IN THE CASE OF 

UNITED STATES, Appellant/Cross-Appellee 

v. 

Mario L. CARTER, Airman First Class 

U.S. Air Force, Appellee/Cross-Appellant 

No. 04-5002 

Crim. App. No. 35027 

United States Court of Appeals for the Armed Forces 

Argued December 7, 2004 

Decided April 18, 2005

EFFRON, J., delivered the opinion of the Court, in which 

GIERKE, C.J., and BAKER and ERDMANN, J.J., joined. CRAWFORD, 

J., filed a separate dissenting opinion. 

Counsel

For Appellee/Cross-Appellant: Lieutenant Colonel Robin S. Wink

(argued); Colonel Beverly B. Knott, Lieutenant Colonel 

Carlos L. McDade, Major Terry L. McElyea, and Captain 

Jennifer K. Martwick (on brief). 

 

For Appellant/Cross-Appellee: Major James K. Floyd (argued); 

Colonel LeEllen Coacher, Lieutenant Colonel Robert V. Combs, 

Lieutenant Colonel Gary F. Spencer, and Captain C. Taylor 

Smith (on brief). 

 

Military Judge: Steven A. Hatfield 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Carter, No. 04-5002/AF 

2

Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of officer members, 

Appellee/Cross-Appellant (Appellee) was convicted, pursuant to 

his pleas, of using marijuana, distributing marijuana, 

distributing cocaine, introducing marijuana onto an installation 

with intent to distribute, and introducing cocaine onto an 

installation with intent to distribute, in violation of Article 

112a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a 

(2000). He was also convicted, contrary to his plea, of 

indecent assault, in violation of Article 134, UCMJ, 10 U.S.C. § 

934 (2000). He was sentenced to a bad-conduct discharge, 

confinement for three years, forfeiture of all pay and 

allowances, and reduction to E-1. The convening authority 

approved the sentence. In an unpublished opinion, the United 

States Air Force Court of Criminal Appeals set aside the 

findings on the indecent assault charge, affirmed the remaining 

findings, and set aside the sentence. The court authorized a 

rehearing on the indecent assault charge and on the sentence. 

United States v. Carter, ACM 35027 (A.F. Ct. Crim. App. Oct. 17, 

2003). 

The Judge Advocate General of the Air Force certified the 

following issue: 

WHETHER THE AIR FORCE COURT OF CRIMINAL 

APPEALS ERRED IN FINDING PLAIN ERROR WHEN 
United States v. Carter, No. 04-5002/AF 

3

TRIAL COUNSEL ARGUED THAT THE EVIDENCE WAS 

“UNCONTROVERTED” AND “UNCONTRADICTED.” 

On Appellee’s cross-petition, we granted review of the following 

issue: 

WHETHER APPELLEE/CROSS-APPELLANT WAS DENIED 

EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS 

DEFENSE COUNSEL FAILED TO OBJECT TO TRIAL 

COUNSEL’S REPEATED ARGUMENT THAT THE 

EVIDENCE WAS “UNCONTROVERTED” AND 

“UNCONTRADICTED” AND TOLD THE COURT MEMBERS 

THAT APPELLANT HAD AN “ABSOLUTE RIGHT NOT TO 

TESTIFY AND INCRIMINATE HIMSELF.” 

We affirm the decision of the court below, which concluded that 

the statements by trial counsel constituted prejudicial error 

under the circumstances of this case. In view of our decision 

on the certified issue, we need not reach the granted issue. 

 

I. BACKGROUND 

 At trial, Appellee contested the indecent assault charge. 

The prosecution presented one witness in support of the charge, 

the alleged victim, Senior Airman (SrA) D. According to SrA D’s 

testimony, the following transpired early one morning when she 

was in her dorm room, watching a movie. Appellee, who was a 

close friend, knocked on her door. She was alone at the time, 

and she invited him into the room to watch the movie. At one 

point, SrA D, who was lying on her bed, told Appellee that he 

could not sit on her bed, so he sat on the floor. Subsequently, 

Appellee touched SrA D’s hand, but she moved it away and told 
United States v. Carter, No. 04-5002/AF 

4

him she was “with someone.” Appellee persisted by rubbing her 

arm. She told him “no” and said that he should stop. Later, he 

rubbed her leg. SrA D told him to “chill out.” Instead, 

Appellee got on top of her, and she told him to get off and 

attempted to force him off by rolling over. While the two 

wrestled, Appellee pulled her shorts down, lifted her shirt and 

bra, and put his mouth on her breast. She told Appellee “no” 

several times over the course of the struggle. After pushing 

Appellee away, she told him to leave. When he refused, she 

called the law enforcement desk, but Appellee disconnected the 

phone after it rang only once. Appellee then walked to the 

door, and SrA D pushed him out. 

