                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  ____________

                      No. 07-2474
                     ____________

           UNITED STATES OF AMERICA,

                           v.

               EDWARD HOWARD, JR.,
                   a/k/a Bucky

                EDWARD HOWARD JR.,
                               Appellant
                   ____________

APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
           (D.C. Crim. No. 3-05-cr-00290-10)
      District Judge: Honorable James M. Munley
                     ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   November 19, 2010
                     ____________

Before: BARRY, CHAGARES and VANASKIE, Circuit Judges

           (Opinion Filed: November 30, 2010)
                     ____________

                       OPINION
                     ____________
BARRY, Circuit Judge

       Edward Howard, Jr., pled guilty to a controlled substance offense and was

sentenced to ninety-five months in prison, explicitly waiving his right to appeal his

conviction and sentence. He now asks us to remand to the District Court for

resentencing, arguing that his sentence was unreasonable. Because he has not

demonstrated that his waiver of appeal was invalid or that to enforce the waiver would

result in a miscarriage of justice, we will affirm the judgment of sentence.

                                             I.

       Because we write only for the parties, we discuss only the facts relevant to our

analysis.

       In November of 2005, Howard and twenty one others were indicted in connection

with a methamphetamine operation that authorities began investigating in 1999. Pursuant

to a negotiated agreement, Howard pled guilty to the attempted manufacture, distribution,

and possession with intent to manufacture and distribute methamphetamine.

       Howard’s plea agreement stipulated, inter alia, that he “waive[d] the right to

appeal any conviction and sentence, including a sentence imposed within the statutory

maximum, on any and all grounds set forth in Title 18, United States Code, Section 3742

or any other grounds, constitutional or non-constitutional, including the manner in which

that sentence was determined in light of United States v. Booker, 125 S. Ct. 738 (2005).”

App. at 41. The plea agreement further stated that “[p]ursuant to Rule 11 . . . defendant’s

                                             2
plea is knowing and voluntary, and is not the result of force or threats or promises apart

from the promises set forth in this written plea agreement.” App. at 42.

       At the subsequent plea colloquy, the government recited the terms of the plea

agreement, including the waiver of Howard’s right to appeal his conviction and sentence.

When asked by both the government and the District Court whether he understood those

terms and voluntarily agreed to them, Howard replied affirmatively. The Court also

directed the government to voir dire Howard concerning his signed Statement of

Defendant, and when subsequently asked whether it was his “intention to knowingly and

intentionally waive [his] right to appeal[,]” Howard again replied affirmatively. Change

of Plea Transcript at 25. Specifically, Howard’s Statement averred “that as part of the

plea agreement, I am waiving my right to appeal and/or challenge my conviction and

sentence, and the manner in which it was imposed.” App. at 46.

       Howard faced a statutory maximum prison sentence of twenty years. See 21

U.S.C. § 841(b)(1)(C). Because, however, he had provided substantial assistance to

authorities, the District Court granted the government’s motion for a three-level

downward departure in his offense level, yielding a Guidelines range of 87 to 108

months. Howard urged the Court to impose a sentence of “no greater than five years” –

i.e., sixty months – in light of the nature of his criminal history, and his personal history

of substance abuse, lack of education, and underemployment. App. at 75-77. The Court

considered Howard’s argument, the government’s counter-argument for a within-

                                              3
Guidelines sentence, and the factors enumerated in 18 U.S.C. § 3553(a), and sentenced

Howard to ninety-five months in prison.

                                            II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       Howard argues that his sentence is unreasonable. Where, however, as here, the

existence of an appellate waiver implicates the antecedent question of our jurisdiction to

review the District Court’s judgment of sentence, we first review the validity of the

waiver, and our review is de novo. See United States v. Khattak, 273 F.3d 557, 560, 562

(3d Cir. 2001).

