IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Airman First Class L.R.M.

, USAF, Appellant v. Lieutenant Colonel JOSHUA E. KASTENBERG, USAF Appellee and Airman First Class Nicholas E. Daniels, USAF Real Party In Interest ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) REAL PARTY IN INTERESTS OPPOSITION TO MOTION OF PROTECT OUR DEFENDERS FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF USCA Dkt. No. 13-5006/AF Crim. App. No. 2013-05

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES:

Dwight H. Sullivan CAAF Bar No. 26867 Air Force Appellate Defense Division 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 (240)612-4773 dwight.sullivan@pentagon.af.mil Christopher D. James, Capt, USAF CAAF Bar No. 34081 Appellate Defense Counsel Appellate Defense Division 1500 W. Perimeter Road, Suite 1100 Joint Base Andrews NAF, MD 20762 (240) 612-4770 christopher.james@pentagon.af.mil Counsel for Real Party in Interest

INDEX Table of Authorities .....................................ii I. Protect Our Defenders amicus brief makes numerous erroneous assertions ..................................2

II. Protect Our Defenders amicus brief impermissibly attempts to offer purported facts from outside the record in violation of Rule 30A........................6 Conclusion.................................................10 Certificate of Filing and Service Appendix

TABLE OF AUTHORITIES Page(s) CASES Carlson and Ryan-Jones v. Smith, 43 M.J. 367 (C.A.A.F. 1995) ..................................2 Carlson and Ryan-Jones v. Smith, 43 M.J. 402 (C.A.A.F. 1995) ..................................2 Church of Scientology of California v. United States, 506 U.S. 9 (1992) ............................................4 In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559 (11th Cir. 1989) ...............................4 United States v. Abadia, 72 M.J. 91 (C.A.A.F. 2013) ..................................10 United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) ..................................3 United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006) ...................................3 United States v. Hollimon, 12 M.J. 791 (A.C.M.R. 1982) ..................................5 United States v. Hollimon, 16 M.J. 164 (C.M.A. 1983) ....................................5 United States v. Watt, 50 M.J. 102 (C.A.A.F. 1999) ..................................6 United States v. Watt, No. NMCM 96 01587, 1997 WL 803458 (N-M. Ct. Crim. App. Nov. 21, 1997) ...............................................5 STATUTE Article 31, Uniform Code of Military Justice, 10 U.S.C. 831 (2006) ................................................2, 3

ii

OTHER AUTHORITIES 2010 Workplace and Gender Relations Survey of Active Duty Members, available at http://www.sapr.mil/media/pdf/research/DMDC_2010_WGRA_Ove rview_Report_of_Sexual_Assault.pdf ........................8, 9 2012 Workplace and Gender Relations Survey of Active Duty Members, available at http://www.sapr.mil/media/pdf/research/2012_Workplace_and _Gender_Relations_Survey_of_Active_Duty_MembersSurvey_Note_and_ Briefing.pdf ................................8 Department of Defense Fiscal Year 2012 Annual Report on Sexual Assault in the Military, Volume I, available at http://www.sapr.mil/media/pdf/reports/FY12_DOD_SAPRO_Annu al_Report_on_Sexual_Assault-VOLUME_ONE.pdf ...................7 Department of Defense Annual Report on Sexual Assault in the Military, Volume II, available at http://www.sapr.mil/media/pdf/reports/FY12_DOD_SAPRO_Annu al_Report_on_Sexual_Assault-VOLUME_TWO.pdf. ..................7 Exec. Order No. 12,198, 45 Fed. Reg. 16932 (March 12, 1980).....5 Mil. R. Evid. 412.........................................2, 3, 5 C.A.A.F. R. 30...............................................1, 6 C.A.A.F. R. 30A.............................................6, 10

iii

IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES Airman First Class L.R.M., USAF, Appellant v. Lieutenant Colonel JOSHUA E. KASTENBERG, USAF Appellee and Airman First Class Nicholas E. Daniels, USAF Real Party In Interest ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) REAL PARTY IN INTERESTS OPPOSITION TO MOTION OF PROTECT OUR DEFENDERS FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF USCA Dkt. No. 13-5006/AF Crim. App. No. 2013-05

