United States v. Forbes

UNITED STATES, Appellant/Cross-Appellee
v.
Todd R. FORBES, Quartermaster First Class
U.S. Navy, Appellee/Cross-Appellant
No. 04-5005
Crim. App. No. 9901454
United States Court of Appeals for the Armed Forces
Argued March 2, 2005
Decided August 25, 2005
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and BAKER and ERDMANN, JJ., joined. CRAWFORD, J., filed a
dissenting opinion.
Counsel
For Appellee/Cross-Appellant: John B. Wells, Esq., (argued);
Captain Richard A. Viczorek, USMCR (on brief).
For Appellant/Cross-Appellee: Lieutenant Kathleen A. Helmann,
JAGC, USNR (argued); Lieutenant Colonel William K. Lietzau, USMC
(on brief).
Military Judge: G. E. Champagne
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Forbes, No. 04-5005/NA
Judge EFFRON delivered the opinion of the Court.
At a general court-martial composed of officer and enlisted
members, Appellee/Cross-Appellant (Appellee) was convicted,
contrary to his pleas, of rape, violating a lawful order (three
specifications), non-forcible sodomy, adultery (two
specifications), indecent assault (two specifications),
communicating indecent language (three specifications), impeding
an investigation (three specifications), and furnishing alcohol
to minors (two specifications), in violation of Articles 92,
120, 125, and 134, Uniform Code of Military Justice (UCMJ), 10
U.S.C. §§ 892, 920, 925, and 934 (2000), respectively. The
adjudged sentence included a dishonorable discharge, confinement
for a period of fifteen years, forfeiture of all pay and
allowances, and reduction in pay grade to E-1.
The convening authority approved the sentence, suspended
execution of the adjudged forfeitures, and waived execution of
automatic forfeitures for a period of six months under Article
58b, UCMJ, 10 U.S.C. § 858b (2000), with provision for payment
of the suspended and waived forfeitures to Appellee’s wife for
the benefit of his wife and son. The Navy-Marine Corps Court of
Criminal Appeals set aside the findings and sentence in a
published opinion, United States v. Forbes, 59 M.J. 934 (N-M.
Ct. Crim. App. 2004) (en banc).
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The Judge Advocate General of the Navy certified the case to
this Court for review of the following issues:
I. WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THE MILITARY JUDGE
COMMITTED REVERSIBLE ERROR BY GIVING THE STANDARD
INSTRUCTION ON APPELLEE’S SILENCE OVER APPELLEE’S
OBJECTION WHEN THE MILITARY JUDGE BELIEVED THE
INSTRUCTION WAS NECESSARY TO PREVENT THE MEMBERS
FROM QUESTIONING APPELLEE’S SILENCE AND HOLDING
IT AGAINST HIM.
II. SHOULD THE COURT FIND THE MILITARY JUDGE DID ERR,
WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED WHEN IT HELD THERE WAS PRESUMPTION
OF PREJUDICE FOR THIS INSTRUCTIONAL ERROR,
REQUIRING AUTOMATIC REVERSAL UNLESS THE
GOVERNMENT REBUTS THE PRESUMPTION BY A
PREPONDERANCE OF THE EVIDENCE.
On Appellee’s cross-petition, we granted review of the following
modified issue:
WHETHER THE COURT OF CRIMINAL APPEALS ERRED IN
ADDRESSING THE ISSUE OF FACTUAL AND LEGAL
SUFFICIENCY OF THE EVIDENCE IN LIGHT OF ITS
DECISION TO REVERSE ON AN INSTRUCTIONAL ERROR TO
MEMBERS.
The Court of Criminal Appeals concluded that the military
judge erred in giving an instruction, over defense counsel’s
objection, regarding Appellee’s silence. Forbes, 59 M.J. at
940. The court determined that the error was prejudicial,
applying a presumption of prejudice under the circumstances of
the case. Id. at 941-42. In addition, the court addressed the
issues of factual and legal sufficiency. Id. at 935-36. For
the reasons set forth below, we answer the certified and granted
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United States v. Forbes, No. 04-5005/NA
issues in the negative, and affirm the decision of the Court of
Criminal Appeals.
I. INSTRUCTIONAL ISSUES
A. THE RULE GOVERNING INSTRUCTIONS
WHEN AN ACCUSED DOES NOT TESTIFY AT TRIAL
The Manual for Courts-Martial contains an express rule
governing the right of the defense to request or preclude an
instruction when the accused does not testify at trial:
When the accused does not testify at trial, defense
counsel may request that the members of the court be
instructed to disregard that fact and not to draw any
adverse inference from it. Defense counsel may
request that the members not be so instructed.
