UNITED STATES, Appellee 

v. 

Christopher J. CLARK, Senior Airman 

U.S. Air Force, Appellant 

No. 10-0588 

Crim. App. No. 37499 

United States Court of Appeals for the Armed Forces 

Argued December 15, 2010 

Decided March 7, 2011 

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

C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Captain Nicholas W. McCue (argued); Lieutenant 

Colonel Gail E. Crawford and Major Anthony D. Ortiz (on brief); 

Colonel Eric N. Eklund. 

For Appellee: Captain Michael T. Rakowski (argued); Colonel Don 

Christensen, Captain Joseph J. Kubler, and Gerald R. Bruce, Esq. 

(on brief). 

Military Judge: William E. Orr Jr. 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Clark, No. 10-0588/AF

2

 Judge BAKER delivered the opinion of the Court. 

At a general court-martial convened at Holloman Air Force 

Base, New Mexico, a panel composed of officer and enlisted 

members convicted Appellant, contrary to his pleas, of one 

specification of attempting to communicate indecent language to 

a child under the age of sixteen and one specification of using 

the Internet to transfer sexually explicit electronic images to 

a person he believed had not attained the age of sixteen, in 

violation of Articles 80 and 134, Uniform Code of Military 

Justice (UCMJ), 10 U.S.C. §§ 880, 934 (2006). The adjudged and 

approved sentence consists of a bad-conduct discharge, 

confinement for eighteen months, reduction to E-1, and a 

reprimand. 

On review, the United States Air Force Court of Criminal 

Appeals affirmed. United States v. Clark, No. ACM 37499, 2010 

CCA LEXIS 182, at *20, 2010 WL 2265672, at *7 (A.F. Ct. Crim. 

App. Apr. 30, 2010). 

We granted review of the following issues: 

I. WHETHER IT WAS PLAIN ERROR FOR TRIAL COUNSEL TO 

ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND 

VERBALLY WHEN ARRESTED, AND THEN RELY ON THIS 

TESTIMONY DURING CLOSING ARGUMENT. 

II. WHETHER THE MILITARY JUDGE COMMITTED 

CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND 

A REASONABLE DOUBT WHEN HE OVERRULED DEFENSE 

COUNSEL’S OBJECTION DURING TRIAL COUNSEL’S 

IMPROPER REBUTTAL ARGUMENT. 
United States v. Clark, No. 10-0588/AF

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For the reasons set forth below, we conclude that it 

was plain or obvious error for trial counsel to elicit 

testimony of Appellant’s failure to respond verbally to an 

accusation when apprehended and then rely on this testimony 

in his closing argument. We further conclude that the 

military judge committed constitutional error when he 

overruled Appellant’s objection during trial counsel’s 

improper rebuttal argument. However, we also conclude that 

these violations were harmless beyond a reasonable doubt. 

Therefore, we affirm the United States Air Force Court of 

Criminal Appeals. 

I. BACKGROUND 

A. The Investigation 

On April 25, 2008, Appellant entered a Yahoo chat room from 

his personal computer on base under the username 

“thedude94_2000” and initiated a conversation with 

“cuti3pi32008,” an undercover officer who identified himself as 

a thirteen-year-old girl named “Suzie.” Upon adding each other 

as “friends,” Appellant’s subsequent messages to “Suzie” showed 

up as “Chris Clark.” During the course of their messaging, 

Appellant sent “Suzie” erotic images, engaged in sexual 

conversation, and ultimately invited “Suzie” to have sex and 

asked for her address and phone number. The officer gave 

Appellant a phone number and the address to a decoy house. 
United States v. Clark, No. 10-0588/AF

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Appellant never went to the house, called the phone number, or 

communicated with “Suzie” again. 