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: COMES NOW Real Party in Interest Airman First Class Nicholas E. Daniels, by and through his undersigned counsel, and pursuant to Rule 30(b) of this Honorable Courts Rules of Practice and Procedure opposes Protect Our Defenders motion for leave to file an amicus curiae brief. Protect Our Defenders amicus brief repeatedly mischaracterizes case law and impermissibly attempts to introduce purported facts (many of which are demonstrably erroneous) from outside the record in violation of Rule 30A. Consideration of Protect Our Defenders inaccurate claims is not conducive to sound decision making. Nor should this case bog

down in debates over irrelevant and erroneous factual claims 1

advanced by the amicus.

Accordingly, this Court should deny

Protect Our Defenders motion to file its amicus brief. I. Protect Our Defenders amicus brief makes numerous erroneous assertions. Protect Our Defenders repeatedly offers erroneous characterizations of precedent. For example, Protect Our Defenders describes Carlson and Ryan-Jones v. Smith, 43 M.J. 402 (C.A.A.F. 1995) (summary disposition), as a case involving two sexual assault victims who filed a petition for extraordinary relief to protect their privacy rights under Mil. R. Evid. 412, Article 31 of the U.C.M.J., generalized invasions of privacy, and their privileges. Amicus Brief at 18. That description is Carlson and Ryan-Jones

inaccurate in almost every respect.

involved a dispute over a subpoena duces tecum seeking confidential EEO documents for use in a special court-martial case. 43 M.J. at 402. No decision in the case suggests that

either of the petitioners, CDR Carlson and Dr. Ryan-Jones, was a sexual assault victim. See, e.g., Carlson and Ryan-Jones v.

Smith, 43 M.J. 367 (C.A.A.F. 1995) (identifying petitioners as Commander Erin Carlson and Rebecca Ryan-Jones, Ph.D.). Nothing in the opinion indicates that it was the petitioners

Military Rule of Evidence 412 rights, privacy interests, or Article 31 rights that were at issue. Protect Our Defenders also states, without citation to authority, that in United States v. Harding, 63 M.J. 65 (C.A.A.F. 2006), the alleged victims social worker to whom a subpoena for records had been directed requested a hearing before the military judge through her attorney and that her attorney appeared before the military judge to make legal arguments. R. at 17-18. Neither this Courts opinion in the

case nor any other document of which the Real Party in Interest is aware establishes either that the social workers counsel sought the hearing or that her counsel participated in it. Protect Our Defenders also offers an inaccurate description of this Courts decision in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011). Amicus Brief at 23-24. According to Protect

Our Defenders, Gaddis say[s] that trial judges may not even consider victims privacy despite the explicit direction in Mil. R. Evid. 412. Id. Gaddis says no such thing. Rather, Gaddis

expressly recognizes that a Military Rule of Evidence 412 analysis includes a balancing of the danger of unfair prejudice to alleged victims privacy rights except where the evidence is constitutionally required. See, e.g., Gaddis, 70 M.J. at 253

(There is no question that even considering the privacy interest of the victim will yield a constitutionally valid 3

result . . . when applied to evidence that is not constitutionally required and whose probative value does not outweigh the danger of unfair prejudice.). The amicus briefs

mischaracterization of Gaddis signifies its lack of helpfulness to this Courts resolution of the issues before it. Nor is Protect Our Defenders mischaracterization of precedent limited to military case law. The amicus brief

describes Church of Scientology of California v. United States, 506 U.S. 9 (1992), as a case involving the Church of Scientology seeking to intervene in a criminal investigation. Brief at 8. Amicus

The Courts opinion does not support that Rather, the case concerned evidence obtained

characterization.

pursuant to the Commissioner of Internal Revenues broad authority to examine the accuracy of federal tax returns. Church of Scientology of California, 506 U.S. at 448 n.2. The amicus brief characterizes In re Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d 1559 (11th Cir. 1989), as an example of an appeal by a nonparty news organization of a ruling denying access to criminal trials in federal courts. Amicus Brief at 9. That ruling was

actually an affirmance of a district courts closure order restraining counsel and parties from disclosing the content of pleadings and memoranda filed in connection with a grand jury investigation. 864 F.2d at 1561. 4

