsel.” This Court has noted
that “Although not binding, the Discussion reflects applicable
judicial precedent.” United States v. Carter, 61 M.J. 30, 33
(C.A.A.F. 2005).

                                 22
United States v. Moran, No. 06-0207/AF

reasonable possibility that the evidence [or error] complained

of might have contributed to the conviction.’”   Id. (citation

omitted).   “To say that an error did not ‘contribute’ to the

ensuing verdict is not, of course, to say that the jury was

totally unaware of that feature of the trial later held to have

been erroneous.”   Yates v. Evatt, 500 U.S. 391, 403 (1991),

overruled on other grounds by Estelle v. McGuire, 502 U.S. 62,

72 n.4 (1991).   It is, rather, “to find that error unimportant

in relation to everything else the jury considered on the issue

in question, as revealed in the record.”   Id.   For the reasons

stated below, we conclude that trial counsel’s comments during

argument and any of the other assumed errors were harmless

beyond a reasonable doubt.

     First, we conclude that the prejudicial impact of trial

counsel’s comments was dampened by the minor part they played in

the midst of a nineteen-page argument.   We are cognizant that

comments by trial counsel -- read apart from a much longer

argument and without the context of the trial setting -- might

appear more egregious when examined on appellate review than

they actually were when made during the trial.

     Second, other evidence supporting the drug convictions that

was properly admitted was sufficient to dispel any notion that

the contested witness statements and trial counsel’s comments




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United States v. Moran, No. 06-0207/AF

“tipped the balance” against Appellant.   Compare United States

v. Berry, 61 M.J. 91, 98 (C.A.A.F. 2005).

     Appellant’s convictions of the drug offenses were supported

by evidence provided by six witnesses who testified against him.

Five of theses witnesses presented evidence of his ecstasy use,

four of them testified regarding his LSD use, and four testified

regarding his cocaine use.

     Appellant argues that the value of this testimony is

suspect as the witnesses were “dirty.”    These witnesses had been

involved with drugs and had either been court-martialed or were

awaiting trial when they appeared.   Further, at least two of the

witnesses were testifying under requirements imposed by their

plea agreements and at least one was granted testimonial

immunity for his testimony against Appellant.   While the

witnesses’ criminal pasts and the circumstances under which they

testified may have affected their credibility, it is axiomatic

that credibility determinations are within the province of the

members.   The very reason that witnesses are cross-examined is

“to test their assertions for accuracy, bias, conflict of

interest, or other reasons to discount or disbelieve their

testimony.”   Rockwood, 52 M.J. at 103.

     Further, we note that the circumstances under which the

witnesses appeared were not obscured from the members.   Defense

counsel’s cross-examination brought to light the criminal


                                24
United States v. Moran, No. 06-0207/AF

history of the witnesses, the particulars of the agreements each

had struck with the Government prior to appearing, and

competently attacked their credibility generally.   Moreover,

each witness testified regarding a different use of drugs by

Appellant.   In assessing the credibility of these witnesses, the

members would have to assess not just the possibility that six

witnesses might finger Appellant to improve their situations,

but that six witnesses would independently decide to do so by

describing six different instances of drug use.

     Third, there is substantial, and arguably novel,

circumstantial evidence regarding Appellant’s consciousness of

guilt that was properly before the members, namely evidence that

Appellant shaved his body hair –- all of his body hair -– which

prevented the Government from testing his hair for drug use.    In

particular, the evidence demonstrates that at some point after

learning that investigators wished to procure a hair sample from

him to test for the drug use alleged under Charge III, Appellant

shaved off all of his hair.    An inference of guilt stemming from

Appellant’s shaving was permissible under the “consciousness of

guilt” doctrine.   There exists longstanding precedent that,

while such behavior may not give rise to a presumption of guilt,

it nonetheless can, within certain constraints, be entered into

evidence and commented upon.   See, e.g., United States v. Cook,

48 M.J. 64, 66 (C.A.A.F. 1998); United States v. Johnson, 6


                                 25
United States v. Moran, No. 06-0207/AF

C.M.A. 20, 24, 19 C.M.R. 146, 150 (1955); United States v.

Buchana, 19 C.M.A. 394, 397, 41 C.M.R. 394, 397 (1970) (evidence

of “consciousness of guilt” -- such as an accused’s flight from

the scene of a crime -- is admissible).

     Moreover, the effect of Appellant shaving his body in this

case was essentially the destruction of evidence.   That “an

inference of consciousness of guilt can be drawn from the

destruction of evidence is well-recognized in the law.”

Haemonetics Corp. v. Dupre, 238 B.R. 224, 228 n.10 (D. Mass.