Appellant’s identity was confirmed with a photograph from 

the Defense Enrollment Eligibility Reporting System (DEERS), and 

agents and security forces went to Appellant’s home later that 

night. They detained him outside while they performed an 

initial sweep of his home for other occupants. Special Agent 

(SA) Billy Garcia, one of the agents who conducted the sweep, 

testified in response to trial counsel’s questions that after 

performing the initial sweep, the agents returned to Appellant 

and “told him that we had been notified that he had been 

sexually communicating with a minor; a child.” He further 

testified that in response, “[Appellant] didn’t say anything, he 

kind of just put his head down and kind of just looked down” and 

slumped his shoulders. The agents and security forces then went 

with Appellant back into the home, where agents searched for 

evidence and found a notebook near Appellant’s computer in which 

was written “thedude94_2000.” 

Senior Airman Eric Clark, a member of the security forces, 

testified that he and his partner escorted Appellant into 

another room in the house, “where we sat him down and we were to 

watch him while they completed searching the house.” He further 

testified that while they were watching Appellant, Appellant 

made an unsolicited statement “that he had spoken to a minor on 
United States v. Clark, No. 10-0588/AF

5

the Internet. That the girl was -- he said that he knew that 

she was underage” and “that he suspected she was a cop.” 

Appellant was subsequently transported to OSI to be 

interviewed by agents. At that point, OSI agents read Appellant 

his rights pursuant to Article 31, UCMJ, 10 U.S.C. § 831 (2006), 

for the first time. SA Garcia testified that during the 

interview he “[t]old [Appellant] the same thing that we told him 

earlier at his home. That he was suspected of communicating 

sexually with a minor.” When trial counsel asked, “And did he 

say anything in response to you this time?” SA Garcia responded, 

“No he didn’t.” At some point, Appellant elected not to have an 

attorney present and agreed to answer questions. Appellant 

admitted that his username was “thedude94_2000,” that he knew 

“cuti3pi32008” was thirteen, that he had sent her the images, 

and that he used sexually explicit language. Appellant also 

provided a sworn written statement of these admissions: 

The 25th of April 2008 I was talking to a 13 yr old from 

Clovis NM. I started of [sic] talking about who is she and 

where she’s from. Then I asked sexuall [sic] questions 

such as you ever been with a guy. She said yes and I asked 

how old was he. Then I asked more questions such as you 

want to see pictures. She said sure. So I showed her 7 to 

8 pictures. 3-4 were of a girl on a bed. Covered in 2 and 

showing in the other 2. Then I also showed 3 intercourse 

pictures. 1 nonintercourse but still nude pics. Then I 

asked here [sic] where she lived and her phone number. . . 

. Of the pics I showed the 13 yr old only one was of me 

blowing a kiss. 
United States v. Clark, No. 10-0588/AF

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 Following the interview, while waiting for the first sergeant 

to arrive, Appellant commented that the agents “had caught him 

red-handed.” 

B. Trial Proceedings 

At various stages during the trial proceedings, trial 

counsel made reference to Appellant’s physical and verbal 

responses to the accusations presented by SA Garcia, either by 

direct comment or by eliciting a response during examination of 

a witness. Appellant cites five specific instances of these 

references giving rise to the issues presented in this case. 

First, during his opening statement at trial, trial counsel 

made the following statement: 

You will hear how when confronted with being suspected of 

criminally speaking or communicating with a minor with 

sexual language, the accused’s shoulders slumped and his 

head dropped; chin to chest. 

Second, during direct examination of SA Garcia, trial 

counsel engaged in the following series of questions regarding 

Appellant’s initial apprehension: 

[Trial Counsel: W]hat did you tell [Appellant] as to why 

the reason you were there? 

[Witness:] We told him that we had been notified that he 

had been sexually communicating with a minor; a child. 

. . . . 

[Trial Counsel:] And when you told him that, do you recall 

what his response was? 
United States v. Clark, No. 10-0588/AF

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[Witness:] Yeah, well he didn’t say anything, he just kind 

of put his head down and kind of just looked down. 

. . . . 