The amicus brief is also based, in part, on a misunderstanding of the source of the Military Rules of Evidence. At one point, the amicus brief states that [n]o

appellate court has ever held that it does not have jurisdiction to review a lower courts rulings on its own rules of evidence. Amicus Brief at 4. At another point, the amicus brief

erroneously states that Congress adopted Military Rule of Evidence 412. Amicus Brief at 23. The Military Rules of

Evidence, of course, were issued by the President, not by Congress. 12, 1980). See Exec. Order No. 12,198, 45 Fed. Reg. 16932 (March Arguments predicated, in part, on a misunderstanding

of the source of relevant rules are not helpful to this Courts resolution of the issues before it. Nor does the amicus brief note negative subsequent history of cases it cites. For example, Protect Our Defenders cites the

Army Court of Military Reviews decision in United States v. Hollimon, 12 M.J. 791 (A.C.M.R. 1982), without indicating that that decision was reversed, in part, by this Court, United States v. Hollimon, 16 M.J. 164 (C.M.A. 1983). 6. Amicus Brief at

It similarly cites the Navy-Marine Corps Court of Criminal

Appeals unpublished decision in United States v. Watt, No. NMCM 96 01587, 1997 WL 803458 (N-M. Ct. Crim. App. Nov. 21, 1997) [Appendix], without either appending a copy of that decision to the brief or even providing a complete WESTLAW citation and 5

without indicating that that decision was reversed by this Court, United States v. Watt, 50 M.J. 102 (C.A.A.F. 1999). Amicus Brief at 6. Given the many inaccuracies in Protect Our Defenders discussion of case law, its amicus brief is not helpful and should not be accepted. II. Protect Our Defenders amicus brief impermissibly attempts to offer purported facts from outside the record in violation of Rule 30A. This Courts rules disfavor the presentation of facts outside of the record established at the trial and the Court of Criminal Appeals. C.A.A.F. R. 30A(a). Where counsel seek an

exception to that general approach, [r]equests to consider factual material that is not contained in the record shall be presented by a motion to supplement the record filed pursuant to Rule 30. Id. In clear contravention of that rule, Protect Our

Defenders offers pages of purported facts from outside the record. See Amicus Brief at 22-27. This recitation of

purported facts points to the wisdom of Rule 30A, since consideration of Protect Our Defenders extra-record factual assertions would invite a mini-trial over their accuracy. For example, citing a Department of Defense report that is not included in the record, Protect Our Defenders states that

in fiscal year 2012 approximately 26,000 men and women defending our country were sexually assaulted. 22 n.30. Amicus Brief at

That is not even an accurate description of what the an extrapolated estimate of the

report purports to provide:

number of servicemembers subject to unwanted sexual contact, not sexual assault. See Department of Defense Fiscal Year 2012

Annual Report on Sexual Assault in the Military, Volume I, at 12 [hereinafter 2012 Report Vol. I].1 Moreover, there is good cause The survey from

to question the accuracy of that extrapolation.

which that number was extrapolated had a weighted response rate of just 24%. See Department of Defense Annual Report on Sexual Yet the 26,000 figure

Assault in the Military, Volume II, at 1.2

appears to have been derived from a gender-normed extrapolation of the results from those 24%. at 13. See 2012 Report Vol. I, supra,

If, as common sense would suggest, the response rate for

those who have been the victim of unwanted sexual contact is higher than that for those who have not, then the extrapolation would overstate the number of servicemembers subject to unwanted sexual contact. And if the response rate for those who have

been subject to unwanted sexual contact is significantly higher, then the extrapolation would overstate the true figure by a substantial amount.
1

That would, in turn, affect the disposition

http://www.sapr.mil/media/pdf/reports/FY12_DOD_SAPRO_Annual_Report_on_Sexual_ Assault-VOLUME_ONE.pdf. 2 http://www.sapr.mil/media/pdf/reports/FY12_DOD_SAPRO_Annual_Report_on_Sexual_ Assault-VOLUME_TWO.pdf.