       In United States v. Jackson, we rejected an appeal challenging the reasonableness

of a sentence, at the high end of the Guidelines range, imposed on a defendant who pled

guilty pursuant to a plea agreement that included an appellate waiver. See United States

v. Jackson, 523 F.3d 234, 244 (3d Cir. 2008). In the course of doing so, we summarized

the rule that we had laid down in Khattak, and clarified in United States v. Gwinnett, 483

F.3d 200, 203 (3d Cir. 2007):

       Waivers of appellate rights, if entered into knowingly and voluntarily, are
       valid. A defendant’s valid appellate waiver does not deprive this Court of
       jurisdiction over the defendant’s claims, and we retain subject matter
       jurisdiction over the defendant’s appeal despite the waiver. As we noted in
       Gwinnett, we will decline to exercise our jurisdiction to review the merits
       of an appeal where the defendant knowingly and voluntarily waived the
       right to appeal. Of course, we will review the merits of an appeal if the
       waiver expressly provides specific exceptions under which an appeal may
       be taken, provided the appeal implicates one of those exceptions.
                                             4
        Furthermore, we have recognized that there may be an unusual
        circumstance where an error amounting to a miscarriage of justice may
        invalidate the waiver, and in such cases we will exercise our jurisdiction
        over a waived appeal.

Jackson, 523 F.3d at 242 (internal alterations, quotation marks, and citations omitted). 1

        Howard concedes that he “waived his right to appeal,” and that his “waiver of

appeal, if valid, would prevent review of what [he] believes is an unreasonable sentence.”

Appellant’s Br. at 7, 8. The record demonstrates that his waiver of appeal was valid;

indeed, the District Court conducted a thorough plea colloquy to ensure that Howard’s

guilty plea was knowing and voluntary, as was his assent to the provisions of his plea

agreement, including its waiver of the right to appeal. Accordingly, Howard has not met

Khattak’s threshold requirement of proving that his waiver was unknowing or

involuntary. See Khattak, 273 F.3d at 562; Jackson, 523 F.3d at 243-44 (waiver valid

where record reveals a “thorough and proper” plea colloquy by the district court, and the

defendant’s awareness, “by her own admission,” of the appellate waiver).

   1
       In Jackson we proceeded to note:

        While this Court has not articulated a precise definition of the phrase “miscarriage
        of justice,” we have set forth several factors to consider when determining whether
        to enforce an otherwise proper appellate waiver. See Khattak, 273 F.3d at 563
        (noting that this Court chose “not to earmark specific situations” in which to
        relieve the defendant of a waiver). These factors include “the clarity of the error,
        its gravity, its character (e.g., whether it concerns a fact issue, a sentencing
        guideline, or a statutory maximum), the impact of the error on the defendant, the
        impact of correcting the error on the government, and the extent to which the
        defendant acquiesced in the result.” See id. (quoting United States v. Teeter, 257
        F.3d 14, 25-26 (1st Cir.2001)).

Jackson, 523 F.3d at 242-43.                  5
       Relying on the second prong of Khattak, Howard “requests that [his appellate]

waiver not be enforced in order to prevent a miscarriage of justice.” Appellant’s Br. at 8.

He then reprises the argument he presented to the District Court that his “sentence should

take into account his history of addiction, his lack of education and his unsteady

employment history.” Id. at 9. 2 In so doing, however, he offers no evidence of “unusual

circumstance[s] where a[ sentencing court’s] error amount[s] to a miscarriage of justice”

that merits setting aside an otherwise-valid waiver of appeal. See Khattak, 273 F.3d at

562. Indeed, he has alleged no error at all. Rather, in “contend[ing] that a sentence

below the advisory guideline range is necessary to reflect the nature and circumstances of

the crime and the history and characteristic [sic] of the Appellant[,]” Appellant’s Br. at

11-12 (emphasis added), Howard misreads the law governing sentencing, and ignores the

record’s ample evidence of the Court’s careful consideration of his arguments and all of

the sentencing factors that the law required it to weigh.