[Trial Counsel:] Did he say anything? 

[Witness:] No. 

 Third, trial counsel proceeded to question SA Garcia 

regarding his post-rights advisement interview with Appellant: 

[Trial Counsel:] Did you ever explain to the accused or 

tell the accused why he was there? 

. . . . 

[Witness: We t]old him the same thing that we told him 

earlier at his home. That he was suspected of 

communicating sexually with a minor. 

[Trial Counsel:] And did he say anything in response to 

you this time? 

[Witness:] No, he didn’t. 

Fourth, during his closing arguments, trial counsel made 

the following comments: 

[B]efore he’s interviewed with OSI, they go to his house. 

Remember that testimony? They go to his house, Agent 

Garcia walks up to the accused, and quite clearly the 

accused was looking into his eyes. They looked. Agent 

Garcia walked up to him and said, you are under suspicion 

of criminal communication with a minor. What is the 

accused’s response when he’s confronted with this fact? 

Does he say, what? Does he say, no? What does he do? 

Sometimes body language is just as powerful as verbal 

confessions. When he’s confronted with this disgusting 

crime that he just committed, his shoulders slump and he 

puts his head down. That is a defeated position. He’s 

confronted and he’s caught. 

. . . . 
United States v. Clark, No. 10-0588/AF

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But there’s more. He’s taken to OSI, he’s placed in a 

room, agents walk into the room, and again they confront 

them [sic]. You are under suspicion for criminally 

communicating with a minor in a sexual manner. Second 

time. Hours later at this point he’s confronted with what 

he had just done. And what is his response? Nothing. He 

doesn’t respond to that comment. 

And finally, following defense counsel’s closing argument, 

trial counsel made the following rebuttal argument: 

Come on, members. Nobody asked you to leave your common 

sense at the door. No one. The defense says the first 

thing he says is, “I knew it was a cop.” Was that the 

first thing he said? Or was the first thing he said by 

body language, a defeated position when he’s confronted 

with speaking with a minor. Does he say, wait a minute 

Detective Garcia. Hold on there, just a sec. I was just 

kidding. I actually knew it was a cop when I sent that 

language. Does he say that? I accuse you of speaking 

sexually with a child. I accuse you of speaking sexually 

with a child. No comments, no denial, no response. 

Defense counsel objected only to trial counsel’s rebuttal 

argument. In overruling the objection, the military judge said, 

“I’m going to overrule it just on the basis that -– in the 

context in which he’s using it. So, I’ll overrule your 

objection right now, but be careful, trial counsel.” 

II. DISCUSSION 

A. Direct Examination and Closing Argument 

Whether there has been improper reference to an accused’s 

exercise of his constitutional rights is a question of law that 

we review de novo. United States v. Moran, 65 M.J. 178, 181 

(C.A.A.F. 2007) (citing United States v. Alameda, 57 M.J. 190, 

198 (C.A.A.F. 2002)). Because the asserted errors regarding 
United States v. Clark, No. 10-0588/AF

9

trial counsel’s references during the opening statement, direct 

examination of SA Garcia, and closing argument were not 

preserved at trial, this Court reviews them for plain error. 

Id. 

Whether there was plain error is a question reviewed de 

novo. Id. To find plain error, Appellant must show that there 

is error, that the error was plain or obvious, and that the 

error materially prejudiced his substantial rights. See United 

States v. Powell, 49 M.J. 460, 463 (C.A.A.F. 1998). 

Servicemembers have a constitutional, statutory, and 

regulatory right to silence. U.S. Const. amend. V; Article 31, 

UCMJ; Military Rules of Evidence (M.R.E.) 304(h)(3); see also 

United States v. Carter, 61 M.J. 30, 33 (C.A.A.F. 2005). Thus, 

it is settled that the government may not use a defendant’s 

exercise of his Fifth Amendment rights as substantive evidence 

against him. United States v. Gilley, 56 M.J. 113, 120 

(C.A.A.F. 2001) (citing Griffin v. California, 380 U.S. 609, 

614) (1965)). M.R.E. 304(h)(3) safeguards this right, further 

providing: 

A person’s failure to deny an accusation of wrongdoing 

concerning an offense for which at the time of the alleged 

failure the person was under official investigation or was 

in confinement, arrest, or custody does not support an 

inference of an admission of the truth of the accusation. 