calculations that Protect Our Defenders offers in footnote 10 of its amicus brief. Protect Our Defenders also cites another survey from outside the record as part of a discussion of why some victims of unwanted sexual contact do not report the offense. While

providing some statistics from the 2010 Workplace and Gender Relations Survey of Active Duty Members, see Amicus Brief at 22 n.11, Protect Our Defenders does not mention that 46% of both male and female survey respondents who had been the victims of unwanted sexual contact answered that they did not report the incident because it was [n]ot important enough to report. 2010 Workplace and Gender Relations Survey of Active Duty Members at vi, 44 [hereinafter 2010 WGRA].3 In the 2012

Workplace and Gender Relations Survey, that not important enough to report statistic rose to 48% for active duty women. 2012 Workplace and Gender Relations Survey of Active Duty Members at 106.4 Protect Our Defenders also seriously misreads the 2010 Workplace and Gender Relations Survey reports statistic regarding whether victims of unwanted sexual contact who

http://www.sapr.mil/media/pdf/research/DMDC_2010_WGRA_Overview_Report_of_Sexu al_Assault.pdf. 4 http://www.sapr.mil/media/pdf/research/2012_Workplace_and_Gender_Relations_Su rvey_of_Active_Duty_Members-Survey_Note_and_Briefing.pdf. The 2012 WGRA Survey does not provide a percentage for men who did not report unwanted sexual contact because it was not important enough to report. Id. at 109, 116.

reported the incident would do so again.

According to Protect

Our Defenders, only 18 percent of the women who reported their sexual assault to the DoD would make the same decision to report if they could do it over. Amicus Brief at 24. They continue,

Only 10% of men who reported sexual assault would make the same decision. Id. at 24 n.19. But that is not what the survey Rather, the 18% statistic is

results state.

Not even close.

the percentage of those who were the victims of unwanted sexual contact who both initially reported and would report again. 2010 WGRA, supra, at 35. That statistic appears to be

relatively unhelpful for analytical purposes, but Protect Our Defenders grossly overstates those who initially reported but who would not do so again which is only 11% of female victims of unwanted sexual contact and only 4% of male victims, according to the survey results. Id. at 35, 36. By introducing

facts from outside the record and then misinterpreting those facts, Protect Our Defenders once again indicates that its amicus brief is not helpful to a resolution of this case. Protect Our Defenders amicus brief also cites and discusses news accounts of other military justice cases and possible military justice cases unrelated to this case and not included in this cases record. 16 and accompanying text. See Amicus Brief at 23 nn. 12-

Such news accounts are not a proper

basis for deciding the issues before this Court. 9

This Court recently enforced Rule 30A by granting a government motion to strike portions of an appellants supplement to a petition for grant of review relying on extrarecord facts. 2013). United States v. Abadia, 72 M.J. 91 (C.A.A.F.

This Court should similarly reject an amicus brief that

advances pages of extra-record material. Conclusion For the foregoing reasons, this Honorable Court should deny Protect Our Defenders motion to file an amicus brief. Respectfully submitted,

Dwight H. Sullivan CAAF Bar No. 26867 Air Force Appellate Defense Division 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 (240)612-4773 dwight.sullivan@pentagon.af.mil

Christopher D. James, Capt, USAF CAAF Bar No. 34081 Appellate Defense Counsel Appellate Defense Division 1500 W. Perimeter Road, Suite 1100 Joint Base Andrews NAF, MD 20762 (240) 612-4770 christopher.james@pentagon.af.mil Counsel for Real Party in Interest

10

CERTIFICATE OF FILING AND SERVICE I certify that copies of the foregoing were sent via email to the Court, Appellants counsel, Judge Kastenberg, Appellees Counsel, the Air Force Government Trial and Appellate Counsel Division, counsel for amicus National Crime Victim Law Institute, counsel for amicus Protect Our Defenders, counsel for amicus Navy-Marine Corps Appellate Defense Division, counsel for amicus Marine Corps Defense Services Organization, and counsel for amicus Air Force Trial Defense Division, and the Army Defense Appellate Division, on May 29, 2013.