       A ninety-five month prison sentence undoubtedly is strong, but the record does not

suggest a miscarriage of justice that would permit us to invalidate Howard’s waiver and

   2
     Presumably as evidence of his sentence’s unreasonableness—i.e., in the sense that it
was disproportionate to his offense—Howard also argues to us that he did not profit from
the sale or distribution of methamphetamine, and that his underemployment “evidence[d]
his need to manufacture methamphetamines for his own personal use.” Appellant’s Br. at
10. Aside from being unpersuasive in its own right, Howard did not make this argument
before the District Court. Moreover, the record includes voluminous evidence that
Howard was involved in a large-scale methamphetamine operation, a fact that the Court
noted contemporaneous with its consideration of Howard’s arguments and of Section
3553(a)’s sentencing factors.
                                            6
thereby consider the merits of his appeal of his sentence. 3 We will affirm the judgment

of sentence.

   3
       As we observed in Jackson:

         [I]t will be a rare and unusual situation when claims of an unreasonable sentence,
         standing alone, will be sufficient to invalidate a waiver because of a miscarriage of
         justice. This case obviously does not present the “unusual circumstances” we
         contemplated in Khattak. Accordingly, we decline to exercise our jurisdiction
         over [the instant] appeal, as [appellant] has waived the ability to challenge [his]
         sentence of imprisonment[.]

See Jackson, 523 F.3d at 244.                  7


735 F.2d 1366
Mercerv.Luther
83-1058
United States Court of Appeals,Seventh Circuit.
5/10/84

1
N.D.Ill.

AFFIRMED


       This opinion is subject to revision before publication

         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
               Austin L. HENDRIX, Specialist
                United States Army, Appellant
                          No. 16-0731
                    Crim. App. No. 20140476
         Argued March 16, 2017—Decided June 1, 2017
               Military Judge: David H. Robertson
   For Appellant: Captain Cody Cheek (argued); Colonel Mary
   J. Bradley, Lieutenant Colonel Christopher D. Carrier, Ma-
   jor Christopher D. Coleman, and Captain Matthew L.
   Jaladoni (on brief).
   For Appellee: Captain Linda Chavez (argued); Colonel
   Mark H. Sydenham, Lieutenant Colonel A. G. Courie III,
   and Major Cormac Smith (on brief).
   Judge OHLSON delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   RYAN, and SPARKS, joined.
                     _______________

   Judge OHLSON delivered the opinion of the Court.

    Contrary to Appellant’s pleas, a general court-martial
with enlisted representation convicted Appellant of one spec-
ification of sexual abuse of a child, in violation of Article
120b, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§ 920b (2012). Appellant’s adjudged and approved sentence
consisted of confinement for thirty months, a reduction to E-
1, forfeiture of all pay and allowances, and a dishonorable
discharge. The United States Army Court of Criminal Ap-
peals (CCA) affirmed the approved findings and sentence.
See United States v. Hendrix, 75 M.J. 704, 707 (A. Ct. Crim.
App. 2016). We granted review on five issues, but we need
only address the following two issues:1

   1 We also granted review as to whether a judge could simulta-
neously sit on the CCA and the United States Court of Military
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

           [I]. Whether the military judge abused his dis-
       cretion in denying Appellant’s motion to compel an
       expert consultant, EP, in the field of audio forensic
       science and voice identification.
           [II]. Whether the military judge abused his dis-
       cretion when he denied a defense motion to sup-
       press related to the identification of the Appellant
       during a voice lineup.
United States v. Hendrix, 76 M.J. 40, 40–41 (C.A.A.F. 2016).
    For the first issue, we conclude that the military judge
did not abuse his discretion because the defense failed to
demonstrate the necessity of having an expert consultant in
the field of audio forensic science and voice identification as-
sist him before trial. For the second issue, we conclude that
the military judge did abuse his discretion because under
the factual circumstances of the instant case, the putative
voice-lineup evidence had no probative value. We further
conclude that this evidence substantially influenced the
members’ findings and thus had a prejudicial effect. Accord-
ingly, we reverse the decision of the United States Army
Court of Criminal Appeals.
                         I. Background

    On June 10, 2013, Appellant and Private First Class
(PFC) BW visited the quarters of Specialist (SPC) PK in
Kaiserslautern, Germany. SPC PK shared this home with
his wife, his ten-year-old daughter (Miss JK), his nine-year-
old daughter, and two infant daughters. Appellant had visit-
ed SPC PK’s home on a few occasions, and PFC BW was a
frequent visitor to the home. During the evening of June 10,
Appellant interacted with Miss JK by braiding her hair, and
Appellant and SPC BW slept overnight at the house.
   The following day after school, Miss JK asked her step-
mother whether she had ever been “sexually assaulted.” The
stepmother stated that she had and inquired why Miss JK