Thus, in Alameda, we held that, “based on the language of Mil. 

R. Evid. 304(h)(3) and what we perceive to be the weight of 
United States v. Clark, No. 10-0588/AF

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authority in the federal circuits,” it is constitutional error 

“to introduce evidence of appellant’s post-apprehension silence 

as substantive evidence of guilt, and to then comment on that 

evidence in closing argument.” 57 M.J. at 199. “A lack of 

response or reaction to an accusation is not ‘demeanor’ 

evidence, but a failure to speak.” Id. (citing United States v. 

Velarde-Gomez, 269 F.3d 1023, 1028 (9th Cir. 2001)). 

 The lower court distinguished this case from Alameda on the 

basis that “[u]nlike the accused in Alameda, the appellant’s 

response,” as described in testimony and by trial counsel, “was 

not mere silence, but instead a clear physical reaction without 

words.” Clark, 2010 CCA LEXIS 182, at *16, 2010 WL 2265672, at 

*6. Therefore, the CCA concluded it constituted “proper 

demeanor evidence. . . . [that] is admissible to show the 

accused’s consciousness of guilt and . . . is a proper subject 

of comment by counsel.” Id. The lower court further concluded, 

“[a]rguably, the question ‘what did he say’ crossed the line” 

and “trial counsel also made passing reference to the 

appellant’s lack of verbal response during his argument; 

however, it is clear from the context of the argument that the 

comment was in fact focused on the demeanor evidence.” Id. at 

*16-*17, 2010 WL 2265672, at *6. 

The central question in this case is whether some or all of 

the testimony and statements by trial counsel refer to 
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Appellant’s right to silence, or whether they are more 

accurately described as testimony and statements regarding 

Appellant’s nontestimonial demeanor. We disagree with the 

court’s conclusion that the focus of the statements was on the 

nontestimonial character of the demeanor evidence, or that such 

“focus” is determinative on this issue. We turn first to the 

subject of demeanor evidence. 

I. Demeanor Evidence 

In light of the CCA’s analysis of “demeanor evidence,” we 

begin with a review of the law regarding the admissibility of an 

accused’s demeanor in light of established Fifth Amendment and 

relevance principles. In doing so, we recognize that the lines 

between the various categories of demeanor are not always clear. 

See United States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011). 

Thus, it is also necessary for us to establish a framework 

within which to analyze its admissibility. 

“Demeanor” evidence is evidence that describes or portrays 

“[o]utward appearance or behavior, such as facial expressions, 

tone of voice, gestures, and the hesitation or readiness to 

answer questions.” Black’s Law Dictionary 496 (9th ed. 2009). 

In its traditional sense, demeanor merely refers to the 

nonverbal conduct of a testifying witness or of the accused 

while on the witness stand or in the courtroom, rather than 

evidence counsel may seek to formally admit under the rules of 
United States v. Clark, No. 10-0588/AF

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evidence. See 1A Wigmore on Evidence § 24, at n.5 (Tiller rev. 

1983); United States v. Cook, 48 M.J. 64, 66 (C.A.A.F. 1998) 

(citing 2 Wigmore on Evidence § 274(2) at 119-20 (Chadbourne 

rev. 1979) (“the attempt to force a jury to become mentally 

blind to the behavior of the accused sitting before them 

involves both an impossibility in practice and a fiction in 

theory”)). However, demeanor evidence may also include physical 

evidence (a photograph) or real evidence, as in the case of 

physical observations made by a witness testifying, including 

other exemplars used to identify the accused (e.g., where the 

suspect was made “‘to stand, to assume a stance, to walk, or to 

make a particular gesture’”). Pennsylvania v. Muniz, 496 U.S. 