Defense counsel’s election shall be binding upon the
military judge except that the military judge may give
the instruction when the instruction is necessary in
the interests of justice.
Military Rule of Evidence (M.R.E.) 301(g), included in Manual
for Courts-Martial, United States (2002 ed.) (2002 MCM), pt.
III. Under the rule, the accused in a court-martial has the
absolute right to this protective instruction upon request by
defense counsel. If the defense counsel requests that the
members not receive such an instruction, that request is
“binding” upon the military judge, subject only to the military
judge’s determination that the instruction is “necessary in the
interests of justice.”
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United States v. Forbes, No. 04-5005/NA
M.R.E. 301(g) was promulgated in the aftermath of the
Supreme Court’s decision in Lakeside v. Oregon, 435 U.S. 333
(1978). See 2002 MCM Analysis of the Military Rules of Evidence
A22-7 [hereinafter Drafter’s Analysis]. The Drafter’s Analysis
offers the following observation concerning Lakeside:
Although the Supreme Court has held that it is not
unconstitutional for a judge to instruct a jury over
the objection of the accused to disregard the
accused’s silence, it has also stated: “It may be wise
for a trial judge not to give such a cautionary
instruction over a defendant’s objection.”
Drafter’s Analysis at A22-7 (quoting Lakeside, 435 U.S. at 340-
41). The Drafter’s Analysis then explains the rationale for
including the rule in the MCM:
Rule 301(g) recognizes that the decision to ask for a
cautionary instruction is one of great tactical
importance for the defense and generally leaves that
decision solely within the hands of the defense.
Although the military judge may give the instruction
when it is necessary in the interests of justice, the
intent of the Committee is to leave the decision in
the hands of the defense in all but the most unusual
cases.
Drafter’s Analysis at A22-7. The rule reflects the President’s
authority to grant members of the armed forces rights more
protective than those required by the Constitution. See United
States v. Lopez, 35 M.J. 35, 39 (C.M.A. 1992).
B. PROCEEDINGS AT TRIAL AND ON APPEAL
At the close of the case on the merits, the military judge
conducted a session under Article 39(a), UCMJ, 10 U.S.C. § 839
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United States v. Forbes, No. 04-5005/NA
(2000), to discuss proposed instructions with counsel. The
military judge stated that he intended to give “[t]he
instruction on the accused’s silence.” He then quoted the
proposed instruction: “The accused has an absolute right to
remain silent. You are not to draw any inference adverse to the
accused.” Defense counsel objected to the proposed instruction,
which led to the following colloquy:
MJ: You object to it? Well, I will have to consider
that. That is a standard instruction. Normally it is
given and its intent -- my intent is to protect the
accused from any adverse feelings by the members. I
know it calls attention to it, and that is probably
your objection to it. I understand. Do you want to
be heard further?
ADC: No, sir.
MJ: Let me think about that one.
After a short recess, the military judge reconvened the
Article 39(a) session and returned to the proposed instruction:
MJ: There were two issues outstanding, one was
whether I would give the instruction on the accused’s
silence. I feel that that is necessary to give unless
the defense has case law to cite for the proposition
that I shouldn’t give it even though the defense
objects.
ADC: You feel it’s necessary?
MJ: I do feel it’s necessary.
ADC: We would object to giving them that instruction.
MJ: Do you have any case law to support the
proposition it’s not to be given over defense
objection?
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United States v. Forbes, No. 04-5005/NA
ADC: No, sir. Other courts have argued in the
military -- have objected --
MJ: No case law?
ADC: No, sir.
MJ: I just think it’s important to tell the members
that so they don’t go back and ask the question about
why the accused didn’t testify. That’s my thought --
and also instruct them that they are not to hold that
against the accused in any way.
ADC: Yes, sir.
After another brief recess, the military judge noted for
the record that the defense had made a request during the recess
concerning the sequence of the proposed instruction. The
military judge stated that the defense had requested, and he had
agreed, to not give the disputed instruction as the last
instruction, but instead to give it before instructing the
members on findings by exceptions. The trial counsel did not
object to the proposed sequence.
Despite this assurance, the disputed instruction was the
last instruction provided to the members by the military judge.
When the members then left the courtroom for a brief recess
prior to closing arguments, the military judge recognized his
misstep regarding the sequence of instructions: “Counsel, I
apologize. It was an oversight on my part.”
After announcement of the findings, defense counsel moved
for a mistrial citing several issues, including the content and
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United States v. Forbes, No. 04-5005/NA
timing of the disputed instruction. The military judge denied
the motion, adding: “There was error, my error, that I had
agreed to give the accused’s silence instruction other than the
last instruction in my substantive instructions. However, I
don’t think that that was an error of such a grave nature to
warrant the extraordinary remedy of a mistrial.”