Commissions Review (USCMCR). In United States v. Ortiz, we
held that the appellate military judge was statutorily authorized
to sit on the CCA and his presidential appointment to sit on the
USCMCR did not violate the Appointments Clause with regard to
his status on the CCA. 76 M.J. 189 (C.A.A.F. 2017). Therefore, we
resolve this matter in favor of the Government.

                                2
           United States v. Hendrix, No. 16-0731/AR
                     Opinion of the Court

was asking. This prompted Miss JK to tell a story about a
friend’s mother being sexually assaulted the prior night.
    Later that afternoon, SPC PK and his wife smelled cigar
smoke in the house and asked their two older daughters who
was responsible. Miss JK and her sister both denied respon-
sibility and began blaming the other. When neither daugh-
ter admitted responsibility, SPC PK “gave them a few
spankings with [his] work belt.” He took a five-minute break
from the first set of spankings. When neither girl would ad-
mit responsibility, he spanked them again until he took an-
other break. These spankings resulted in abrasions and
bruises on Miss JK’s right thigh and hip area and a bruise
on her inner left thigh. During the second or third break
from the spankings, SPC PK’s wife overheard Miss JK tell
her sister to take the blame for lighting the cigar because
Miss JK had been sexually assaulted the night before and
did not want her father to keep hitting her. When SPC PK’s
wife sought clarification, Miss JK was “very hesitant to say
much” and “was very shy about it.” At that time, Miss JK
did not identify Appellant as the perpetrator of the sexual
assault. Instead, Miss JK stated that “she didn’t know who,
but she knew it wasn’t [PFC BW] because she knew his
voice.”
   After making this allegation of abuse, Miss JK saw a
sexual assault nurse examiner (SANE) at the emergency
room. Miss JK reported to the SANE multiple times that the
touching of “her private parts” occurred “on top of her
pants.”
    The Army Criminal Investigation Command (CID) con-
ducted an investigation into Miss JK’s allegations. CID col-
lected the clothing that Miss JK was wearing on the night of
the alleged assault, including her underwear. A DNA exam-
ination of the underwear revealed that “there was male
DNA there,” but it was only an “inconclusive DNA profile.”
The forensic examiner could not “pinpoint” where the DNA
was found on the underwear, but the profile came from “a
swab of the waistband, inside front panel, as well as inside
crotch” of the underwear. The examiner also could not match
the DNA to Appellant or to any other individual because it
was of “low quality and minute [quantity].”

                              3
           United States v. Hendrix, No. 16-0731/AR
                     Opinion of the Court

   CID also spoke with Miss JK about her allegations. Miss
JK reported that: (1) she was “really tired” and did not re-
member much about the incident; (2) she “felt like” it was “a
dream or something;” (3) she was “pretty sure” the incident
was not a dream; and (4) the perpetrator did not pull down
her clothes. Pursuant to questioning by CID, Miss JK even-
tually identified Appellant as the perpetrator through the
process of elimination by stating that PFC BW “didn’t do it,”
her father “wouldn’t do it,” her sister and mother would not
do it, and Appellant “was the only other one” in their house
the night of the incident. Miss JK also informed CID that
she heard Appellant’s voice, but she did not see Appellant’s
face because “it was really dark.”
    Following law enforcement’s investigation, the Govern-
ment preferred a charge of sexual abuse of a child against
Appellant. However, the Article 32, UCMJ, 10 U.S.C. § 832
(2012), investigating officer determined that Miss JK “did
not provide credible testimony regarding the sexual assault.”
The investigating officer further found that no “reasonable
ground exist[ed] to believe that” Appellant had committed
the offense because there was “no credible evidence to be-
lieve that [Appellant] touched [Miss JK’s] groin area,” and
even if the incident did occur, he was “still not convinced
that [Appellant] is the person that sexually assaulted her.”
The investigating officer noted that Miss JK had only met
Appellant on two other occasions and that “CID never did a
voice [lineup] to confirm whether [Miss JK] could identify
[Appellant’s] voice.” After the Article 32, UCMJ, investiga-
tion was completed, government counsel requested that CID
conduct a voice lineup.
    A CID agent in Kaiserslautern, Germany, created voice
recordings to conduct the voice lineup. The agent had never
performed or created a voice-identification procedure before.
Furthermore, the CID office in Germany did not have any
protocols or standard operating procedures for voice identifi-
cations. However, the CID agent believed the procedures for
creating voice lineups were the same as photographic ar-
rays.
    The CID agent recorded the voices of six individuals: Ap-
pellant; PFC BW; three CID agents; and a Navy sailor. At
the suppression hearing, defense counsel told the military

