                          UNITED STATES, Appellee


                                        v.


                  Daniel R. DEWRELL, Master Sergeant
                            U.S. Air Force


                                  No. 00-0203

                            Crim. App. No. 33085


       United States Court of Appeals for the Armed Forces

                       Argued November 8, 2000

                       Decided June 13, 2001

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

                                    Counsel

For Appellant: Gayleen McCallum (argued); Lieutenant Colonel
James R. Wise, Lieutenant Colonel Timothy W. Murphy, and Captain
Natasha V. Wrobel (on brief); Major Maria A. Fried.


For Appellee: Captain Peter J. Camp (argued); Colonel
Anthony P. Dattilo and Lieutenant Colonel Ronald A. Rodgers
(on brief); Major Lance B. Sigmon.

Military Judge:     James A. Young, III

     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Dewrell, No. 00-0203/AF

     Chief Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, appellant was convicted by a general

court-martial composed of officer members of committing an

indecent act on A, a female less than 16 years of age, in

violation of Article 134, Uniform Code of Military Justice, 10

USC § 934.   Appellant was acquitted of raping J, a female less

than 16 years of age.    While reducing the forfeitures, the

convening authority approved the sentence of a dishonorable

discharge, 7 years’ confinement, and reduction to the lowest

enlisted grade.    The Court of Criminal Appeals affirmed the

findings and sentence.    52 MJ 601 (1999).   We granted review of

the following issues:

     I. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
     COUNSEL GUARANTEED BY THE 6TH AMENDMENT OF THE CONSTITUTION.

     II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION BY
     REFUSING TO ALLOW ANY DEFENSE VOIR DIRE QUESTIONS
     CONCERNING THE MEMBERS’ PRIOR INVOLVEMENT IN ANY CHILD
     ABUSE CASES AND POSSIBLE PRECONCEIVED NOTIONS REGARDING USE
     OF FORCE AND FABRICATION WHEN ALLEGATIONS OF SEXUAL
     MISCONDUCT INVOLVE TEEN AND PRETEEN AGE GIRLS.

     III. WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     TO THE SUBSTANTIAL PREJUDICE OF APPELLANT IN UPHOLDING THE
     MILITARY JUDGE’S ERRONEOUS ADMISSION OF UNCHARGED OTHER
     SEXUAL MISCONDUCT UNDER MIL.R.EVID. 404(b), 413, AND 414.

     For the reasons contained herein, we affirm the decision of

the court below.




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United States v. Dewrell, No. 00-0203/AF

                      I. STATEMENT OF THE FACTS

     Appellant is a 38-year-old, divorced Master Sergeant with

almost 19½ years of active service.     At the time of the offense,

he was assigned to Supreme Headquarters, Allied Powers, Europe

(SHAPE) in Belgium.   He became a friend of Army Specialist S,

who was also assigned to Forces command at SHAPE.     Eventually,

they began seeing each other and developed an intimate

relationship.   Specialist S had a 10-year-old daughter, A.

Appellant, Specialist S, and A frequently did things together.

On one occasion in September or October 1995, Specialist S and A

spent the night at appellant’s residence.     A slept in the

bedroom where appellant’s daughter from a previous marriage

slept when she came to visit him.     Sometime during the night,

appellant went into the bedroom in which A was sleeping.       He

placed his hands under her shirt and fondled her breasts.      He

took her hands and placed them on his penis and moved them up

and down.   Several months later, A told her mother what

appellant had done.   Specialist S reported the assault to the

Air Force Office of Special Investigations (OSI).

     While the OSI was investigating the sexual assault upon A,

it received information that appellant may have assaulted a

babysitter, J, nearly 10 years earlier, during the time he lived

in Midwest City, Oklahoma.   J stated that she had a sexual

relationship with appellant, consisting of heavy petting and


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United States v. Dewrell, No. 00-0203/AF

oral sex.    She also claimed that appellant placed her hand on

his penis and masturbated him.    When informed by the OSI that

these indecent acts could not be prosecuted because of the

statute of limitations, J stated that appellant also engaged in

sexual intercourse with her sometime between February 1 and

April 30, 1988.    She was 15 at the time.    As a result, appellant

was charged with raping J.

