UNITED STATES, Appellee 

v. 

Juan J. CAMPOS, Seaman 

U.S. Navy, Appellant 

No. 08-0409 

Crim. App. No. 200602523 

United States Court of Appeals for the Armed Forces 

Argued December 17, 2008 

Decided May 8, 2009 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and STUCKY and RYAN, JJ., joined. BAKER, J., 

filed a separate concurring opinion. 

Counsel 

For Appellant: Major Christian J. Broadston, USMC (argued). 

For Appellee: Lieutenant Elliot W. Oxman, JAGC, USN (argued); 

Brian K. Keller, Esq. (on brief); Commander Paul C. LeBlanc, 

JAGC, USN. 

Military Judge: Bruce W. MacKenzie 

This opinion is subject to revision before final publication. 
United States v. Campos, No. 08-0409/NA 

2

Judge ERDMANN delivered the opinion of the court. 

Consistent with his pleas, Seaman Juan J. Campos was 

convicted by a military judge of one specification of possessing 

child pornography and one specification of receiving child 

pornography, both in violation of Article 134, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 934 (2000). At sentencing, 

the military judge admitted a stipulation of expected testimony 

of a psychologist who had expertise in evaluating and treating 

sexual offenders. We granted review to consider whether it was 

plain error for the military judge to admit this stipulation 

because the expert did not personally evaluate Campos and in the 

stipulation he generally opined about minimal and optimal terms 

of confinement for a person convicted of possessing child 

pornography. 

In reviewing this case we have determined that there is a 

threshold issue as to whether Campos expressly waived the right 

to challenge the admissibility of this expected testimony on 

appeal or merely forfeited the issue. We conclude that the 

right to challenge the admissibility of the stipulation of 

expected testimony was waived at trial which leaves us with no 

error to correct on appeal. Accordingly, we affirm the decision 
United States v. Campos, No. 08-0409/NA 

3

of United States Navy-Marine Corps Court of Criminal Appeals on 

the ground of waiver.1 

Background

As part of a negotiated pretrial agreement, Campos agreed 

to stipulate to the expected testimony of the Government’s 

expert witness, Dr. Dale Arnold. At trial, the Government moved 

for admission of the stipulation of Dr. Arnold’s expected 

testimony, the stipulation of another witness’s expected 

testimony, and a stipulation of fact. The military judge then 

discussed these stipulations with Campos. 

As to the stipulations of expected testimony, the military 

judge explained that they represented “an agreement between the 

trial counsel, the defense counsel, and yourself that if Doctor 

Dale Arnold and ITSN Matthew Steubing were called as witnesses 

in this case and sworn, they would testify substantially under 

oath as [indicated] within each of [their] stipulations.” The 

military judge also explained that entering into the 

stipulations of expected testimony did not admit the truth of 

the testimony, which could be “attacked and contradicted or 

explained in the same way as anyone[] else’s testimony in this 

case.” In addition, the military judge explained to Campos that 

 

1

 The Court of Criminal Appeals found that admission of the 

stipulation of expected testimony was not error. United States 

v. Campos, No. NMCCA 200602523, 2008 CCA LEXIS 7, at *5-*6, 2008 

WL 160776, at *1-*2 (N-M. Ct. Crim. App. 2009) (unpublished). 

We do not reach that issue. 
United States v. Campos, No. 08-0409/NA 

4

he had the right not to enter into any or all of the 

stipulations and none of them would be accepted without his 

consent. 

Campos indicated that he understood the military judge’s 

explanations and the military judge then asked him, “Do you 

accept the use of these?” Campos answered affirmatively. The 

military judge then asked whether “counsel for both sides desire 

to enter into each one of these stipulations.” Both counsel 

answered affirmatively. This was immediately followed by the 

military judge asking, “Any objection to any of the 

stipulations?” Only the defense counsel responded, answering, 

“No, Your Honor.” The military judge admitted each of the 

stipulations into the record. 

Discussion

On appeal to this court Campos has challenged the 

admissibility of Dr. Arnold’s expected testimony on a number of 

grounds: it violated Rule for Courts-Martial 1001(b)(5) because 

Dr. Arnold had no personal knowledge of Campos; it recommended a 

specific sentence; and it concerned inappropriate collateral 

matters. These objections were not brought to the attention of 

the military judge when the stipulation of expected testimony 

was introduced at trial so there is a threshold issue in this 

case as to whether Campos expressly waived the right to 
United States v. Campos, No. 08-0409/NA 

5

challenge the admissibility of Dr. Arnold’s expected testimony 

on appeal or merely forfeited the issue. 