In the Court of Criminal Appeals, Appellee contended that
the military judge had erred in giving the failure-to-testify
instruction over his objection. The court, in an en banc
decision, concluded that the military judge erred, and that the
error was prejudicial. Forbes, 59 M.J. at 942. One judge
concluded that the military judge erred in giving instruction
over defense objection, but that the error was not prejudicial.
Id. at 943-44 (Ritter, J., concurring in part and dissenting in
part). Another judge concluded that there was no error. Id. at
945-47 (Villemez, J., concurring in part and dissenting in
part).
C. DISCUSSION
1. Standard of review
We consider allegations of error involving mandatory
instructions under a de novo standard of review. See United
States v. Smith, 50 M.J. 451, 455 (C.A.A.F. 1999).
We review issues concerning non-mandatory instructions for an
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United States v. Forbes, No. 04-5005/NA
abuse of discretion. United States v. Damatta-Olivera, 37 M.J.
474, 478 (C.M.A. 1993).
The court below noted that because M.R.E. 301(g) requires a
balancing of both mandatory and non-mandatory components, the
standard of review should take into account the specific
attributes of the rule. Forbes, 59 M.J. at 939. The court
noted that when there is a defense objection to the instruction,
a military judge is bound by the defense election unless the
judge performs a balancing test that weighs the defense concerns
against the case-specific interests of justice. Id. In that
context, the court concluded the most appropriate analogy could
be found in the standard for reviewing a military judge’s
application of the balancing test under M.R.E. 403 (exclusion of
relevant evidence on the grounds of prejudice, confusion, or
waste of time). See Forbes, 59 M.J. at 939 (citing United
States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000)). Applying
that standard, the court offered the following approach to the
standard of review:
[W]hen a military judge gives a fail-to-testify
instruction over defense objection after having
identified the case-specific “interests of justice”
that support his decision and articulating his
analysis of those interests relative to the defense
election, then he should be accorded great deference
under a standard of review of abuse of discretion. If
he identifies the interests of justice in question but
does not articulate his balancing of those interests
with the defense election, he is accorded less
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United States v. Forbes, No. 04-5005/NA
deference. If he does not identify interests of
justice at all, the standard of review is de novo.
Forbes, 59 M.J. at 939. The court also observed that a military
judge’s decision to override the otherwise binding election of
the defense must be based on something more than a generalized
“fear that the members would hold the appellant’s silence
against him” because “such a fear could be argued in every case
of silence of the accused.” Id. at 939-40. The court then
noted that the military judge did not identify the specific
interests of justice at stake in the present case. In that
context, the court concluded that the decision was subject to de
novo review. We agree with the court below that the standard of
review for issues under M.R.E. 403 provides an appropriate
analogy. We adopt the framework articulated by the court, both
in terms of the general approach to the standard of review, and
the application of that approach to the present case.
2. Review of military judge’s decision to override the
defense election
The court below reviewed the record and concluded that the
military judge did not consider any case-specific interests of
justice before overriding the defense election. Forbes, 59 M.J.
at 939. The court concluded: “Based on our review of the
record, we find that the only reason the military judge gave the
instruction was his fear that the members would hold the
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United States v. Forbes, No. 04-5005/NA
appellant’s silence against him, unless specifically instructed
not to do so.” Id. The court added:
The military judge’s failure to articulate any
“interests of justice,” other than the standard fear
of member misuse of the appellant’s silence, indicates
that such “interests of justice” simply did not exist.
The standard fear that members might hold an accused’s
silence against him has already been accounted for by
the President and resolved by giving the election to
the defense team, where we think it rightfully
belongs. In the words of the Analysis to Mil.R.Evid.
301(g), we do not think that this is one of those
“most unusual cases” that warranted giving the
instruction over defense objection.
Id. at 940.