     At trial, the prosecution also called Army Specialist C.

Specialist C was one of appellant’s neighbors in Midwest City.

She testified that appellant sexually assaulted her on two

occasions.    Once while he was working in his garage, he pulled

his penis out of his shorts and put her hand on it and made her

masturbate him.    On another occasion, she went to appellant’s

home to borrow a cup of sugar.    He took her into the bathroom

and made her masturbate him, and rubbed her vagina with his

hands.   These incidents were also barred from prosecution by the

statute of limitations.

                             II. DISCUSSION

            A. WHETHER APPELLANT WAS DENIED
            EFFECTIVE ASSISTANCE OF COUNSEL
            GUARANTEED BY THE 6TH AMENDMENT OF THE
            CONSTITUTION.

    To establish a claim of ineffectiveness, “the defendant must

show that counsel’s performance was deficient.       This requires

showing that counsel made errors so serious that counsel was not



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United States v. Dewrell, No. 00-0203/AF

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.”    Strickland v. Washington, 466 U.S. 668, 687

(1984); see also Williams v. Taylor, 529 U.S. 362, 390 (2000).

In satisfying this burden, the “defendant must show that

counsel’s representation fell below an objective standard of

reasonableness.”    Id. at 688.   Appellant must establish that the

acts identified by him “were outside the wide range of

professionally competent assistance.”      Burger v. Kemp, 483 U.S.

776, 795 (1987), quoting Strickland, supra at 690.       That is,

counsel’s performance was unreasonable “under prevailing

professional norms ... considering all the circumstances.”

Strickland, supra at 688.

     “Judicial scrutiny of counsel’s performance must be highly

deferential.”   Id. at 689.   “[C]ounsel is strongly presumed” to

have given “adequate assistance.”      Id. at 690.   The Strickland

Court warned:   “It is all too tempting ... to second-guess” a

lawyer’s performance, and appellate courts should try to

“eliminate the distorting effects of hindsight.”       Id. at 689.

Acts or omissions that fall within a broad range of reasonable

approaches do not constitute a deficiency.      The Court in

Strickland held that “strategic choices made after thorough

investigation of law and facts relevant to plausible options are

virtually unchallengeable.”    Id. at 690.




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United States v. Dewrell, No. 00-0203/AF

     The defendant must also demonstrate that the deficient

performance prejudiced the defense.   The prejudice prong

“requires showing that counsel’s errors were so serious as to

deprive the defendant of a fair trial, a trial whose result is

unreliable.”   Id. at 687.

     In his first asserted issue, appellant claims that defense

counsel failed to attack the credibility of the government

witnesses.   Appellant suggests that his counsel did not

vigorously attack the victim, A, regarding a story she

previously made up about a kidnapping, nor did defense counsel

press A on a false statement to a friend that appellant

threatened to kill her.   To the contrary, the record of trial

shows that defense counsel did question A about these items, and

her responses showed that she was impressionable, and that maybe

some of her stories were at least partially fabricated.

Further claims by appellant as to the advanced sexual knowledge

or curiosity on the part of A are unsubstantiated.

     Appellant also claims that A’s mother’s testimony could

have been contradicted.   However, the only person that was in a

position to challenge the mother’s statement that she and

appellant had only been intimate on one occasion was appellant

himself.   Neither at trial nor during the clemency process did

he contradict A’s mother.




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United States v. Dewrell, No. 00-0203/AF

        As for Specialist C’s testimony, defense counsel argued

that her statements were inconsistent and amounted to uncharged,

prejudicial misconduct.    The military judge disagreed and

allowed Specialist C to testify, but limited her testimony.

     The court below ordered defense counsel to submit

affidavits answering a few questions, including why there was

not a more rigorous cross-examination of A.    Civilian defense

counsel (CDC) responded that he was concerned that a clumsy or

vicious cross-examination of A would be devastating to his

client, based on her videotaped deposition, as well as CDC’s

many years in criminal defense work.