582, 591 (1990) (quoting Schmerber v. California, 384 U.S. 757, 

764-65 (1966)). Furthermore, an accused’s demeanor has been 

admitted where it is relevant to an accused’s “consciousness of 

guilt” under M.R.E. 404(b), such as in cases of an accused 

fleeing from the scene of a crime or destroying evidence, or in 

cases of witness or prosecutor intimidation, see, e.g., Moran, 

65 M.J. at 188; Cook, 48 M.J. at 66; United States v. Staton, 69 

M.J. 228, 230 (C.A.A.F. 2010). These categories of evidence of 

an accused’s demeanor are generally nontestimonial and thus 

admissible and subject to appropriate comment where relevant 

under the rules of evidence. 
United States v. Clark, No. 10-0588/AF

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Demeanor evidence may also be testimonial, however, such as 

where an accused points to the scene of a crime and then to 

himself while nodding his head up and down in response to police 

questioning. See Muniz, 496 U.S. at 594 (defining “testimonial” 

as “‘communication [that] itself, explicitly or implicitly, 

relate[s] a factual assertion or disclose[s] information’” 

(quoting Doe v. United States, 487 U.S. 201, 210 (1988))). 

Testimonial demeanor, like other testimonial evidence in 

response to police questioning, implicates an accused’s right to 

silence and against self-incrimination, thus triggering the 

application of the Fifth Amendment and its statutory and 

regulatory safeguards. See Schmerber, 384 U.S. at 761 n.5, 763-

65 (noting that “[i]t is clear that the protection of the 

privilege [against self-incrimination] reaches an accused’s 

communications, whatever form they might take” and that “[a] nod 

or head-shake is as much a ‘testimonial’ or ‘communicative’ act 

in this sense as are spoken words”). Even where demeanor is 

nontestimonial, improper commentary on the accused’s silence in 

response to police questioning when presenting evidence of an 

accused’s demeanor may nevertheless implicate the same rights 

and protections as testimonial evidence. Cf. Griffin, 380 U.S. 

at 615 (holding that the Fifth Amendment “forbids . . . comment 

by the prosecution on the accused’s silence”); Alameda, 57 M.J. 

at 199. Thus, where the evidence concerns testimonial demeanor 
United States v. Clark, No. 10-0588/AF

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or includes improper commentary on the accused’s silence, that 

demeanor evidence is generally inadmissible under the Fifth 

Amendment and its statutory and regulatory safeguards, unless 

the accused waives those rights or otherwise invites the 

evidence. See, e.g., United States v. Robinson, 485 U.S. 25, 

32-34 (1988) (holding that the privilege against selfincrimination is not violated when the prosecutor’s reference to 

the defendant’s silence is a “fair response to a claim made by 

defendant or his counsel”). 

Based on the foregoing, a framework for assessing the 

admissibility of the evidence of an accused’s demeanor emerges. 

First, we must identify the demeanor at issue and ask whether 

the demeanor is itself testimonial or not testimonial in nature, 

or whether evidence of the demeanor at issue includes improper 

commentary on the accused’s silence. If evidence of an 

accused’s demeanor is testimonial or includes an improper 

comment on silence, we analyze the evidence under the Fifth 

Amendment or applicable statutory and regulatory safeguards. 

