# United States v. Barner

> Court of Appeals for the Armed Forces · November 16, 2001 · 56 M.J. 131

URL: https://www.frixlaw.com/law-library/cases/9836580

## Case

- **Full name:** UNITED STATES, Appellee, v. Stanley BARNER, Sergeant First Class, U.S. Army, Appellant
- **Court:** Court of Appeals for the Armed Forces
- **Decided:** November 16, 2001
- **Citations:** 56 M.J. 131; 2001 CAAF LEXIS 1383; 2001 WL 1456295
- **Precedential status:** Published
- **Opinion:** Concurrence by Sullivan
- **Judges:** Baker, Crawford, Gierke, Effron, Sullivan
- **Cited by:** 445 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9836580

## How later opinions describe it (automated extraction)

- holding a complete plain error analysis is not required if there was no error
- noting “on or about” connotes a range of days to weeks

## Opinion text

SULLIVAN, Senior Judge
(concurring):
I concur with the majority opinion on its overall legal analysis and write only to disassoeiate myself from its citation to United States v. Powell, 49 MJ 460 (1998). In Powell , the plain error rule is defined as follows:
Under a plain error analysis, appellant had the burden of persuading the court below that there was plain error. Only after appellant met his burden of persuasion did the burden shift to the Government to show that the error was not prejudicial. [*]
Id. at 464-65 (emphasis added).
This rule of Powell is flawed, as I explained in United States v. Wilson, 54 MJ 57, 60 (2000) (Sullivan, J., concurring in part and dissenting in part). There should be no burden on the Government in plain error cases to show that the error was harmless in view of the outcome of the case. That teaching in Powell should be expressly overruled because it established the most liberal plain-error rule in our country, although, since then our Court has apparently moved away from this unacceptable portion of Powell, sub silewtio. United States v. Tanksley, 54 MJ 169, 173 (2000). See United States v. Kho, 54 MJ 63, 65 (2000) (Sullivan, J., concurring).
* It is significant that the majority opinion omits any discussion of this "burden shifting” aspect of the plain error rule delineated in Powell . Even though as recently as September 19, 2001, at the 2001 William S. Fulton, Jr., Appellate Military Judges' Conference and Training Seminar in Washington, D.C., Powell , with its unusual shifting of burden to the Government to show prejudice, was cited as one of the leading cases of the plain error doctrine {see conference handout materials, Standard of Review at 15).
One is reminded of a similar incident of omission in the Sherlock Holmes story of “Silver Blaze,” where a local police inspector was trying to get Sherlock Holmes’s view of the evidence at the scene of a larceny:
"Is there any other point to which you wish to draw my attention?”
[Holmes replied] “To the curious incident of the dog in the night-time."
[Police Inspector] "The dog did nothing in the night-time.”
"That was the curious incident,” remarked Sherlock Holmes.
Daniel Stashower, Teller of Tales — The Life of Arthur Conan Doyle 131-32 (1999).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9836580. Public record. Not legal advice.