     As to all of the Government’s witnesses, including A, CDC’s

affidavit explains that despite the defense’s investigation, no

evidence surfaced that would create even an inference that the

witnesses were lying or had any motivation to lie.    The record

clearly shows that the defense acted to minimize damaging

testimony.

     Appellant further contends that his defense counsel did not

do enough to limit the spillover effects of the rape testimony

of J.    However, the spillover instruction given by the military

judge was adequate and, presumably, was followed by the members.

See United States v. Holt, 33 MJ 400, 408 (CMA 1991).

        Appellant also claims that defense counsel did not inform

the members about the precise consequences of a punitive


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United States v. Dewrell, No. 00-0203/AF

discharge.   Yet the record establishes that defense counsel

informed the members a punitive discharge would “deprive him of

everything that he has worked for and everything that he has

contributed; everything that he is or thought he was.”   Based on

the nature of appellant’s felony conviction, the evidence

presented during sentencing, the military judge’s instructions,

and argument of counsel, we are convinced that the officer

members had sufficient information to understand the

ramifications associated with awarding appellant a punitive

discharge.

     Appellant argues that defense counsel failed to present a

case on his behalf during findings by not allowing him to

testify and by refusing to put forth a “good soldier” defense.

Appellant avers that he discussed the matter of testifying with

his attorney, and that they planned to make the final decision

after seeing how the case progressed.   However, according to

appellant, his attorney rested the defense case immediately

after the Government rested without further discussion with

appellant.

     Defense counsel stated in his affidavit that his client was

fully informed of his right to testify and chose to accept his

counsel’s strong recommendation that he should not take the

stand.   This was reiterated in military defense counsel’s (MDC)

affidavit.   MDC stated that appellant was advised he had the


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United States v. Dewrell, No. 00-0203/AF

final decision on testifying, and he agreed that he would not

testify.

      Appellant argues that his counsel failed to present a “good

soldier” defense during the case-in-chief.           Appellant had over

19 years of active service and worked at SHAPE Headquarters.

Upon motion, he presented affidavits to the court below from

Colonel Clark P. Wigley, Lieutenant Colonel Leonard F. Benson,

and Master Sergeant (Ret) George L. Davis.           All three of the

affiants worked with appellant at SHAPE, and all three vouched

for his competence, professionalism, and integrity.            Both

officers indicated that they would have gladly testified for

appellant at his trial.       However, CDC did not believe that a

“good soldier” defense would be very persuasive in this type of

case.   CDC was also concerned that character witnesses would

open the door for uncharged misconduct.1          Defense counsel had the

benefit and knowledge of the pretrial investigation, including

OSI reports, medical reports, and other discoverable material.

He stated that appellant understood his analysis and accepted

it.   Deciding to forgo live witnesses in order to avoid

potentially damaging evidence being brought in under cross-

examination does not amount to incompetence.


1
  Right to Counsel: En Banc Eleventh Circuit Denies Habeas to Federal Prisoner
Sentenced to Death, 67 BNA CRIM. L. REP. at 658 (Aug. 9, 2000) (“A reasonable
lawyer … could have decided that presentation of mitigation evidence would be
counterproductive because it would open the door to potentially harmful
cross-examination and nullifying rebuttal.”).


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United States v. Dewrell, No. 00-0203/AF

     We need not order a hearing pursuant to United States v.

Ginn, 47 MJ 236, 248 (1997), since these matters may be resolved

based on the “appellate filings and the record.”    47 MJ at 248.

     All parties agree that appellant's counsel advised him

against testifying.   CDC states that appellant wanted to

testify, and that it was only after a heated discussion that

appellant agreed to remain silent.    He states that when the

prosecution rested, he leaned over to appellant and appellant

"once again, confirmed that he would be taking our advice and

that he would be remaining silent."    MDC states that after the

Government rested its case, the defense "took a moment to concur

one last time that we were not putting on any further evidence."

