U.S. v. Bungert, 62 M.J. 346

Trial Stages: Appeals: Preservation of Error / Plain Error

1. where no objection is raised at trial, an appellant can only prevail on appeal if he can show plain error; to establish plain error, the appellant must demonstrate: (1) that there was error, (2) that the error was plain or obvious, and (3) that the error materially prejudiced one of his substantial rights; the appellant has the burden of persuading the court that the three prongs of the plain error test are satisfied; as all three prongs must be satisfied in order to find plain error, the failure to establish any one of the prongs is fatal to a plain error claim
2. in this case, because he did not to establish any material prejudice to his substantial rights, the accused failed to establish that the military judge committed plain error during sentencing by admitting evidence in aggravation describing the impact of his allegation that others in his unit had used drugs; the accused offered no evidence that he was prejudiced in any substantial way by the testimony of the government’s two sentencing witnesses; while he argues that these witnesses comprised the government’s entire case in aggravation, he does not explain how the outcome might have been different if their testimony had been excluded, particularly in light of the fact that the sentencing was by a military judge sitting alone; he also fails to explain how he was materially prejudiced when he received the protection and benefit of a pretrial agreement that limited his maximum possible time in confinement to 120 days regardless of the sentence adjudged by the court

Trial Stages: Appeals: Waiver

1. a claim of error that is not raised at trial is waived unless it rises to the level of plain error