The Government’s brief offers a number of theories as to
why the military judge might have concluded that his evaluation
of the interests of justice should prevail over the defense
election in the present case, including the seriousness of the
charges of sexual misconduct; the similar factual scenario
surrounding each of the charges; the testimony of the alleged
victims identifying Appellee as the perpetrator and as the only
other witness to the events; and the likelihood that the members
would expect rebuttal testimony from a person of his status as
married enlisted person with eighteen years of service. None of
these theories identifies anything unusual that would
differentiate this court-martial from other cases involving mid-
level noncommissioned officers charged with sexual misconduct in
which the defense might prefer not to have the accused’s silence
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United States v. Forbes, No. 04-5005/NA
specifically called to the attention of the members. The
Government’s brief merely notes factors that, in any particular
case, might weigh in defense counsel’s exercise of tactical or
strategic judgment about how best to conduct the defense. The
President, in Rule for Courts-Martial 310(g) has determined that
this decision should be left to the defense except in an unusual
case. A generalized fear that the panel will misuse an
accused’s silence, by itself, does not provide a basis for
concluding that the circumstances of a case are so unusual as to
warrant rejection of a defense objection to the instruction. We
have conducted our own de novo review of the record to determine
whether there were any unusual circumstances in the present case
so obvious that it was not necessary for the military judge to
articulate reasons for providing the instruction over defense
objection. We agree with the observations of the court below
that such circumstances “simply did not exist” in the specific
factual setting of the present case. See Forbes, 59 M.J. at
940.
3. The assessment of prejudice
The court below also addressed the standard for determining
when an erroneous decision to override a defense election was
prejudicial. The defense, focusing on the impact on the
individual’s self-incrimination rights under the Fifth
Amendment, suggested that the Government was required to prove
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United States v. Forbes, No. 04-5005/NA
beyond a reasonable doubt that the error was harmless, while the
Government contended that the accused was responsible for
demonstrating material prejudice. See id. at 940. The court
rejected the defense standard because the Supreme Court in
Lakeside already had treated the issue as nonconstitutional, and
it also rejected the Government’s approach on the grounds that
the “plain language of the rule, coupled with the strong
language in the Analysis” made it inappropriate to place any
burden on Appellee to show prejudice from a violation of this
uniquely “defense-friendly” rule. Id. at 941.
Taking a “middle ground” between these positions, the Court
of Criminal Appeals concluded:
[W]hen a military judge commits error by giving this
instruction over defense objection in the absence of
articulated case-specific interests of justice, a
presumption of prejudice results. The Government then
bears the burden of showing by a preponderance of the
evidence why the appellant was not prejudiced by the
instruction. Admittedly, this may be a difficult
burden for the Government to bear. But, this court
did not write the Rule, and on the issue of an
appropriate test for prejudice, we feel compelled to
take our cues from the President’s language that so
clearly favors the military accused.
Id.
In deciding that the Government did not carry its burden of
rebutting the presumption of prejudice, the court emphasized two
considerations. First, with respect to the Government’s
reliance on the strength of the prosecution case, the court
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United States v. Forbes, No. 04-5005/NA
noted that the prosecution’s evidence, while strong, was not
dispositive of the factual and legal issues of guilt. Even in
the face of a formidable prosecution case, the members could
have found reasonable doubt on one or more of the charges in
light of the defense’s twenty-two witnesses, two stipulations of
expected testimony, a stipulation of fact, and several other
exhibits. The court also pointed out that the defense offered
serious and repeated objections to the instruction, then
attempted to ensure that it was not the last instruction, and
finally moved for a mistrial. The court concluded that these
efforts demonstrate that, in the present case, it was “manifest
that, for the defense team, the instruction was a potential
show-stopper.” Id. at 941-42.
The test for prejudice articulated by the court below
represents a well-reasoned approach in light of the specific
requirements of M.R.E. 301(g). We adopt this approach, and
agree with the lower court’s application of the test to the
present case.
II. THE DISCUSSION OF LEGAL AND FACTUAL SUFFICIENCY IN THE
OPINION OF THE COURT OF CRIMINAL APPEALS
Under Article 66(c), UCMJ, the Court of Criminal Appeals:
may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as it
finds correct in law and fact and determines, on the
basis of the entire record, should be approved. In
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United States v. Forbes, No. 04-5005/NA
considering the record, it may weigh the evidence,
judge the credibility of witnesses, and determine
controverted questions of fact, recognizing that the
trial court saw and heard the witnesses.
10 U.S.C. § 866(c)(2000). Article 66(c) charges the Court
of Criminal Appeals with reviewing both the legal
correctness of the trial-level proceedings and the legal
and factual sufficiency of the evidence to support the
findings of guilty, as well as the appropriateness of the
approved sentence.
In its opinion in the present case, the Court of Criminal
Appeals addressed the state of the evidence prior to discussing
the instructional issue. After discussing Article 66(c) and
applicable precedent, the court offered the following brief
assessment as to factual sufficiency:
We conclude that a reasonable factfinder could
properly have found, beyond a reasonable doubt, that
the appellant committed each of the offenses of which
he stands convicted. Moreover, after careful
consideration, we are convinced beyond a reasonable
doubt that the appellant committed each of those same
offenses.
Forbes, 59 M.J. at 936.