Dwight H. Sullivan CAAF Bar No. 26867 Air Force Appellate Defense Division 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 (240)612-4773 dwight.sullivan@pentagon.af.mil

11

APPENDIX

Only the Westlaw citation is currently available. U.S. NavyMarine Corps Court of Criminal Appeals. UNITED STATES v. Kenneth R. WATT, XXX XX XXXX Private First Class (E2), U.S. Marine Corps No. NMCM 96 01587. Nov. 21, 1997. Sentence adjudged 9 February 1996. Military Judge: H.A. Hopson. Review pursuant to Article 66(c), UCMJ, of General CourtMartial convened by Commanding General, 3d Force Service Support Group, MarForPac, Unit 38401, FPO AP 966048401. LT C.J. MCENTEE, JAGC, USNR, Appellate Defense Counsel CDR JAMESG. WEINMEYER, JAGC, USNR, Appellate Government Counsel LT J. RUSSELL MCFARLANE, JAGC, USNR, Appellate Government Counsel Before WILLIAM J. LUCAS, JOHN T. OLIVER, DAVID W. PAULSON. PER CURIAM. *1 The appellant was tried by a general court-martial with members. Contrary to his pleas, he was found guilty of rape in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. 920 (1994)[hereinafter UCMJ]. He was sentenced to confinement for 8 years, forfeiture of all pay and allowances, reduction to pay grade E 1, and a dishonorable discharge. In his action, the convening authority approved only so much of the sentence as provided for confinement for 4 years, forfeiture of all pay and allowances, reduction to pay grade E 1, and a bad-conduct discharge. Further, exercising his powers of clemency, the convening authority suspended all confinement in excess of 2 years for a period of 1 year from the date of his action. The appellant submitted five assignments of error,FN1 asserting a denial of his constitutional right to present a defense, a challenge to the sufficiency of evidence, that the military judge improperly abandoned his impartial role, that trial counsel's arguments were improper, and that the military judge erred in instructing on the issue of consent. We have carefully examined the record of trial, and we have concluded that the findings and sentence are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed. I The appellant's first assignment of error alleges that the appellant was denied his constitutional right to present a defense when the military judge prohibited him from giving testimony regarding his knowledge of the sexual reputation of the victim. A member had posed the question, [a]t the time prior to intercourse, did you have reason to believe she would have had intercourse with you if she had known who you were? Appellate Exhibit XXIV,