SrA D also testified that she did not yell for help and 

that she did not injure Appellee during the struggle. She 

reported the incident later the same morning. 

On cross-examination, SrA D acknowledged that she had 

engaged in consensual sexual intercourse with Appellee several 

months earlier. Upon further questioning during redirect 

examination, she stated that she had initiated the consensual 

encounter. 

 The Government did not present any other witnesses or 

evidence regarding the indecent assault charge. After the 

Government rested, defense counsel announced in open court that 

the defense would call one witness. The Government then 
United States v. Carter, No. 04-5002/AF 

5

requested an Article 39(a) session. See Article 39(a), UCMJ, § 

839(a)(2000). During the session, from which the members were 

absent, the Government asserted that the anticipated testimony 

of the defense witness, a friend of the victim, would constitute 

inadmissible hearsay. Instead of contesting the Government’s 

position, defense counsel stated, “Your Honor, rather than fight 

this out, we’re going to withdraw the witness and therefore 

rest.” When the members returned to the courtroom, the military 

judge told the defense counsel to proceed. The defense counsel 

responded, “At this time the defense rests.” Appellee did not 

testify, and the defense did not submit any evidence or call any 

witnesses. 

During closing arguments, the trial counsel repeatedly 

characterized the evidence concerning the indecent assault as 

“uncontroverted” and “uncontradicted”: 

The facts of this case are clear. They are 

uncontroverted, uncontradicted. No opposing 

evidence or information. The evidence you 

have before you is the testimony of [SrA D]. 

She sat here on this witness stand. She 

swore an oath to tell the truth and she told 

you all what happened on 24 December 2000. 

And the reason that her testimony is 

uncontroverted is because she told you what 

happened and that is what happened. 

. . . . 

Let’s talk about those elements [of indecent 

assault] just very briefly because they are 

easily satisfied by the uncontradicted 

uncontroverted evidence in this case. 
United States v. Carter, No. 04-5002/AF 

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. . . . 

. . . [SrA D’s version of events] is exactly 

what happened in this case. That is the 

uncontroverted testimony before you. That 

is the evidence that you have. Why? 

Because that is exactly what happened. 

. . . . 

The elements [of indecent assault] are 

satisfied based on the uncontroverted 

evidence. 

. . . . 

. . . The government believes . . . that 

those things occurred, that they are 

uncontradicted in this case and that you 

should find him guilty of the charge as 

specified. 

Defense counsel, who did not object during trial counsel’s 

closing argument, responded during the defense’s closing 

argument: 

Trial counsel talked about there is no 

opposing story. Well, my client, 

[Appellee], has a right, an absolute right 

not to testify and incriminate himself. And 

that should be made entirely clear. So we 

have her story. The facts still do not add 

up as much as trial counsel would like you 

to believe that. 

Following defense counsel’s closing argument, the military judge 

gave the following instruction to the members: 

I will point out that the accused has an 

absolute right to remain silent. You will 

not draw any adverse inference to the 

accused from the fact he did not testify as 
United States v. Carter, No. 04-5002/AF 

7

a witness. You must disregard the fact that 

the accused has not testified. 

Trial counsel then presented a rebuttal argument, in which he 

again characterized the facts as “uncontradicted”: 

Along those lines, members, all I would say 

to you is [the military judge’s instruction] 

is absolutely correct, but what you have to 

deal with is the evidence that is before 

you. And the government doesn’t change its 

position one bit about the fact that what 

you have are uncontradicted facts. 

You have uncontradicted facts that are the 

basic foundation of the case. 

. . . . 

The facts in this case are clear, the 

uncontradicted testimony. 

II. DISCUSSION 

A. THE PRIVILEGE AGAINST SELF-INCRIMINATION 

 Members of the armed forces, like their civilian 

counterparts, may not be compelled to incriminate themselves in 

a criminal case. U.S. Const. amend. V; Article 31(a), UCMJ, 10 

U.S.C. § 831(a)(2000). The privilege against self-incrimination 

provides an accused with the right to not testify, and precludes 

“comment by the prosecution on the accused’s silence.” Griffin 

v. California, 380 U.S. 609, 615 (1965). 