“A forfeiture is basically an oversight; a waiver is a 

deliberate decision not to present a ground for relief that 

might be available in the law.” United States v. Cook, 406 F.3d 

485, 487 (7th Cir. 2005). “While we review forfeited issues for 

plain error, we cannot review waived issues at all because a 

valid waiver leaves no error for us to correct on appeal.” 

United States v. Pappas, 409 F.3d 828, 830 (7th Cir. 2005) 

(citation and quotation marks omitted); see also United States 

v. Harcrow, 66 M.J. 154, 156 (C.A.A.F. 2008). In determining 

whether a particular circumstance constitutes a waiver or a 

forfeiture, we consider whether the failure to raise the 

objection at the trial level constituted an intentional 

relinquishment of a known right. See Harcrow, 66 M.J. at 156 

(citing United States v. Olano, 507 U.S. 725, 733-34 (1993)). 

This is not simply a case where testimony came into 

evidence without any objection or comment from defense counsel. 

If that were the case, we would review for plain error.2

 Here 

 

2

 Military Rule of Evidence 103(d) allows appellate courts to 

recognize plain errors that materially prejudice an accused’s 

substantial rights even though defense counsel has failed to 

make a timely objection. “The plain error standard is met when 

‘(1) an error was committed; (2) the error was plain, or clear, 

or obvious; and (3) the error resulted in material prejudice to 

substantial rights.’” United States v. Maynard, 66 M.J. 242, 

244 (C.A.A.F. 2008) (quoting United States v. Hardison, 64 M.J. 

279, 281 (C.A.A.F. 2007). 
United States v. Campos, No. 08-0409/NA 

6

the testimony at issue is from a witness that both parties had 

stipulated need not appear at the trial. In addition, prior to 

admitting the document into evidence the military judge asked if 

there were any objections and defense counsel expressly 

indicated that he had none. 

Entering into a stipulation of expected testimony is not 

necessarily the equivalent of consenting to the admission of the 

testimony. See United States v. Glazier, 26 M.J. 268, 270 

(C.M.A. 1988) (noting that a stipulation that includes consent 

to the admission of the testimony must state so expressly). In 

this case, the stipulation of expected testimony amounted to an 

agreement between Campos, defense counsel and trial counsel that 

if Dr. Arnold were called to testify, he would testify under 

oath as reflected in the document. In light of the military 

judge’s detailed explanation of the stipulation, Campos’s 

agreement to “use of” the stipulation, and defense counsel’s 

representation that he desired to enter into the stipulation, 

the record clearly reflects that Campos waived any right to 

claim error on the ground that Dr. Arnold did not personally 

appear to present live testimony. 

However, the stipulation itself did not expressly consent 

to the admission of the testimony and the colloquy between the 

military judge and the parties did not clearly separate the 

question of entering into the stipulation from the question of 
United States v. Campos, No. 08-0409/NA 

7

the admissibility of the substance of the testimony. As such, 

the more difficult question is whether by answering “no” after 

the military judge asked for objections, defense counsel waived 

the issue of admissibility. 

Many courts have taken the position that where there is no 

objection and it is otherwise clear from the record that it was 

an intentional relinquishment of a known right, the doctrine of 

waiver will apply.3

 While circumstances may arise where a “no 

objection” statement by a defense attorney is not enough to 

demonstrate an intentional relinquishment of a known right, the 

record in this case does in fact reflect such a relinquishment. 

 

3

 See United States v. Smith, 531 F.3d 1261, 1267 (10th Cir. 

2008) (finding waiver where counsel not only represented that he 

had no objection to the admission of certain evidence but also 

relied on the evidence); United States v. Medina, 427 F.3d 88, 

91 (1st Cir. 2005) (finding waiver based on counsel’s persistent 

and reasoned refusal of judge’s suggestion to object to 

admission of evidence or obtain a cautionary instruction); 

United States v. Pittman, 319 F.3d 1010, 1012 (7th Cir. 2003) 

(finding waiver on the grounds that counsel affirmatively 

represented that he had no objection to admission of the 

evidence); United States v. Rodriguez, 311 F.3d 435, 437 (1st 

Cir. 2002) (finding waiver where counsel identified an issue by 

objecting to it at trial and then deliberately withdrew the 

objection); United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 

2001) (finding waiver where counsel repeatedly stated that he 

had no objection to the admission of evidence despite the 

magistrate’s insistence that defense had the right to be heard 

on the issue and counsel used the evidence during his opening 

statement, cross-examination, and closing argument to bolster 

his theory of the case); United States v. Mitchell, 85 F.3d 800, 

807-09 (1st Cir. 1996) (finding waiver where there was a direct 

inquiry from the judge on the precise issue and an unequivocal 

assent from defense counsel); United States v. Yu-Leung, 51 F.3d 

1116, 1122 (2d Cir. 1995) (finding waiver when evidence in 
United States v. Campos, No. 08-0409/NA 

8

The record includes an e-mail from defense counsel to Dr. Arnold 

that was sent several days before trial in which defense counsel 

represented that he “reviewed a document which outlines your 

[Dr. Arnold’s] expected testimony” and expressed a desire to 

speak with Dr. Arnold over some questions that he had about the 

substance of the testimony. 