Where the evidence is neither testimonial nor an improper 

comment on silence, we then consider whether the accused’s 

demeanor was relevant under M.R.E. 404(b) or other evidentiary 

rules relating to relevance. Therefore, the fact that trial 

counsel’s comments were merely “focused on” nontestimonial 

demeanor is not dispositive in any case. 
United States v. Clark, No. 10-0588/AF

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1. Plain Error 

In this case, we need not find the fine line that might 

exist between nontestimonial demeanor evidence, like a mere 

shoulder slump or head shrug, and the shoulder slump or head 

shrug that is testimonial and communicative in nature. For 

whatever may be inferred from the testimony in this case 

regarding Appellant’s physical responses while being questioned 

at his home, trial counsel’s questions and statements clearly 

and repeatedly used Appellant’s silence and body language as 

expressions of guilt. Trial counsel’s comments in his opening 

statement, direct examination of SA Garcia, and closing argument 

constituted plain error because they clearly commented on 

Appellant’s silence in response to SA Garcia’s postapprehension, pre-advisement accusation of criminal conduct, in 

violation of M.R.E. 304(h)(3) and the Fifth Amendment right to 

silence.1

 A review of each statement indicates why. 

 

1

 Thus, we are also not required to proceed to the second step of 

the demeanor analysis and decide here whether Appellant’s 

demeanor was relevant to consciousness of guilt under M.R.E. 

404(b) or as real or physical evidence. We do note that 

demeanor evidence is relevant to an accused’s consciousness of 

guilt only in cases where the inference of guilt is clear, see

e.g., Moran, 65 M.J. at 188 (holding that evidence of the 

accused shaving all of his body hair after learning that 

investigators wanted a hair sample was relevant); Cook, 48 M.J. 

at 66 (citing examples of witness intimidation, such as making a 

hand gesture in the shape of a gun and mouthing the words 

“‘you’re dead’” in the courtroom) (citation omitted); Staton, 69 

M.J. at 231 (attempting to run over the prosecutor in the 

parking lot). Subtle physical demeanor is not admissible as 
United States v. Clark, No. 10-0588/AF

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First, trial counsel’s opening statement referred to 

Appellant’s reaction -- “shoulders slumped and his head dropped; 

chin to chest” -- as his response to being “confronted with 

being suspected of criminally speaking or communicating with a 

minor with sexual language.” Rather than describe Appellant’s 

body movements as one of a series of events to describe what was 

happening, trial counsel was conveying that Appellant failed to 

deny the accusation. 

In addition, during direct examination of SA Garcia, trial 

counsel not only elicited explicit comments on Appellant’s 

response of silence but explicitly commented on Appellant’s 

silence himself in the examination questions. Trial counsel 

asked, “[a]nd when you told him [the accusation], do you recall 

what his response was?,” and “Did he say anything?” -- to which 

SA Garcia replied, “he didn’t say anything,” and “No.” 

(Emphasis added.) 

Moreover, although Appellant’s response to SA Garcia during 

the OSI interview occurred after Appellant waived his rights, 

 

relevant to an accused’s consciousness of guilt, because it is 

equally susceptible to other inferences. See Cook, 48 M.J. at 

67 (holding that yawning by the accused during testimony of the 

effects of child abuse was irrelevant where the appellant was 

familiar with the evidence “because he previously had been 

counseled by the first sergeant for child abuse”); id. at 66 

(citing other examples of irrelevant demeanor by the accused, 

such as laughing during testimony that the accused threatened 

the life of the President, consulting with counsel during trial, 

or moving a leg up and down in a seemingly nervous fashion 

during trial). 
United States v. Clark, No. 10-0588/AF

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trial counsel’s questions and the elicited responses made clear 

reference to Appellant’s pre-rights advisement response of 

silence. SA Garcia testified “[We t]old him the same thing that 

we told him earlier at his home,” to which trial counsel 

responded, “And did he say anything in response to you this 

time?” (Emphasis added). 

Finally, trial counsel relied on these comments in his 

closing argument to explicitly argue that Appellant’s silence 

evidenced his guilt: 

What is the accused’s response when he’s confronted with 

this fact? Does he say, what? Does he say, no? What does 

he do? Sometimes body language is just as powerful as 

verbal confessions. When he’s confronted with this 

disgusting crime that he just committed, his shoulders 

slump and he puts his head down. That is a defeated 

position. 