question 6. When asked his position at an Article 39(a), UCMJ, 10 U.S.C. 839(a) session, the trial defense counsel specifically stated, I don't have any objection to the question as it's phrased, sir. Record at 282. The military judge found the answer the appellant would give to the question improper under Military Rule of Evidence 412(b) and then decided not to allow the question. Record at 281 82. The military judge cautioned the appellant regarding his answers to questions posed by the members and to follow-up questions about to be posed by the military judge or counsel: Nowhere in your response are you going to utter what you believe you have heard [the victim's] reputation to be around the barracks. Do we understand that? Record at 282. Thereafter, with the members again present, the military judge began asking questions of the appellant from the members. Record at 28386. He also interspersed questions of his own. In light of the appellant's answers, questions were also posed by the trial counsel. Record at 28688. The military judge asked further questions from the members, and additional questions were asked by the trial counsel. Record at 288 91. *2 Significantly, no objection was raised to any of the numerous questions posed to the appellant by the military judge, trial counsel, and other members. Record at 283 90. Neither was there an objection to the instruction given by the military judge regarding the appellant's response that he can't answer. Record at 289, 291. The gist of all of these questions, taken together, invited the appellant to explain why he believed the victim might accede to his sexual advances. He was given ample opportunity to explain in any manner except by stating his view of the victim's sexual reputation. Without an objection, and absent plain error, the appellant has failed to preserve the issue on appeal. MIL. R. EVID. 103(a)(1) & (d), MANUAL FOR COURTS MARTIAL, UNITED STATES (1995 ed.). Thus, we review application of the plain-error doctrine to the appellant's case. First, this court must determine that there was an error that was not voluntarily waived. We find no such error. The appellant is mistaken in his assertion that he was denied a constitutional right to present a defense. [MIL. R. EVID.] 412 was pr emised on the precept that an accused does not have a constitutional right to present irrelevant evidence, and reputation and opinion concerning a victim's past sexual behavior are not relevant indicators of the likelihood of her consent to a specific sexual act or of her veracity. United States v. Duncan, 855 F.2d 1528, 1533 (11th Cir.1988) (quoting Doe v. United States, 666 F.2d 43, 47 (4th Cir.1981)). The exclusion of irrelevant evidence cannot implicate constitutional concerns. Allen v. Morris, 845 F.2d 610, 61415 (6th Cir.1988). As our superior court noted in United States v. Greaves, 40 M.J. 432, 439 (C.M.A.1994) , [a]ppellant was not denied his mistake -of-fact defense, but was allowed to present evidence of the circumstances surrounding the events of the night. The members obviously did not buy appellant's defense. In the case sub judice, the appellant was given ample opportunity to explain his actions. He was only prevented from stating his view of the victim's reputation. That he was unable to extricate himself from the box into which he had landed was a dilemma solely of his own making. Even if we were to find that the military judge's ruling was error, it would appear from the record that such error was voluntarily waived by failure to object. On the other hand, if we were to assume that it was not waived, but rather was what the court in United States v. Olano, 507 U.S. 725, 73334, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) referred to as forfeited error, we must still determine that it was plain, clear, or obvious. We do not so find. Ultimately, were we to find any error, we must consider whether it affected a substantial right of the accused. Id. at 735. See also United States v. Toro, 37 M.J. 313, 316 (C.M.A.1993) (citing Olano, 507 U.S. at 734, and applying it to military practice). The appellant must show unfair prejudice. Based on our review, we conclude that the miliary judge's ruling affected no substantial right and did not cause unfair prejudice. Therefore, the appellant's first assignment of error is without merit.

II *3 In his second assignment of error, the appellant alleges that the record is both legally and factually insufficient to support the finding of guilty to the crime of rape. We find no such failure of proof. Evidence is legally sufficient to support a conviction if any fact-finder could conclude beyond a reasonable doubt the existence of each element of the offense charged. United States v. Bright, 20 M.J. 661, 664 (N.M.C.M.R.1985). At trial, it is the responsibility of the trier of fact to determine the accuracy and weight of the testimony and the evidence, the relevant inferences to be drawn therefrom, the possible bias or lack thereof of the witnesses and, ultimately, the truth. United States v. Doctor, 7 C.M.A. 126, 137, 21 C.M.R. 252, 263, 1956 WL 4578 (1956). See also Art. 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Collier, 1 M.J. 358, 366 (C.M.A.1976); United States v. Frierson, 20 C.M.A. 452, 454, 43 C.M.R. 292, 294, 1971 WL 12779 (1971). Under Article 66(c), UCMJ, 10 U.S.C. 866(c), this court has the duty to determine not only the legal sufficiency of the evidence but also its factual sufficiency. The test for legal sufficiency is whether, considering the evidence in the light most favorable to the prosecution, a reasonable fact finder could have found all the essential elements beyond a reasonable doubt. United States v. Turner, 25 M.J. 324, 324 (C.M.A.1987)(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). When applying this test, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution. United States v. McGinty, 38 M.J. 131, 132 (C.M.A.1993)(quoting United States v. Blocker, 32 M.J. 281, 284 (C.M.A.1991)). The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, ... [we] are ... convinced of the accused's guilt beyond a reasonable doubt. Turner, 25 M.J. at 325. We have reviewed the entire record de novo and conclude that the evidence is both legally and factually sufficient to prove the appellant's guilt beyond a reasonable doubt. The appellant's second assignment of error is without merit. III In his third assignment of error, the appellant argues that the military judge abandoned his impartial role and became an advocate for the prosecution when he questioned the appellant about why the appellant believed the victim might accept his sexual advances. We conclude that the military judge acted properly and that his questions did not materially prejudice the appellant's substantial rights. *4 Public confidence in the military justice system mandates that judges must maintain an impartial and neutral role while presiding over a court-martial. United States v. Reynolds, 24 M.J. 261, 264 (C.M.A.1987). A military judge may not abandon his impartial role and assist the prosecution. Id. On the other hand, a military judge is not a mere figurehead or simply an umpire in a contest between the Government and accused. United States v. Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386, 1974 WL 14087 (1974). RULE FOR COURTSMARTIAL 801(c), MANUAL FOR COURTSMARTIAL, UNITED STATESS (1995 ed.)[hereinafter R.C.M.], permits the court-martial to obtain evidence in addition to that presented by the parties. Likewise, the Military Rules of Evidence permit the military judge to interrogate witnesses. MIL. R. EVID. 614(b). The dilemma a trial judge must face is to assure that the court-martial members have the information they need while scrupulously avoiding even the slightest appearance of partiality. United States v. Shackelford, 2 M.J. 17, 19 (C.M.A.1976). Because jurors are ever watchful of the words that fall from him, a mil itary judge must be