 In United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990), 

we observed that “[i]t is black letter law that a trial counsel 

may not comment directly, indirectly, or by innuendo, on the 
United States v. Carter, No. 04-5002/AF 

8

fact that an accused did not testify in his defense.” As noted 

in the Discussion accompanying Rule for Court-Martial (R.C.M.) 

919(b) in the Manual for Courts-Martial, United States (2002 

ed.)(MCM): “Trial counsel may not comment on the accused’s 

exercise of the right against self-incrimination . . . . Trial 

counsel may not argue that the prosecution’s evidence is 

unrebutted if the only rebuttal could come from the accused.” 

Although not binding, the Discussion reflects applicable 

judicial precedent. See MCM, Analysis of R.C.M., app. 21 at 

A21-66. 

Not every prosecutorial comment on the failure of an 

accused to testify is impermissible. As the Second Circuit has 

noted: 

It is well established that the government 

may comment on the failure of a defendant to 

refute government evidence or to support his 

own claims. “A constitutional violation 

occurs only if either the defendant alone 

has the information to contradict the 

government evidence referred to or the jury 

‘naturally and necessarily’ would interpret 

the summation as comment on the failure of 

the accused to testify.” 

United States v. Coven, 662 F.2d 162, 171 (2d Cir. 

1981)(citations omitted), quoted in United States v. Webb, 38 

M.J. 62, 66 (C.M.A. 1993). A prosecutorial comment must be 

examined in light of its context within the entire courtmartial. See, e.g., United States v. Baer, 53 M.J. 235, 238 
United States v. Carter, No. 04-5002/AF 

9

(C.A.A.F. 2000). Under the “invited response” or “invited 

reply” doctrine, the prosecution is not prohibited from offering 

a comment that provides a fair response to claims made by the 

defense. See, e.g., United States v. Gilley, 56 M.J. 113, 120-

21 (C.A.A.F. 2001) (citing United States v. Robinson, 485 U.S. 

25, 32 (1988)). 

B. ANALYSIS 

The certified issue requires us to determine whether trial 

counsel’s statements amounted to an impermissible reference to 

Appellee’s Fifth Amendment right to not testify, or whether the 

statements were a fair response to the defense’s theory of the 

case. In the absence of objection, we review for plain error. 

R.C.M. 919(c); Gilley, 56 M.J. at 123. Appellee must show that 

there was error, that the error was plain, and that the error 

materially prejudiced his substantial rights. See United States 

v. Powell, 49 M.J. 460, 463-65 (C.A.A.F. 1998). Once Appellee 

meets his burden of establishing plain error, the burden shifts 

to the Government to convince us that this constitutional error 

was harmless beyond a reasonable doubt. United States v. 

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

The charged act involved two adults alone in a private room 

in the early hours of the morning. There were no screams, no 

injuries, no physical evidence of a struggle, and no other 
United States v. Carter, No. 04-5002/AF 

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witnesses. Only Appellee possessed information to contradict 

the Government’s sole witness. Under these circumstances, 

prosecutorial comment on the failure to present contradicting 

evidence constitutes an impermissible reference to Appellee’s 

exercise of the privilege against self-incrimination unless the 

comment constituted a fair response to a claim made by the 

defense. See Robinson, 485 U.S. at 32-34. 

The Government argues that there was no Fifth Amendment 

violation because trial counsel’s comments responded fairly to 

the defense theory that SrA D was not a credible witness. See 

also Carter, ACM 35027, slip op. at 8-9 (Stone, J., concurring 

and dissenting). The record, however, reflects that trial 

counsel’s comments were not tailored to address any weaknesses 

in the defense’s cross-examination of SrA D or the defense’s 

efforts to impeach her. Instead, trial counsel broadly 

described the facts and evidence as “uncontradicted” and 

“uncontroverted.” See Lent v. Wells, 861 F.2d 972, 975 (6th 

Cir. 1988) (rejecting the State’s argument that the prosecutor’s 

comments were a response to defense counsel’s opening statement 

when the remarks were not tailored to address that statement). 

Credibility is at issue in nearly all cases involving 

witness testimony. In the present case, the prosecution’s 

argument repeatedly drew the members’ attention to the fact that 

Appellee did not testify. The comments were not tailored to the 
United States v. Carter, No. 04-5002/AF 

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defense credibility argument. If we were to hold that any 

defense challenge to a witness’s credibility opens the door to 

such prosecutorial comments, the “invited reply” doctrine would 

swallow the protections guaranteed by the Fifth Amendment. 