Trial counsel’s closing argument is more direct than the closing 

argument made by trial counsel in Alameda: 

“. . . And lo and behold, the cops came and picked me up, 

and I was just sitting there on the steps, didn’t know what 

this was about,” but didn't bother even to ask. 

 . . . . 

[Trial Counsel]: And when Sergeant Moody approaches him on 

the steps and says, “Are you Tedio Alameda? Stand up. . . 

. Let me see your identification card.” He doesn't even 

say, “What’s this all about?” 

57 M.J. at 196. The rhetorical questions employed by trial 

counsel in each case clearly suggested to the panel that an 

innocent person would have said something; therefore, the 
United States v. Clark, No. 10-0588/AF

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accused’s silence was being used as evidence of guilt. Indeed, 

trial counsel stated that Appellant’s demeanor was “body 

language [that] is just as powerful as [a] verbal confession[].” 

The Fifth Amendment cannot with one hand protect an accused 

from being compelled to testify and yet with the other hand 

permit trial counsel to argue that an accused’s silent demeanor 

in response to an accusation of wrongdoing is tantamount to a 

confession of guilt. These kinds of arguments are exactly what 

M.R.E. 304(h)(3)2

 addresses. As this Court has made clear in 

other cases, “[s]uch comments may serve to hinder the free 

exercise of such rights -– rights that carry with them the 

‘implicit assurance that [their] invocation . . . will carry no 

penalty.’” Moran, 65 M.J. at 181 (alteration in original) 

(quoting United States v. Daoud, 741 F.2d 478, 480 (1st Cir. 

1984)). 

A. Rebuttal Argument 

The second issue relates to trial counsel’s rebuttal 

argument. Unlike the errors related to the first issue, 

 

2

 M.R.E. 304(h)(3) provides: 

A person’s failure to deny an accusation of wrongdoing 

concerning an offense for which at the time of the alleged 

failure the person was under official investigation or was 

in confinement, arrest, or custody does not support an 

inference of an admission of the truth of the accusation. 
United States v. Clark, No. 10-0588/AF

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Appellant objected to these comments, thus preserving the error 

and subjecting it to a separate analysis. 

The Government argues that trial counsel’s comments on 

rebuttal were invited as fair response to Appellant’s general 

argument that Appellant thought “Suzie” was a cop. 

“[T]he Government is permitted to make ‘a fair response’ to 

claims made by the defense, even when a Fifth Amendment right is 

at stake.” Gilley, 56 M.J. at 120 (citing Robinson, 485 U.S. at 

32). In order to determine whether trial counsel’s comments 

were fair, we must examine them in context. Id. at 121. “In 

reviewing the actions of the military judge, we must ask 

whether, given the defense theory of the case, trial counsel’s 

comments were fair.” Id. at 123. 

The theory behind defense counsel’s closing argument was 

that Appellant suspected “Suzie” was a law enforcement officer 

all along and that he confessed to knowing that “Suzie” was a 

thirteen-year-old girl only because that is what he was being 

told to do. At one point, defense counsel argued: 

What is it that Airman Clark said right from the start? “I 

thought it was a cop.” And he didn’t say that because 

someone told him that really was a cop you were chatting 

with. Because what he was being told is that really was a 

13-year-old girl. That really was a 13-year-old girl and 

what was his response? “It sounded like a cop; I thought 

it was a cop.” 

Now in his statements to OSI, trial counsel wants you 

to only believe those statements that support their 

position on this case. They only want you to believe the 
United States v. Clark, No. 10-0588/AF

20

part in there where Airman Clark refers to the person as a 

13-year-old girl. Of course, why is he referring to it as 

a 13-year-old girl, that’s what everyone was telling him 

that who he was chatting with was a 13-year-old girl. 