                              4
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

judge that one of the CID agents had a speech impediment
and that the Navy sailor “was picked simply at random” and
had a cough, “sinus issues,” and a Jamaican accent. (Appel-
lant is Caucasian.) The trial counsel did not dispute this
characterization. Although Miss JK only heard the perpetra-
tor speak in a whisper, the CID agent asked each male to
say two sentences—“Is your sister asleep” and “Promise me
you won’t tell anybody”2—at three ascending volume levels:
“a whisper, above a whisper, and [a] normal voice.” The CID
agent then created three voice-identification segments. Each
segment included all six voices being played at each voice
level. The only difference between the segments was the po-
sition of the voices—each voice was played in a different or-
der for the three segments. The CID agent sent the voice-
identification segments to the CID office at Fort Eustis, Vir-
ginia, where SPC PK was then stationed with his family.
    On March 7, 2014,—nine months after the alleged sexual
assault occurred—a CID agent conducted the voice lineup
with Miss JK at the Fort Eustis CID office. This CID agent
had never performed a voice lineup, but he, like his counter-
part in Germany, equated it with a photographic identifica-
tion.
   To facilitate the voice lineup, the command directed SPC
PK to bring Miss JK to the CID office without explaining the
purpose of the visit. The CID agent then obtained SPC PK’s
consent to perform the voice identification with Miss JK and
directed SPC PK not to interact with Miss JK during the
voice-identification procedure. The CID agent explained the
procedure to Miss JK and asked her “to listen very intently
and [to state whether she] actually … recognized any of the
voices as the alleged offender” after each segment. After
playing the first segment, Miss JK stated that she recog-
nized two out of the six voices as the “pictures she had in her
head of the voices that had touched her wrong.” Miss JK was
“confident” that one of the two voices was that of the perpe-
trator. For the second and third segments, Miss JK did not
“second-guess[] herself” in selecting Appellant’s voice.

   2 Miss JK reported that the alleged perpetrator had whispered
these two sentences.

                               5
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

    Following this voice identification, the convening author-
ity referred one charge of sexual abuse of a child to a general
court-martial. Before trial, Appellant sought to suppress
Miss JK’s voice identification and to compel the production
of an expert consultant in the field of audio forensic science
and voice identification.
    The military judge conducted an Article 39(a), UCMJ,
10 U.S.C. § 839(a) (2012), hearing on both motions. Appel-
lant’s proposed expert, Mr. EP, testified as an expert in voice
identification at the hearing. He generally noted that whis-
per identifications are less reliable than full voice identifica-
tions. In regard to Appellant’s case, Mr. EP expressed “sev-
eral concerns” with CID’s voice lineup and concluded that it
was “not reliable and … should not be used to prosecute or
convict somebody of a crime.” Following the Article 39(a),
UCMJ, hearing, the military judge summarily denied the
motion to suppress and the motion for an expert consultant.3
    At trial, the Government did not admit the voice lineup
itself or the accompanying audio into evidence, but the
court-martial received considerable evidence describing both
the lineup and its results. The Government introduced evi-
dence about the voice identification through three witnesses.
First, trial counsel elicited from Miss JK that she had identi-
fied Appellant’s voice during the lineup. Miss JK testified
that she knew it was Appellant because “he was the only
person in my house who had the girlish voice.” Miss JK tes-
tified that PFC BW, in contrast, had “a scratchy type of
voice.” Second, SPC PK testified that he witnessed the voice
lineup and no one told Miss JK whose voice to identify.
Third, the CID agent who conducted the voice lineup testi-
fied that: (1) Miss JK identified two voices in the first voice
segment and indicated that “these are the faces [she] imag-