The improper comments in this case were not isolated or a 

“slip of the tongue.” See United States v. Moore, 917 F.2d 215, 

225 (6th Cir. 1990) (factoring in the isolated nature of the 

prosecutorial comments when determining the context of the 

comments); J.E. Evans, Annotation, “Comment or Argument by Court 

or Counsel That Prosecution Evidence is Uncontradicted as 

Amounting to Improper Reference to Accused’s Failure to 

Testify,” 14 A.L.R. 3d 723 § 6 (1967 Supp. 2005) (summarizing 

case law viewing repetition of the comment as an indication of 

whether the comment was improper); United States v. Wagner, 884 

F.2d 1090, 1099 (8th Cir. 1989) (finding no Fifth Amendment 

violation when the prosecutor inadvertently stated the 

appellant’s name instead of his codefendants’ names). Trial 

counsel used the words “uncontroverted” and “uncontradicted” 

repeatedly -- eleven times in all -- such that the reference to 

Appellee’s decision not to testify became a centerpiece of the 

closing argument. Even after the military judge instructed the 

members not to draw any adverse inferences from Appellee’s 

silence, trial counsel persisted in characterizing the evidence 
United States v. Carter, No. 04-5002/AF 

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as “uncontradicted” three more times. As the Court of Criminal 

Appeals concluded: 

[T]he sheer number of times he mentioned the 

words was of such a character that the 

members would naturally and necessarily take 

it as [comment on Appellee’s failure to 

testify]. Additionally, the fact that he 

mentioned the words so often makes it 

difficult to conclude that the comments were 

isolated. 

Carter, ACM 35027, slip op. at 5. 

Considering the statements in context, trial counsel 

improperly implied that Appellee had an obligation to produce 

evidence to contradict the Government’s witness. This 

essentially shifted the burden of proof to Appellee to establish 

his innocence -- a violation of protections of the Fifth 

Amendment. Under these circumstances, the comments constituted 

error under the first prong of the plain error test. See

Powell, 49 M.J. at 463. 

As noted above, trial counsel repeatedly made the comments 

in the context of Appellee’s decision not to testify. In light 

of the well-established prohibition against such comments, as 

reflected in Mobley, 31 M.J. at 279, and in the Discussion 

accompanying R.C.M. 919(b), the error was plain under the second 

prong of the plain error test. See Powell, 49 M.J. at 463. 

The third prong of Powell asks whether the error materially 

prejudiced Appellee’s substantial rights. 49 M.J. at 463-65. 
United States v. Carter, No. 04-5002/AF 

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In the context of a constitutional error, the burden is on the 

Government to establish that the comments were harmless beyond a 

reasonable doubt. Id. at 465 n.*. The Government contends that 

any error was harmless because the military judge gave curative 

instructions. See also Carter, ACM 35027, slip op. at 9 (Stone, 

J., concurring and dissenting). Although the military judge 

instructed the members that they were not to make adverse 

inferences from Appellee’s decision to remain silent, we agree 

with the majority opinion below that trial counsel’s subsequent 

rebuttal vitiated any curative effect. Id. slip op. at 6. The 

rebuttal occurred immediately after the instruction, and trial 

counsel continued to make improper reference to Appellee’s 

silence by characterizing the evidence as “uncontroverted.” 

The Government also contends that the impact of any error 

was not prejudicial because the defense failed to fulfill a 

promise to put on a defense. See Lockett v. Ohio, 438 U.S. 586, 

595 (1978) (finding that the prosecutor’s comments that the 

evidence was unrefuted and uncontroverted were not improper 

because petitioner’s counsel focused the jury’s attention on her 

silence by promising a defense and telling the jury that 

petitioner would testify); Webb, 38 M.J. at 66 (holding that 

where defense counsel told the members that the appellant’s wife 

would testify as to the appellant’s alibi, but she did not 

testify, “the prosecutor’s closing remarks add little to the 
United States v. Carter, No. 04-5002/AF 

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impression created after the jury had been promised a defense by 

appellant’s lawyer”). 

This is not such a case. The defense in the present case 

never focused the members’ attention on any facts that it 

planned to present. Although the defense at one point noted 

that they intended to present a witness, defense counsel did not 

inform the members of the identity of the witness or create any 

expectation as to the substance of the witness’s testimony. 