Appellant asserts that CDC stood up immediately after the

Government rested and announced that the defense also rested.

     The record does not indicate whether a brief pause and

conference took place among appellant and his two counsel before

the defense rested.   The record does reflect, however, that

there was a 2-hour break after both sides rested, followed by a

session under Article 39(a), UCMJ, 10 USC § 839(a), on

instructions, during which there was ample opportunity for

appellant to express his desire to testify.    While appellant may

have continued to entertain the idea of testifying in spite of

his counsel's advice, there is no indication that he told his

counsel he rejected their advice. Appellant made no complaint


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United States v. Dewrell, No. 00-0203/AF

about his defense counsel in his post-trial submission to the

convening authority.    Appellant's failure to speak up at or

after trial belies his assertion that his desire to testify was

improperly cut off by his counsel.    We conclude that "the

appellate filings and the record as a whole 'compellingly

demonstrate' the improbability" of appellant's assertions.      See

Ginn, 47 MJ at 248.

     As to the abridgement of appellant’s right to testify, we

agree with the court below.    “[T]his barebones assertion by a

defendant, albeit made under oath, is insufficient to require a

hearing....    Some greater particularity is necessary -- and also

we think some substantiation is necessary, such as an affidavit

from the lawyer who allegedly forbade his client to testify --

to give the claim sufficient credibility to warrant a further

investment of judicial resources in determining the truth of the

claim....”    52 MJ at 614, quoting Underwood v. Clark, 939 F.2d

473, 475-76 (7th Cir. 1991); see also United States v. Boyd, 86

F.3d 719, 722-23 (7th Cir. 1996).

     Appellant claims similar error during the sentencing

portion of the trial.    Yet, CDC indicated that he discussed the

sentencing strategy with appellant, and this seems probable from

the record, which states:

          CIV DC: Yes, Your Honor, we have discussed
          [with] Master Sergeant Dewrell his rights to
          present evidence and to make a sworn or unsworn


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United States v. Dewrell, No. 00-0203/AF

          statement through counsel. And, in doing so, we
          have reviewed the Defense Exhibits that we have
          marked as Defense Exhibit D for identification,
          which we will be offering to the military judge.
          We have explained that the prosecution, of
          course, will be offering the enlisted personnel
          records of the accused, reflecting his entire
          service career. And, we have determined that for
          tactical reasons we will not be presenting any
          other evidence beyond that, to include the
          accused exercising his right to remain silent.

We hold that CDC’s and MDC’s tactics were well within their

discretion.   “We do not look at the success of a criminal

defense attorney’s trial theory, but rather whether counsel made

an objectively reasonable choice in strategy from the

alternatives available at the time.”   United States v. Hughes,

48 MJ 700, 718 (A.F. Ct. Crim. App. 1998), citing United States

v. Ingham, 42 MJ 218 (1995).

     Appellant has not met his burden of showing error on the

part of defense counsel.   As the first prong of Strickland was

not met, we hold that the court below correctly determined that

appellant was not denied effective assistance of counsel as

guaranteed by the Sixth Amendment.   We also hold that it did so

in compliance with this Court’s decision in Ginn.


          B. WHETHER THE MILITARY JUDGE ABUSED HIS
          DISCRETION BY REFUSING TO ALLOW ANY DEFENSE
          VOIR DIRE QUESTIONS CONCERNING THE MEMBERS’
          PRIOR INVOLVEMENT IN ANY CHILD ABUSE CASES
          AND POSSIBLE PRECONCEIVED NOTIONS REGARDING
          USE OF FORCE AND FABRICATION WHEN ALLEGATIONS
          OF SEXUAL MISCONDUCT INVOLVE TEEN AND PRETEEN
          AGE GIRLS


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United States v. Dewrell, No. 00-0203/AF



      The standard of review on this issue is an abuse of

discretion.    United States v. Belflower, 50 MJ 306, 309 (1999);

United States v. Jefferson, 44 MJ 312, 317 (1996).