   3 Four months after trial, the military judge indicated that he
did not have to enter findings of fact or conclusions of law with
respect to each motion because the Government did not admit the
voice lineup or the audio of the voice lineup into evidence. We
agree with the Army Court of Criminal Appeals that the military
judge erred in “tacit[ly] conclu[ding] that the voice-identification
dispute was moot” because “the government did present ample
testimony regarding the procedure and its results.” United States
v. Hendrix, 75 M.J. 704, 706 (A. Ct. Crim. App. 2016).

                                 6
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

ine[d] as being the ones that touched [her] wrong”; and
(2) for the second and third voice segments she chose the
same voice, identifying it as that of the person who “touched
[her] wrong.” The CID agent further indicated that Miss JK
was confident in her identification.
    In addition to the voice-identification evidence, both Miss
JK and Appellant testified about the night of the alleged in-
cident. Miss JK testified that on June 10, 2013, she went to
sleep around 8:30 p.m. She, at the age of ten, was taking
sleeping medicine at this time because of sleeping problems.
Miss JK testified that Appellant entered the bedroom and
asked, “Is your sister asleep?” Contrary to her earlier state-
ments, Miss JK testified that she could see Appellant be-
cause the kitchen light was on and her blinds were open,
and described him as having short, blond hair and being as
tall as her father. Miss JK testified that Appellant sat on the
side of her bed and told her that she could trust him. Then,
contrary to her earlier statements that she was inappropri-
ately touched over her clothing, Miss JK testified that Ap-
pellant “pulled down [her] pants and underwear,” placed his
hand on the inside of her underwear, “touched [her] private
area,” and moved “his hand up and down” for approximately
five to ten minutes. After Appellant stopped, he told Miss JK
“not to tell anyone,” pulled her pants up, and left the room.
Appellant testified that he never entered Miss JK’s bedroom
on the night of the incident. Nevertheless, the members con-
victed Appellant of one specification of sexual abuse of a
child.
   We will begin by examining whether the military judge
erred in denying an expert consultant before addressing
whether he erred in admitting the voice-identification evi-
dence.
                        II. Discussion

    We review a military judge’s decision denying a request
for an expert consultant for an abuse of discretion. United
States v. Lloyd, 69 M.J. 95, 99 (C.A.A.F. 2010). We also re-
view a military judge’s admission of evidence for an abuse of
discretion. United States v. Hills, 75 M.J. 350, 354 (C.A.A.F.
2016). This abuse of discretion standard is “a strict one, call-
ing for more than a mere difference of opinion”—“[t]he chal-

                               7
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

lenged action must be arbitrary, fanciful, clearly unreasona-
ble, or clearly erroneous.” Lloyd, 69 M.J. at 99 (citation omit-
ted) (internal quotation marks omitted). In this case, the
military judge provided no explanation for his decisions to
deny the expert consultant and to admit the evidence of the
voice identification. Therefore, the military judge’s decisions
are entitled to “less deference.” United States v. Flesher,
73 M.J. 303, 312 (C.A.A.F. 2014).
                    A. Expert Consultant
    We conclude that the military judge did not abuse his
discretion in denying Appellant’s request to have Mr. EP
serve as an expert consultant in the field of audio forensic
science and voice identification. In reaching this conclusion,
we note that regardless of his argument on appeal, Appel-
lant never requested that Mr. EP serve as an expert witness
at trial. Instead, he only sought Mr. EP as an expert con-
sultant.
    “An accused is entitled to an expert’s assistance before
trial to aid in the preparation of his defense upon a demon-
stration of necessity.” United States v. Bresnahan, 62 M.J.
137, 143 (C.A.A.F. 2005). To establish necessity, “an accused
must demonstrate something more than a mere possibility of
assistance from a requested expert.” United States v.
Gunkle, 55 M.J. 26, 31 (C.A.A.F. 2001) (citation omitted) (in-
ternal quotation marks omitted). Instead, the accused must
establish a reasonable probability “that (1) an expert would
be of assistance to the defense and (2) that denial of expert
assistance would result in a fundamentally unfair trial.”
United States v. Anderson, 68 M.J. 378, 383 (C.A.A.F. 2010)
(citation omitted). To establish that an expert would be of
assistance, “the accused must show (1) why the expert assis-
tance is needed; (2) what the expert assistance would ac-
complish for the accused; and (3) why the defense counsel
were unable to gather and present the evidence that the ex-
pert assistance would be able to develop.” Id. (citation omit-
ted) (internal quotation marks omitted).
   Simply stated, in the instant case, the record reflects
that Appellant failed to meet this burden of demonstrating
necessity. As part of our analysis, we note that Appellant did
receive some assistance from the requested expert when Mr.