circumspect in what he says to the parties and in how he examines witnesses. United States v. Loving, 41 M.J. 213, 253 (1994)(citing United States v. Clower, 23 C.M.A. 15, 18, 48 C.M.R. 307, 310, 1974 WL 13822 (1974)(quoting Bollenbach v. United States, 326 U.S. 607, 612, 66 S.Ct. 402, 90 L.Ed. 350 (1946))). In commenting on MIL. R. EVID. 614(b), experts in military jurisprudence have written: Before the trial judge examines a witness ..., he should determine whether that witness's testimony needs clarification or completion. If the bench believes it does, questioning should be conducted with the greatest restraint. The military judge ... must continue to appear and must in fact be neutral[.] STEPHEN A. SALTZBURG, ET AL., MILITARY RULES OF EVIDENCE MANUAL 709 (3d ed.1991). Our superior court recently announced the standard for determining whether the military judge committed reversible error in situations such as this. The appropriate test is whether, taken as a whole in context of this trial, a court-martial's legality, fairness, and impartiality were put into doubt by the military judge's questions. United States v. Ramos, 42 M.J. 392, 396 (1995)(quoting Reynolds, 24 M.J. at 265). This test is applied from the viewpoint of the reasonable person. Ramos, 42 M.J. at 396. As the court noted in United States v. Dock, 40 M.J. 112, 12829 (C.M.A.1994), the clear intent of the military judge's questions was to elicit relevant facts for the edification of the members. *5 On the basis of the entire record, we believe that a reasonable person would conclude that the military judge conducted this general court-martial fairly and impartially. See Ramos, 42 M.J. at 396. Likewise, we find no prejudice to the substantial rights of the appellant. Art. 59(a), UCMJ, 10 U.S.C. 859(a). Moreover, the appellant failed to preserve this error for appellate review. Absent plain error, which we do not find on these facts, the appellant's failure to object to the questions posed and raise these issues at trial forfeited them on appeal. Olano, 507 U.S. at 73234. See MIL. R. EVID. 103(d). To prevail on appeal under the Olano plain error standard, the appellant bears the burden of persuasion with respect to prejudice. Olano, 507 U.S. at 734. See United States v. Young, 470 U.S. 1, 16 n. 14, 105 S.Ct. 1038, 84 L.Ed.2d 1 ([F]ederal courts have consistently interpreted the plain-error doctrine as requiring an appellate court to find that the claimed error ... had an unfair prejudicial impact on the jury's deliberations ... [which] undermined the fairness of the trial and contributed to a miscarriage of justice.). In this case, we can find no such prejudice. The appellant's third assignment of error is without merit. IV In his fourth assignment of error, the appellant alleges that trial counsel's argument was improperly inflammatory. The issue to be addressed is just how zealously the trial counsel may argue. After close of the evidence, the trial counsel is permitted to present argument, including reasonable comment on the evidence in the case and inferences to be drawn from it. The argument may include comments on the testimony, motives, and biases of witnesses, to the extent supported by the evidence. R.C.M. 919(b) and Discussion. Unless there is timely objection to improper argument, the objection is waived. R.C.M. 919(c), 801(g). The appellant raised no objection at trial. Nonetheless, we will examine whether trial counsel's allegedly improper arguments materially prejudiced the appellant's substantial rights. We conclude that they did not. Trial counsel's statement that the appellant was a gutless rapist and a liar, Record at 307, was not an improper argument. On the contrary, her characterization of the appellant was merely fair comment on the evidence and, more specifically, on the appellant's own testimony.