Defense counsel’s opening statement made it clear that the 

defense’s theory was to question the credibility of the 

Government’s witness. The opening statement did not refer to 

evidence or witnesses the defense was going to produce. Also, 

during voir dire, defense counsel specifically discussed with 

the members Appellee’s right not to testify and his right not to 

present any evidence. See Lent, 861 F.2d at 976 (finding that 

defense counsel’s voir dire testimony prepared the jurors for 

the petitioner’s silence). Under these circumstances, the 

Government has not met its burden of establishing that trial 

counsel’s improper comments were harmless beyond a reasonable 

doubt. 
United States v. Carter, No. 04-5002/AF 

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III. CONCLUSION 

 The certified question is answered in the negative. The 

decision of the United States Air Force Court of Criminal 

Appeals is affirmed. 
United States v. Carter, No. 04-5002/AF 

 CRAWFORD, Judge (dissenting): 

 If there was error in this case, it was not plain error: 

it neither “affect[ed Appellee’s] substantial rights,” nor 

“seriously affect[ed] the fairness, integrity, or public 

reputation of judicial proceedings.” Johnson v. United States, 

520 U.S. 461, 466-67 (1997). Any error was harmless because the 

defense’s voir dire, opening statement, and arguments, as well 

as the court’s instructions at numerous points, eliminated any 

threat of prejudice. United States v. Wharton, 320 F.3d 526, 

539 (5th Cir. 2003)(even if the prosecutor’s comments concerned 

the defendant’s right to remain silent, the court’s instruction 

eliminated the threat of prejudice); Battenfield v. Gibson, 236 

F.3d 1215, 1224-25 (10th Cir. 2001)(comments about defendant’s 

lack of testimony were harmless based on trial court’s 

instructions to jury). 

The defense recognized not only on voir dire but also in 

its opening statement1

 that this case revolves around “the 

credibility of one witness,” and “the issue of consent.” 

During voir dire, both the trial counsel and defense counsel 

asked the members whether they would draw an improper inference 

 

1

 This Court recognized in United States v. Houser, 36 M.J. 392, 

400 (C.M.A. 1993), and United States v. Franklin, 35 M.J. 311, 

317 (C.M.A. 1992), that an opening statement opens the door for 

rebuttal. See also United States v. McKeon, 738 F.2d 26 (2d 

Cir. 1984)(prior opening statement was admissible evidence at 

second trial). 
United States v. Carter, No. 04-5002/AF 

2

if Appellee did not testify. The members all replied twice that 

they would not draw such an adverse inference. During voir 

dire, the military judge reminded the members that the accused 

is presumed to be innocent and the defense is not required to 

introduce any evidence. 

After the Government rested, the defense said it had “one 

witness to call . . . but [needed a] comfort break.” There was 

no mention of calling Appellee as a witness during the trial or 

at any session pursuant to Article 39(a), Uniform Code of 

Military Justice, 10 U.S.C. § 839(a)(2000), and the record 

reveals no plan to call him. At the Article 39(a) session after 

that break, the defense withdrew its plan to call a witness who 

was a friend of the victim. 

 Except for the defense comment after the Government rested, 

everyone from the start of the trial recognized that this trial 

concerned “one witness,” and the members could draw inferences 

based on the direct and cross-examination of that witness. 

During the closing instructions prior to argument, the 

military judge reminded the members that the accused is presumed 

innocent and the Government must prove the case beyond a 

reasonable doubt. He told the members that they must determine 

the credibility of the witness. He instructed the members a 

number of times that the burden is upon the Government to prove 

the case beyond a reasonable doubt and that this burden never 
United States v. Carter, No. 04-5002/AF 

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shifts to the accused. Even after the defense argument, the 

military judge reminded the members not to draw any adverse 

inferences from the accused’s failure to testify. There were no 

objections. 

If there was error,2

 it was harmless beyond a reasonable 

doubt. After their opening statements, both sides had a chance 

to examine the victim vigorously. The Government argued that 

its position was supported by the victim’s testimony while the 

defense argued that her testimony was inconsistent and 

improbable. To ensure no improper inferences were drawn from 

Appellee’s failure to testify, the military judge twice informed 

the members that they were not permitted to infer guilt from the 

fact that the Appellee did not testify and properly placed the 

burden on the Government to prove its case beyond a reasonable 

doubt. For all of these reasons, I conclude that if there was 

error in this case, it was harmless beyond a reasonable doubt. 

Thus, I respectfully dissent. 

 

2

 The prosecution has the right to respond to defense counsel’s 

argument and “right the scale.” United States v. Young, 470 

U.S. 1, 13 (1985). See also United States v. Robinson, 485 U.S. 

25, 32 (1988); Darden v. Wainwright, 477 U.S. 168 (1986).