In light of this document, there is no question that 

defense counsel had advance notice of the substance of Dr. 

Arnold’s testimony, that he reviewed the expected testimony, and 

that he considered the impact of the stipulation on his client’s 

case. At trial the military judge presented defense counsel 

with an opportunity to voice objections to the expected 

testimony and counsel responded that he had no objections. 

On appeal, Campos has not alleged ineffective assistance of 

counsel in this regard and the record does not support a 

conclusion that defense counsel’s clear “no objection” response 

amounted to anything less than a waiver in the circumstances of 

this case.4

 Therefore, we conclude that there was a waiver to 

object to both the stipulation of expected testimony of Dr. 

 

question was extensively used by the defense and failure to 

object constituted a strategic choice). 

4

 While other courts have held that where the record is unclear 

as to whether there was an intentional relinquishment of a known 

right the plain error doctrine should apply, the record before 

us does not support such an uncertainty. See United States v. 

Tobin, 155 F.3d 636, 642 (3d Cir. 1998); United States v. Perez, 

43 F.3d 1131, 1136 (7th Cir. 1994). 
United States v. Campos, No. 08-0409/NA 

9

Arnold and to the substance of that testimony. As a result 

there is no error for us to review. 

Decision

 The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed. 
United States v. Campos, No. 08-0409/NA 

 BAKER, Judge (concurring): 

I agree with the Court’s resolution of this case on the 

basis of waiver, informed by the longstanding principle that a 

military judge is presumed to know the law and act according to 

it absent some contrary indication in the record. United States 

v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007); United States v. 

Raya, 45 M.J. 251, 253 (C.A.A.F. 1996); United States v. 

Prevatte, 40 M.J. 396, 398 (C.M.A. 1994). However, the 

presumption notwithstanding, I write separately to express some 

skepticism that the military judge followed the proscription set 

forth in United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989). 

I am not confident that the military judge did not defer to the 

expert in arriving at the sentence in this case. However, other 

than the adjudged sentence, it is equally clear that there is 

little in the record to indicate that the military judge, in 

fact, failed to adhere to the principles in Ohrt. 

A military judge is responsible for, among other things, 

ensuring that sentencing is conducted pursuant to certain 

fundamental sentencing principles and procedures. See United 

States v. Heflin, 1 M.J. 131, 133 (C.M.A. 1975) (noting that a 

military judge's “primary judicial responsibility [is] to assure 

that a court-martial is conducted in accordance with sound legal 

principles”). Two such principles apply here. 
United States v. Campos, No. 08-0409/NA 

2

First, witnesses at courts-martial are prohibited from 

offering opinions regarding the quantum and quality of 

punishment warranted. This function resides solely within the 

province of the members or the military judge, depending upon 

the chosen forum. “The question of appropriateness of 

punishment is one which must be decided by the court-martial; it 

cannot be usurped by a witness.” Ohrt, 28 M.J. at 305. 

Second, military sentencing is predicated on the concept of 

individualized sentencing. United States v. Baier, 60 M.J. 382, 

383 (C.A.A.F. 2005); United States v. Mamaluy, 10 C.M.A. 102, 

107, 27 C.M.R. 176, 181 (1959). Thus, while military judges may 

bring to their deliberations their knowledge of both the law and 

human nature, they may not apply sentencing criteria that ignore 

the concept of individualized sentencing. Military sentencing 

is based on consideration of individualized factors related to 

the crime and the character of the offender rather than 

generalized sentencing theories or principles, with the concept 

of general deterrence being the notable exception. United 

States v. Varacalle, 4 M.J. 181, 183 (C.M.A. 1978). 

Here, Dr. Arnold offered a minimum sentencing 

recommendation to the sentencing authority. Moreover, that 

opinion was presented without reference or relationship to 

Appellant in particular. Now, it may be sheer coincidence that 

the adjudged confinement comports precisely with that 
United States v. Campos, No. 08-0409/NA 

3

recommended by the expert witness in this case. In light of the 

rebuttable presumption that a military judge is presumed to know 

the law, absent evidence to the contrary, I must assume that the 

military judge would not have relied on the witness’s formulaic 

sentencing recommendation in lieu of the specific circumstances 

of Appellant’s case. But on the chance that it may not be 

coincidence, I write separately here to emphasize the 

responsibility of military judges to adhere to the principles of 

military justice sentencing when sitting as the sentencing 

authority.