      The military judge in this case did not allow either

counsel to conduct group voir dire.         Appellant argues that the

military judge abused his discretion by refusing to allow any

defense voir dire questions concerning the members’ prior

involvement in any child abuse cases and possible preconceived

notions regarding use of force and fabrication when allegations

of sexual misconduct involve teen and preteen age girls.

      Prior to trial, the military judge sent a letter to counsel

advising them to submit voir dire questions to him at least 7

days prior to trial since he would question the members.             While

both the defense and the Government submitted questions pursuant

to the military judge’s instructions, both sides stated their

objection to this procedure and their desire to question the

members personally.      However, the military judge denied both

requests.    Neither the UCMJ nor the Manual for Courts-Martial,

United States (2000 ed.), gives the defense the right to

individually question the members.         Jefferson, supra at 317-19;

RCM 912(d), Manual, supra.2


2
  The current version of this rule is identical to the one in effect at the
time of appellant’s court-martial.



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United States v. Dewrell, No. 00-0203/AF

     After the military judge questioned the members, defense

counsel specifically asked the military judge to ask them:

                              * * *

          4. Is there any member of the panel who
          has a close friend, neighbor or relative,
          (to include spouse), who works in the
          field of law enforcement, teaching,
          medicine, psychology, psychiatry, or
          social work services?;

                              * * *

          8. Is there any member of the panel who
          believes that teenage girls, solely
          because of their age, are not mentally
          capable of manifesting lack of consent
          to sexual advances?;

          9. Is there any member of the panel who
          believes that teenage girls, because of
          their age, believe that they are required
          to acquiesce to sexual advances of an
          adult because that person is an adult?;
          and

          10. Is there any member of the panel who
          believes that preteen age girls would not
          fabricate allegations of sexual misconduct?

     Trial defense counsel stated that question four was

designed to determine “whether or not any member of the panel is

close enough with someone who would be necessarily involved in

child abuse cases and who might have knowledge that would come

to bear during the course of the discussions in the jury room,”

thereby affecting his/her deliberation in the case.   Defense

counsel stated he would use this information to “intelligently

exercise our peremptory challenge.”   Defense counsel commented


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United States v. Dewrell, No. 00-0203/AF

that the purpose of questions eight and nine was to determine

whether any member believed that a teenager is not capable of

manifesting a lack of consent to sexual approaches.   He noted

that in some cases, court members believed this.   Defense

counsel urged the military judge to ask question ten because

“there are many jury members out there who believe that a pre-

teenage girl would never fabricate an allegation of sexual

misconduct.”   The military judge did not address defense

counsel’s concern but simply stated, “I believe I have

adequately covered these areas in my questions.”

     The military judge’s questions properly tested for a fair

and impartial panel and allowed counsel to intelligently

exercise challenges.   He asked about members’ family and close

friends; he asked whether any member served as a “family

advocacy team member or who works on some type of committee such

as that”; he asked whether “anyone on the panel . . . believes

that any particular person, whether they are an adult or a

minor, simply because of their status, would automatically be

telling the truth or not telling the truth”; and he asked

whether any member had any experience in legal or law

enforcement matters.   We hold that the questions asked by the

military judge were clearly adequate to cover the statutory

qualification of the members.   Thus, there was no abuse of

discretion by the military judge.


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United States v. Dewrell, No. 00-0203/AF

           C. WHETHER THE AIR FORCE COURT OF CRIMINAL
           APPEALS ERRED TO THE SUBSTANTIAL PREJUDICE
           OF APPELLANT IN UPHOLDING THE MILITARY
           JUDGE’S ERRONEOUS ADMISSION OF UNCHARGED
           OTHER SEXUAL MISCONDUCT UNDER MIL.R.EVID.
           404(b), 413, AND 414.

     Lastly, appellant contends that the court below erred in

upholding the military judge’s admission of uncharged other

sexual misconduct under Mil.R.Evid. 404(b), 413, and 414,

Manual, supra.3    We review the military judge’s ruling on the

admissibility of evidence under an abuse of discretion standard.