Appellee contends that the lower court erred by evaluating
the legal and factual sufficiency of the evidence of guilt in
light of its subsequent resolution of the appeal on the
instructional issue. We disagree. While there may be good
reasons in a particular case for an intermediate appellate court
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United States v. Forbes, No. 04-5005/NA
to focus only on case-dispositive issues, the court is not
precluded from offering alternative holdings. In the present
case, for example, the court below might have wanted this Court
to know that it had performed its responsibility under Article
66(c) to weigh the legal and factual sufficiency of the evidence
in the event we were to disagree with its decision on the
instructional issue. In the present case, by affirming the
decision of the court below on the instructional issue, our
decision will result in setting aside the findings and sentence.
Once the findings are set aside, the views of the court below on
the sufficiency of the evidence with respect to those findings
are irrelevant to any further proceeding. If, after a
rehearing, there is a conviction that is reviewed by the court
below, the court will be obligated to conduct a de novo review
under Article 66(c) based upon the record of the rehearing, not
the record of the proceedings which resulted in the findings
being set aside.
III. CONCLUSION
The certified questions and the granted issue are answered
in the negative. The decision of the United States Navy-Marine
Corps Court of Criminal Appeals setting aside the findings and
the sentence is affirmed. A rehearing may be ordered in
accordance with decision of the Court of Criminal Appeals.
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CRAWFORD, Judge (dissenting):
I respectfully dissent from (1) the extensive rulemaking by
the majority, and (2) the majority’s failure to analyze the
harmless error rule in the context of this case. Article 59(a),
Uniform Code of Military Justice, (UCMJ), 10 U.S.C. § 859(a)
(2000). I agree with Judge Learned Hand that “[i]t would be
strange indeed to conclude that this cautionary instruction
violates the very constitutional provision it is intended to
protect.” Lakeside v. Oregon, 435 U.S. 333, 339 (1978).
Dissatisfied with Military Rule of Evidence (M.R.E.)
301(g), the majority today amends that rule. Among today’s
innovations to M.R.E. 301(g) are: (1) a new “presumption of
prejudice” for violations of the rule, (2) a requirement that
military judges identify “case-specific” interests of justice --
other than “the generalized fear that the panel” would hold the
appellant’s silence against him; (3) a special test, borrowed by
“analogy” to M.R.E. 403, balancing these interests of justice
with “the defense election;” and (4) an elaborate tripartite
standard of review, including a new “middle ground” that applies
when condition (2) above is satisfied, but (3) is not. Seldom
has this Court engaged in so much rulemaking in a single case.
United States v. Forbes, No. 04-5005/NA
Background
The Supreme Court has described the “constitutional
foundation” underlying the Fifth Amendment privilege against
self-incrimination as:
[T]the respect a government -- state or federal --
must accord to the dignity and integrity of its
citizens. To maintain a “fair state-individual
balance,” to require the government “to shoulder the
entire load,” . . . to respect the inviolability of
the human personality, our accusatory system of
criminal justice demands that the government seeking
to punish an individual produce the evidence against
him by its own independent labors, rather than by the
cruel, simple expedient of compelling it from his own
mouth.
Miranda v. Arizona, 384 U.S. 436, 460 (1966) (citation omitted).
In the military justice system, Article 31, UCMJ, 10 U.S.C.
§ 831, serves the same purpose: Congress intended that article
“to secure to persons subject to the Code the same rights
secured to those of the civilian community under the Fifth
Amendment to the Constitution of the United States –- no more
and no less.” United States v. Armstrong, 9 M.J. 374, 380
(C.M.A. 1980) (citing United States v. Eggers, 3 C.M.A. 191, 195
11 C.M.R. 191, 195 (1953)).
To the extent the Fifth Amendment and Article 31 are given
effect by M.R.E. 301(g), the “primary purposes” of the right
against self-incrimination are: “[1] to shield the individual’s
thought processes from Government inquiry and [2] to permit an
individual to refuse to create evidence to be used against him.”
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Manual for Courts-Martial, United States (2002 ed.) (MCM),
Analysis of the Military Rules of Evidence A22-5 [hereinafter
Drafter’s Analysis].
Clearly, this case does not present such threats as were
envisioned by the drafters of the Fifth Amendment or the
Military Rules of Evidence. The Government has not sought by
any expedient to compel Appellee/Cross-Appellant’s (Appellee’s)
testimony, nor in any sense required him to create inculpatory
evidence.1 On the contrary, the military judge with obvious
deliberation determined that it was necessary to instruct the
panel (albeit against Appellee’s wishes) in order to safeguard
his constitutional rights. Where a judge gives a correct
instruction, upon determining that the interests of justice so
require, it is error to find prejudice.