                               8
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

EP testified at the Article 39(a), UCMJ, hearing about defi-
ciencies in the Government’s voice-identification procedure.
In light of this help, Appellant has not shown why additional
expert consultation was needed. Further, the defense had
other scholarly resources available to assist it in defending
against the voice-identification evidence.4 See United States
v. Kelly, 39 M.J. 235, 238 (C.M.A. 1994) (“Defense counsel
are expected to educate themselves to attain competence in
defending an issue presented in a particular case,” including
consulting “a number of primary and secondary materials.”).
Appellant has not shown why these scholarly works, or
works like them, were inadequate to prepare his defense.
Because Appellant failed to make a showing of necessity, we
conclude that the military judge did not abuse his discretion
in denying the motion for an expert consultant in the field of
audio forensic science and voice identification.
                    B. Voice Identification
    We next examine whether the military judge abused his
discretion when he admitted into evidence—over defense ob-
jection—the results of the voice lineup where Miss JK pur-
portedly identified Appellant as her assailant. We conclude
that the voice-identification evidence had no probative value
and that its admission was prejudicial.
    Turning first to the question of probative value, we note
that only relevant evidence is admissible at courts-martial.
See Military Rule of Evidence (M.R.E.) 402(a). Evidence that
has no probative value is not relevant and is therefore in-
admissible at trial. See M.R.E. 402(b) (“Irrelevant evidence
is not admissible.”); see also United States v. Clark, 535 F.3d
571, 579–80 (7th Cir. 2008) (holding that evidence with “no
probative force … was properly excluded”).
   In certain instances, a voice identification may have
“considerable probative value.” See United States v. Brown,
510 F.3d 57, 69 (1st Cir. 2007). However, the voice-lineup
evidence in Appellant’s case had no probative value as to

   4  See, e.g., Jason A. Cantone, “Do You Hear What I Hear?”:
Empirical Research on Earwitness Testimony, 17 Tex. Wesleyan L.
Rev. 123, 126 (2011); Lawrence M. Solan & Peter M. Tiersma,
Hearing Voices: Speaker Identification in Court, 54 Hastings L.J.
373, 380 (2003).

                               9
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

whether the sexual assault actually occurred, or if the sexu-
al assault did occur, whether Appellant was the person who
perpetrated that assault.
    We preliminarily note that it is difficult to discern a le-
gitimate investigative purpose for conducting a voice lineup
in this case after the victim had already identified Appel-
lant—whom she knew from social interactions at her home
on two separate occasions, to include the close personal in-
teraction of having Appellant braid her hair—as the person
who had sexually abused her. Certainly it would be highly
unusual—at a minimum—for law enforcement to conduct a
more traditional visual lineup in a case where a victim al-
ready had identified the perpetrator, the victim was familiar
with the perpetrator from prior social occasions, and the
perpetrator already had been charged with the offense. But
even assuming that the voice lineup in this case was not in-
tended to merely bolster the testimony of Miss JK by dress-
ing up her identification in scientific garb, the lineup was
not conducted in a manner that would assist the trier of fact
in deciding whether or not Appellant perpetrated the report-
ed sexual assault. We reach this conclusion for several rea-
sons.
    First, there were flaws in the selection of participants in
the voice lineup. Mr. EP, the voice-identification expert, pre-
sented unrebutted testimony that voice identifications
should “[a]bsolutely” use individuals with similar voices.
And yet, that did not happen here. The CID agent who as-
sembled the voice lineup was a novice with voice identifica-
tions. He selected six individuals without conducting any
screening of voices. This resulted in the selection of one in-
dividual with a speech impediment and another with a Ja-
maican accent. It also led to the CID agent using Appellant’s
“girlish voice” in the same voice segment as PFC BW’s
“scratchy” voice. Indeed, Miss JK recognized the differences
in the voices because she testified that some of the voices
sounded strange and that none of them sounded the same.5