See United States v. Acton, 38 MJ 330, 332 (CMA 1993).

     At the beginning of the trial, defense counsel made a

motion in limine to preclude the testimony of Specialist C as

impermissible under Mil.R.Evid. 404(b). Although appellant was

not charged with any offenses relating to Specialist C, the

prosecution wanted her to testify that appellant had her

masturbate him on a couple of occasions between 1987 and 1989

when she was between 10 and 12 years of age.          The military judge

ruled that the portion of her testimony relating to the

masturbation was admissible.       He stated:

     I find that the acts of having young girls, between
     the ages of 10 and 15 - - grabbing their hands,
     putting their hands on his penis, and masturbating
     him – that evidence is of such similar nature that


3
  Mil.R.Evid. 413 and 414 did not exist at the time of appellant’s court-
martial. However, Fed.R.Evid. 413 and 414 applied, by virtue of Mil.R.Evid.
1102, and they are virtually the same as Mil.R.Evid. 413 and 414. See United
States v. Wright, 53 MJ 476, 480 n.4 (2000).



                                     16
United States v. Dewrell, No. 00-0203/AF

     I believe it is admissible under both 404(b) and
     Military Rule of Evidence 414. Now, in my balancing
     test under Military Rule of Evidence 403, I decided
     that the full scope of the testimony of Specialist [C]
     will not be admitted. In other words, the statements
     concerning trapping her in the bathroom and the other
     acts don’t go to the acts that we are talking about,
     especially with regard to [A]. Again, part of my
     reasoning here is that the prejudicial effect of that
     type of evidence would outweigh the probative value –
     substantially outweigh the probative value. However,
     on the masturbating, I think that is very probative
     and by limiting it I don’t think the prejudicial
     effect substantially outweighs the probative value.

     Although the military judge’s determination in this case

was made prior to our decision in United States v. Wright, 53 MJ

476 (2000), we note that the list of factors in Wright is

neither exclusive nor exhaustive.   The military judge’s careful

and reasoned analysis on the record satisfied the constitutional

requirement that evidence offered under Rule 413 be subjected to

a thorough balancing test pursuant to Mil.R.Evid. 403.     United

States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998); see also

United States v. Guardia, 135 F.3d 1326, 1331 (10th Cir.

1998)(Although the trial court is not required to make detailed

findings of fact under Rule 403, it is important that the court

“fully evaluate the proffered Rule 413 evidence and make a clear

record of the reasoning behind its findings.”).

     Following our decision in Wright, we hold that the military

judge properly admitted the contested testimony.   The threshold




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United States v. Dewrell, No. 00-0203/AF

findings were met under Rule 413(a)4, the evidence was found to

be relevant to the immediate charges under Mil.R.Evid. 401 and

402, and the military judge clearly found that the probative

value of specific portions of the testimony outweighed any

prejudicial effect, as required under Mil.R.Evid. 403.

We review a military judge’s evidentiary rulings for an abuse of

discretion.    However, when the judge does not articulate the

balancing analysis on the record, we give the evidentiary ruling

less deference than we do where, as in this case, the balancing

analysis is fully articulated on the record.           United States v.

Manns, 54 MJ 164, 166 (2000).

      Additionally, the military judge instructed the

members as follows:

      Each offense must stand on its own and you must keep
      the evidence of each offense separate. The burden is
      on the prosecution to prove each and every element of
      each offense beyond a reasonable doubt. As a general
      rule, proof of one offense carries with it no
      inference that the accused is guilty of any other
      offense. However, you may consider any similarities
      in the testimony of Ms. [P, A,] and Specialist [C]
      concerning masturbation with regard to the
      Specification of Charge II [rape].

(Emphasis added.)     As the members acquitted appellant of

the rape charge, this Court finds no reason to doubt that

the members followed the instructions given them.




4
  As Rules 413 and 414 are essentially the same in substance, the analysis for
proper admission of evidence under either should be the same.


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United States v. Dewrell, No. 00-0203/AF

                          III. DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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