Similarly, trial counsel's statement to the effect that [m]embers, we know that's how people act when they know that they're telling a lie to someone who knows b etter ..., Record at 307, although hyperbole, was also fair comment on her apparent observations of the appellant's demeanor while testifying. Clearly, trial counsel's argument did not constitute a situation in which we must intervene to avoid a miscarriage of justice. United States v. Fisher, 21 M.J. 327, 329 (C.M.A.1986)(quoting United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). The appellant's fourth assignment of error is without merit. V *6 In his fifth and final assignment of error, the appellant argues that the military judge committed plain error by failing to specifically instruct that a person in an alcoholic black-out may still be capable of consenting to sexual intercourse. In support of his assertion, the appellant cites United States v. Baran, 22 M.J. 265 (C.M.A.1986). The now-sought-after instruction, however, was not requested by trial defense counsel, nor was a holding in support of the giving of such an instruction ever reached by the majority in Baran. Judge Everett, in his concurring opinion, noted that later inability to recall what happened does not signify that at the time of intercourse she was unable to give consent. He also stated alcohol may affect a person's memory and inhibitions without depriving him of volition; and proof of amnesia does not conclusively establish that someone was unconscious or lacked mental responsibility at the time of the events they have forgotten. Id. at 270. Just as the majority in Baran referred to the determination of the military judge, we are similarly persuaded, beyond a reasonable doubt, that appellant was not reasonably and honestly mistaken regarding the victim's consent. Id. at 267. The instructions given on the issue of the victim's ability to give consent were legally sufficient to ensure no prejudice to any substantial right of the appellant. His fifth assignment of error is without merit. Accordingly, we affirm the findings of guilty and the sentence, as approved on review below. FN1. I. APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BECAUSE THE MILITARY JUDGE RULED THAT HE COULD NOT ANSWER THE JUDGE'S AND TRIAL COUNSEL'S REPEATED QUESTIONS ABOUT THE REASONING PROCESS THAT LED HIM TO MAKE SEXUAL ADVANCES ON THE ALLEGED VICTIM. II. THE RECORD OF TRIAL IS LEGALLY INSUFFICIENT TO SUPPORT THE FINDING OF GUILTY TO RAPE. III. APPELLANT WAS DENIED A FAIR TRIAL WHEN THE MILITARY JUDGE ABANDONED HIS ROLE AS AN IMPARTIAL AND NEUTRAL ARBITER AND ASSUMED THE ROLE OF A PARTISAN ADVOCATE FOR THE PROSECUTION BY BADGERING APPELLANT WITH A QUESTION HE KNEW APPELLANT COULD NOT ANSWER. (Citations omitted.) IV. APPELLANT WAS DENIED A FAIR TRIAL BY TRIAL COUNSEL'S INFLAMMATORY ARGUMENTS ON FINDINGS WHERE SHE REFERRED TO APPELLANT AS A GUTLESS RAPIST AND A LIAR WHOSE WAY OF LOOKING AT HER DURING HIS TESTIMONY MADE HIS LIES SO OBVIOUS BECAUSE MEMBERS, WE KNOW THAT'S HOW PEOPLE ACT

WHEN THEY KNOW THAT THEY'RE TELLING A LIE TO SOMEONE WHO KNOWS BETTER[.] (Citations omitted.) V. THE MILITARY JUDGE COMMITTED PLAIN ERROR BECAUSE HE FAILED TO SPECIFICALLY INSTRUCT THE MEMBERS THAT A PERSON IN AN ALCOHOLIC BLACK OUT MAY STILL BE CAPABLE OF CONSENTING TO SEXUAL INTERCOURSE. (Citations omitted.) N.M.Ct.Crim.App.,1997. U.S. v. Watt Not Reported in M.J., 1997 WL 803458 (N.M.Ct.Crim.App.) END OF DOCUMENT