1999); see also Sullivan v. General Motors Corp., 772 F. Supp.

358, 360 (N.D. Ohio 1991) (citing State v. Strub, 355 N.E. 2d

819, 825 (Ohio Ct. App. 1975)); United States v. Howard, 228 F.

Supp. 939, 942 (D. Neb. 1964).

     Based on the foregoing, we are “convinced that independent

evidence of [A]ppellant’s guilt was overwhelming,” a conclusion

that renders any errors, assumed or otherwise, harmless beyond a

reasonable doubt.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                 26
United States v._Moran, No. 06-0207/AF


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

     I concur in the majority opinion except for that portion of

Section III that discusses implied consent.   See United States

v. Moran, 65 M.J. ___ (3) (C.A.A.F. 2007) (Erdmann, J.,

concurring in the result).
United States v. Moran, No. 06-0207/AF


     ERDMANN, Judge (concurring in the result):

     I agree with the ultimate resolution in this case:

assuming that the references by witnesses and trial counsel to

Moran’s invocation of his constitutional rights were plain

error, any such errors were harmless beyond a reasonable doubt.

I write separately, however, as I do not join in those portions

of the majority opinion that address issues not necessary to

reach that result.

     Despite the “if error, harmless” resolution, the majority

suggests that the admission of statements about Moran’s

invocation of rights may have been admissible.    I certainly

recognize that in some cases, testimony about a defendant’s

invocation of rights may be admissible.   However, routine

disclosure of the fact that an accused has asserted his

constitutional rights should not be sanctioned under the guise

of setting forth a chronology of events or merely to establish

the “res gestae” of an offense.   The rules dealing with

admissibility of assertions of constitutional rights are rules

of prohibition.   See, e.g., Military Rule of Evidence (M.R.E.)

301(f)(1); United States v. Gilley, 56 M.J. 113, 120 (C.A.A.F.

2001) (assertion of Fifth Amendment rights generally

inadmissible); United States v. Turner, 39 M.J. 259, 262 (C.M.A.

1994) (refusal to consent may not be considered as evidence of
United States v. Moran, No. 06-0207/AF


criminal conduct).    Exceptions to these rules of prohibition are

carved out of unique circumstances not present in this case.

     In this case, any relevance that might be ascribed to

Moran’s assertions of rights is substantially outweighed by the

risk that the members, without guiding instruction from the

military judge, would use that evidence to improperly infer

guilt or consciousness of guilt.

     It is the well-settled law of this Court that it is
     improper to bring to the attention of the triers of
     fact that an accused, upon being questioned on an
     occasion prior to trial, asserted his rights to
     counsel or to remain silent. . . . This principle is
     founded upon the open-eyed realization that to many,
     even to those who ought know better, the invocation by
     a suspect of his constitutional and statutory rights
     to silence and to counsel equates to a conclusion of
     guilt -- that a truly innocent accused has nothing to
     hide behind assertion of these privileges.

United States v. Riley, 47 M.J. 276, 279 (C.A.A.F. 1997)

(quoting United States v. Moore, 1 M.J. 390, 391 (C.M.A. 1976));

see also M.R.E. 403 (excluding relevant evidence where

“probative value is substantially outweighed by the danger of

unfair prejudice”).

     The record of trial presents nothing suggesting that

evidence relating to Moran’s refusal to consent to giving a hair

sample or evidence reflecting that Officer RF did not ask why

Moran shaved his body because Moran had previously asserted his

right to counsel were critical components of the Government’s

case or even necessary to give context to other evidence.    Given


                                   2
United States v. Moran, No. 06-0207/AF


the ultimate resolution of this case, speculation as to why

these references to Moran’s assertions of rights may have been

admissible is simply not necessary.   I therefore do not join

that portion of the majority opinion that discusses alternative

theories of admissibility.

     For similar reasons I do not join that portion of the

majority opinion discussing implied consent or the admissibility

of refusal to consent to blood extraction under state implied

consent laws.   This case does not deal with implied consent:

Officer JF testified that once at the hospital he “offered

[Moran] a consent form [for the blood test] because the hospital

requires some form of written verification that he is giving the

samples, at which time he refused to sign it.”   There was no

testimony or evidence relating to any Mississippi requirement

for consent under state law.   In addition, the Military Rules of

Evidence have no exception for admitting refusal to consent

under state implied consent laws.    Thus, Miss. Code Ann. § 63-

11-41 (1972) is not relevant to this case.   Again, I decline to

join in the speculation as to what circumstances, not present in

this case, might support admissibility of Moran’s refusal to

sign a consent form.

     I concur in the result.




                                 3