In rebuttal, trial counsel argued: 

The defense says the first thing he says is, “I knew it was 

a cop.” Was that the first thing he said? Or was the 

first thing he said by body language, a defeated position 

when he’s confronted with speaking with a minor. Does he 

say, wait a minute Detective Garcia. Hold on there, just a 

sec. I was just kidding. I actually knew it was a cop 

when I sent that language. Does he say that? I accuse you 

of speaking sexually with a child. I accuse you of 

speaking sexually with a child. No comments, no denial, no 

response. 

Trial counsel may use the fact of post-arrest silence “‘to 

contradict a defendant who testifies to an exculpatory version 

of events and claims to have told the police the same version 

upon arrest,’” thus acting not as substantive evidence of guilt 

but rather as a “‘challenge [to] the defendant’s testimony as to 

his behavior following arrest.’” Gilley, 56 M.J. at 120 

(quoting Doyle v. Ohio, 426 U.S. 610, 619-20 n.11 (1976)). 

However, trial counsel is prohibited from “‘treat[ing] the 

defendant’s silence as substantive evidence of guilt.’” Id. at 

121 (quoting Robinson, 485 U.S. at 32); M.R.E. 304(h)(3). That 

is what trial counsel did here. He did not merely rebut 

Appellant’s assertion that he thought “Suzie” was a law 

enforcement officer, he argued through Appellant’s demeanor that 

“the first thing he said by body language, a defeated position 
United States v. Clark, No. 10-0588/AF

21

when he’s confronted with speaking with a minor. . . . No 

comments. No denial. No response.” 

This is not a scenario where Appellant testified to making 

an exculpatory statement to the police after his arrest, when in 

fact he did not. Nor did defense counsel argue that the “first” 

thing Appellant said was, “I thought it was a cop.” Defense 

counsel could not have made that argument for obvious reasons. 

He was relying on Senior Airman Clark’s testimony of Appellant’s 

spontaneous unwarned statement that Appellant “had spoken to a 

minor on the Internet. That the girl was -- he said that he 

knew that she was underage,” and that Appellant “suspected that 

she was a cop.” Furthermore, despite defense counsel’s theory, 

defense counsel acknowledged in his closing argument that 

Appellant made other statements to OSI “referring to [“Suzie”] 

as a thirteen-year-old girl.” Thus, taken in context, defense 

counsel’s closing argument did not invite trial counsel to argue 

what Appellant said “first,” or rather what Appellant said 

“first” through “body language.” Such statements went beyond 

what was permissible as fair response and used Appellant’s 

demeanor and silence as evidence of guilt. Under Alameda this 

is constitutional error. 

A. Harmlessness 

“For constitutional error, we must be satisfied beyond a 

reasonable doubt that the error was harmless.” Alameda, 57 M.J. 
United States v. Clark, No. 10-0588/AF

22

at 199-200. Whether the errors in this case were preserved or 

unpreserved, our review of the facts results in the same 

conclusion: any errors in this case were harmless beyond a 

reasonable doubt. 

The Government’s case against Appellant was supported by 

substantial evidence. Appellant was positively identified by 

his name and contact information online after Appellant became 

“friends” with “Suzie.” His online information was later 

visually matched through the DEERS, and confirmed upon the OSI 

agents’ arrival at Appellant’s home. OSI agents recovered 

Appellant’s notebook near his computer containing the same user 

name Appellant had used to communicate with “Suzie.” Appellant 

spontaneously remarked to Senior Airman Clark that he knew that 

“Suzie” was underage. And, Appellant affirmatively waived his 

Fifth Amendment rights at the OSI office, admitting both in the 

interview and in a sworn statement to sexual communications with 

someone he believed to be thirteen years old. Appellant’s case, 

on the other hand, rests entirely on the fact that Appellant 

stated that “he suspected [“Suzie”] was a cop,” without being 

able to contradict any of the Government’s evidence. 

III. CONCLUSION 

For the foregoing reasons, the decision of the United 

States Air Force Court of Criminal Appeals is affirmed.