Furthermore, because the Manual for Courts-Martial nowhere
requires military judges to jump through the hoops erected by
the majority’s opinion, I would resolve this case by looking to
the plain wording of M.R.E. 301(g) and the test for prejudice in
Article 59(a).
1
Nor is it reasonable to conclude that the prospect of a
cautionary instruction would itself “compel” an accused to self-
incriminate at trial. See Bordenkircher v. Hayes, 434 U.S. 357,
363-65 (1978) (in pursuing plea bargain, prosecutor did not
exceed constitutional bounds), Miranda, 384 U.S. at 460.
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Constitutional Concerns
Appellant’s allegation of constitutional error is correctly
resolved by reference to Lakeside. In that decision, the
Supreme Court sided with the federal courts that had “generally
held that giving the protective instruction over the defendant’s
objection is not a constitutional violation.” Id. at 336 n.3
While Lakeside expressly addressed only the Fifth Amendment
privilege against self-incrimination and the Sixth Amendment
right to counsel, I agree with the Court of Criminal Appeals
(CCA) that the court implicitly rejected any due process
argument by declining to address it. United States v. Forbes,
59 M.J. 934, 940-41 (N-M. Ct. Crim. App. 2004).
Without the looming threat of constitutional error, the
states have been free to adopt different approaches to the
present issue. Notably, the Supreme Judicial Court of
Massachusetts recently joined what it concluded was a trend
towards allowing judges to give the instruction over a
defendant’s objection: “‘Most courts . . . [view] the giving of
such an instruction over objection as not prejudicial error.’
Our [prior contrary] rule is one that has been soundly
criticized . . . and ‘carries the doctrine of self-
incrimination to an absurdity.’” Commonwealth v. Rivera, 805
N.E.2d 942, 952-53 (Mass. 2004) (citations omitted) (emphasis
added). Evocative of the Drafter’s Analysis of Rule 301(g), the
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Rivera court held, “judges should not give the instruction when
asked not to do so. We are merely saying that it is [no longer]
per se reversible error to do so.” Id. at 953 n.9
Military Rule of Evidence 301(g)
Like the individual states, the military system has its own
rule. Ours was prescribed by the President in the Manual for
Courts-Martial, and establishes both the affirmative duty and
discretionary authority of trial judges to instruct on an
accused’s right not to testify. Specifically, before a military
judge may instruct over a defense objection, M.R.E. 301(g)
requires either (1) a necessity “in the interests of justice,”
or (2) a “most unusual” case. Drafter’s Analysis at A22-7.
Against these bare requirements, the CCA’s ornamentation of the
rule -– of which the majority is so enamored -- puts us in the
shoes of legislators and is unfaithful to its text. The text of
Rule 301(g) (i.e., the pre-Forbes version appearing in the MCM)
provides:
When the accused does not testify at trial, defense
counsel may request that the members of the court be
instructed to disregard that fact and not to draw any
adverse inference from it. Defense counsel may
request that the members not be so instructed.
Defense counsel’s election shall be binding upon the
military judge except that the military judge may give
the instruction when the instruction is necessary in
the interests of justice.
M.R.E. 301(g) (emphasis added). The Drafter’s Analysis notes:
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United States v. Forbes, No. 04-5005/NA
[C]ounsel for the defense may determine that this very
instruction may emphasize the accused’s silence,
creating a prejudicial effect. Although the Supreme
Court has held that it is not unconstitutional for a
judge to instruct a jury over the objection of the
accused to disregard the accused’s silence, it has
also stated: “It may be wise for a trial judge not to
give such a cautionary instruction over a defendant’s
objection.” Rule 301(g) recognizes that the decision
to ask for a cautionary instruction is one of great
tactical importance for the defense and generally
leaves that decision solely within the hands of the
defense. Although the military judge may give the
instruction when it is necessary in the interests of
justice, the intent of the Committee is to leave the
decision in the hands of the defense in all but the
most unusual cases.
Drafter’s Analysis at A22-7. (citations omitted) (emphasis
added).
Case-Specific Interests of Justice
Plainly (and I must therefore assume deliberately) absent
from the text of M.R.E. 301(g) and the Drafter’s Analysis is the
majority’s new requirement that a military judge make “case-
specific” factual findings on the record. Until such a
requirement is placed in M.R.E. 301(g) by someone with the
authority to do so, it has no place in an opinion of this Court.
Indeed, when the President has desired to impose such a
requirement, he has done so expressly. For example, Rule for
Courts-Martial (R.C.M.) 905(d), M.R.E. 304(d)(4), M.R.E.
311(d)(4), and M.R.E. 321(f) each provides, “Where factual
issues are involved in determining a motion, the military judge
shall state the essential findings on the record.” With those
6
United States v. Forbes, No. 04-5005/NA
rules, a failure to make factual findings is error, not because
this Court wishes it so, but because the rules make it so. In
the present case, the military judge satisfied M.R.E. 301(g) by
twice stating on the record that he thought the instruction on
Appellee’s silence was “necessary.”
MJ: I feel that it is necessary to give [the
instruction] unless the defense has case law to cite
for the proposition that I shouldn’t give it even
though the defense objects.
ADC: You feel it’s necessary?
MJ: I do feel it’s necessary . . . . I just think
it’s important to tell the members that so they don’t
go back and ask the question about why the accused
didn’t testify. That’s my thought -- and also
instruct them that they are not to hold that against
the accused in any way.
This is all M.R.E. 301(g) requires, and it is not for this Court
to second-guess the circumstances of trial, or the apparent
necessity of a cautionary instruction.
Indeed, the majority’s ex-post facto rulemaking on this
point affects an end run around the longstanding principle that
military judges -- not appellate courts -– are better placed to
perceive and respond to the exigencies of trial. See, e.g.,
United States v. Ovando-Moran, 48 M.J. 300, 304 (C.A.A.F. 1998)
(“The military judge was in the best position to evaluate [the
member’s] responses [during voir dire] and determine whether he
was capable of following the judge’s instructions.”). Here,
Appellee faced very serious charges of rape, sodomy, adultery,
7
United States v. Forbes, No. 04-5005/NA
and obstruction of justice (“sexual misconduct” in the view of
the majority) in connection with three young female recruits who
were less than half his age. That the military judge was
concerned that prejudice would result from Appellee’s decision
not to testify is clear on the record. The military judge’s
hesitancy about not giving the instruction (he recessed twice
before ruling) was palpable, and evinces a thoughtful decision.
I am not prepared to substitute my judgment for that of the
trial judge.
Apart from lacking a legitimate basis in the rule, the
majority’s requirement for “case specific interests of justice”
draws an untenable distinction between what I understand to be
“generalized” interests of justice (i.e., interests rooted in
the “standard” fear “that the members would hold the appellant’s
silence against him,”) and specialized or “unusual” interests of
justice (presumably rooted in some other brand of fear). The
majority regards interests of the second sort as more legitimate
and more deserving of a fail-to-testify instruction. United
States v. Forbes, 61 M.J. __ (11). This distinction, however,
fails to perceive what I think the military judge perceived:
that the circumstances of Appellee’s trial required an effective
defense strategy or, that failing, the protective vigilance of a
trial judge. I assume the trial judge was aware that this Court
has not been reluctant to impose a duty on military judges to
8
United States v. Forbes, No. 04-5005/NA
ensure the protection of individual rights. United States v.
Collins, 60 M.J. 261 (C.A.A.F. 2004) (when the only member to a
sanity board convened under R.C.M. 706 appears to change his
mind, the military judge abuses his discretion in not ordering
any further inquiry into the accused’s mental responsibility);
United States v. Grigoruk, 52 M.J. 312 (C.A.A.F. 2000)
(Obligation placed on trial judge. When the defense fails to
call Dr. Underwager, an approved defense expert, the military
judge must make an inquiry on the record or an inquiry must be
ordered through a hearing under United States v. Dubay, 17
C.M.A. 147, 37 C.M.R. 411 (1967)); United States v. Clark, 49
M.J. 98 (C.A.A.F. 1998) (holding that there was error by the
defense in failing to call reconstruction expert who had
previously been hired by the defense).
Harmless Nonconstitutional Error
Assuming, arguendo, that giving the cautionary instruction
was somehow error, this case, in any event, would present only
“a violation of a Manual provision promulgated by the President
to ensure a military accused a fair trial.” United States v.
Rush, 54 M.J. 313, 315 (C.A.A.F. 2001) (employing Article 59(a)
after failing to find constitutional error). Thus, Appellee can
succeed only by demonstrating that the error substantially
influenced the findings, or if this Court is otherwise “left in
grave doubt” as to his convictions. See, e.g., United States v.
9
United States v. Forbes, No. 04-5005/NA
Armstrong, 53 M.J. 76, 81 (C.A.A.F. 2000) (citing Kotteakos v.
United States, 328 U.S. 750 (1946); United States v. Adams, 44
M.J. 251, 252 (C.A.A.F. 1996)).2
Article 59(a) applies to all nonconstitutional errors,
notwithstanding the majority’s exemption by fiat for “defense-
friendly” rules. 61 M.J. __ (13). Regardless of whether the
CCA’s new test for prejudice is “well-reasoned,” it has no basis
in the MCM, and the majority errs in adopting it today.
Employing the appropriate test for prejudice, the record in this
case satisfies me that the conviction below may stand.3
Particularly detrimental to Appellee’s allegations of
prejudice are the members’ prior exposure in voir dire to the
instruction later complained of, and the strength of the
Government’s case. Against the backdrop of the comprehensive
reasonable doubt instructions given at the end of the trial,
2
See also Rivera, 805 N.E.2d at 953 (“If the instruction is
given over defendant’s objection, a liberal harmless error rule
would still seem warranted.”) (citing Green, The Failure to
Testify Instruction, 14 Willamette L. J. 43, 52 (1977)).
3
The CCA went outside Article 59(a) to find prejudice below.
After determining M.R.E. 301(g) to be “a defense-friendly rule,”
the CCA presumed prejudice to the defendant, and required the
Government to prove otherwise by a preponderance of the
evidence. Forbes 59 M.J. at 941. The Navy-Marine Court’s self-
described “new test for prejudice,” of which the CCA
acknowledges the Government “was not aware,” represents a
departure from our standard analysis under Article 59(a), and is
itself error. Id.
10
United States v. Forbes, No. 04-5005/NA
Appellee has not established any material prejudice to his
substantial rights.
Voir Dire Instruction
The cautionary instruction, as given at the end of trial,
was not novel to the members’ ears, but mirrored a prior
instruction given to them during voir dire.4 The instruction
complained of reads as follows:
The accused has an absolute right to remain silent.
You will not draw any inference adverse to the accused
by the fact that he did not testify as a witness. The
fact that the accused has not testified must be
disregarded by you.
During voir dire, and without objection from the
defense, the military judge had earlier alerted the members:
You may expect or desire the accused to testify. The
accused has an absolute right not to testify. The
fact that an accused may elect not to testify in his
own behalf may not be considered adverse to the
accused in any way. . . . Is there any court member
who cannot follow this instruction?
The military judge recorded a negative response from all
members. Thus, where the members indicated they could follow
the law as given to them by the military judge, I find no reason
to conclude otherwise. See United States v. Thompkins, 58 M.J.
43, 47 (C.A.A.F. 2003) (“absent evidence to the contrary, court
members are presumed to comply with the military judge's
4
Voir dire occurred on August 17, 1998. The instructions were
read to the members on August 22, 1989.
11
United States v. Forbes, No. 04-5005/NA
instructions.”); Lakeside, 435 U.S. at 340 n.10-11
(characterizing as “dubious,” “doubtful,” and “speculative” the
suggestion that a jury would disregard such an inference
instruction); United States v. Youngblood, 47 M.J. 338 (C.A.A.F.
1997) (military panels are often called “blue ribbon” panels due
to the quality of the members). The risk that second
instruction prejudicially “emphasized” Appellee’s silence is
therefore inconsequential.5
The Strength of Government’s Case
The final indicium of harmlessness in this case is the
strength of the evidence against Appellee. Four complaining
witnesses -- each about half Appellee’s age -- testified against
him. Two witnesses providing strikingly similar testimony about
Appellant’s modus operandi of driving to remote areas with
female Navy recruits before assaulting them.6 The defense case
was weak by comparison: Appellant’s strategy at trial was
limited to impeaching the credibility of the alleged victims,
whose testimony otherwise went unchallenged. In light of the
imbalance on the merits, any error by the military judge was
5
See Ovando-Moran, 48 M.J. at 302-04. There, a member indicated
during voir dire that he would regard the accused’s silence at
trial to be “unnatural.” When, in response to further
questioning, the member responded that he would not draw any
adverse inference from the accused’s silence, the military judge
denied a defense challenge for cause. This Court affirmed.
6
See Testimony of CF (R. 519-26); Testimony of JB (R. 738-60).
12
United States v. Forbes, No. 04-5005/NA
unlikely to have substantially influenced the findings, and was
therefore harmless under Article 59(a).
Conclusion
While I agree with Judge Learned Hand that when an accused
asserts his privilege against self-incrimination, it may
sometimes be “better . . . for the trial judge to say nothing
about it,” I likewise agree with Judge Hand that, “to say that
when he does, it is error, carries the doctrine of self-
incrimination to an absurdity.” 435 U.S. at 341 n.12 (quoting
Becher v. United States, 5 F.2d 45, 49 (2d Cir. 1924)). For
these reasons, I respectfully dissent.
13