   5 We note that the CCA found the “tone, cadence, and volume
of each voice to be remarkably similar to one another.” Hendrix,
75 M.J. at 706. However, this finding is unhelpful because it does
not establish that the voices themselves were similar. This is best

                                10
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

    Second, CID had the individuals who provided the voice
exemplars speak two sentences at a whisper and then, in the
same sound bite, repeat those same sentences at two in-
creasingly louder volumes. The record does not reflect any
legitimate investigatory purpose for this methodology. Fur-
ther, we note that (a) Miss JK only heard the alleged perpe-
trator speak in a whisper so it was unnecessary for her to
hear the louder exemplars, and (b) Miss JK already was fa-
miliar with Appellant’s spoken—rather than whispered—
voice and already had identified him as the perpetrator, so
the three back-to-back repetitions of the two sentences mere-
ly served to taint any purported identification Miss JK could
otherwise have made of the whispered voice she heard on
the night in question.
    Third and finally, during the motions hearing, the voice
expert raised a number of legitimate concerns about the
voice lineup employed in Appellant’s case. For example, the
CID agents, who did not have experience with voice lineups,
did not remove Appellant’s voice from the segments that also
included PFC BW’s voice. Additionally, the voice expert ob-
served that Miss JK’s identification was based on memory—
the voice lineup in Virginia occurred nine months after the
alleged sexual abuse occurred in Germany—and indicated
that “[m]emory is not something that serves us well with …
being able to identify somebody through their voice.” In fact,
the voice expert’s concerns led to his unrebutted opinion that
the voice lineup in Appellant’s case was “not reliable.”
    Because these circumstances demonstrate that the voice-
lineup evidence had no probative value in this case, we con-
clude that the military judge abused his discretion in admit-
ting it into evidence.6 Accordingly, we next turn our atten-

exemplified by the fact that the tone, volume, and cadence of a fe-
male speaker can also be remarkably similar to the tone, volume,
and cadence of a male speaker.
   6  Even if the voice-identification evidence had some minimal
probative value, it was inadmissible under M.R.E. 403 because
this minimal probative value was substantially outweighed by the
misimpression it left on the members about the usefulness and
importance of the voice identification. See M.R.E. 403 (providing
that relevant evidence may be excluded where “its probative value
is substantially outweighed by a danger of unfair prejudice … [or]

                                11
            United States v. Hendrix, No. 16-0731/AR
                      Opinion of the Court

tion to the issue of prejudice. See Article 59(a), UCMJ,
10 U.S.C. § 859(a) (2012).
    The erroneous admission of evidence is prejudicial when
it has a substantial influence on the members’ findings.
United States v. Norman, 74 M.J. 144, 150 (C.A.A.F. 2015).
“We evaluate prejudice from an erroneous evidentiary ruling
by weighing (1) the strength of the Government’s case,
(2) the strength of the defense case, (3) the materiality of the
evidence in question, and (4) the quality of the evidence in
question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999). After weighing these factors, we conclude that the
admission of the voice identification substantially influenced
the members’ findings.
    In regard to the strength of the Government’s case, we
conclude that it was weak both in regard to whether the in-
cident actually occurred, and if it did occur, whether Appel-
lant was the perpetrator. Turning initially to the question of
whether the sexual abuse actually happened, we begin by
noting that Miss JK was taking sleep medication when the
incident occurred. When discussing the incident with CID,
Miss JK stated that the incident “felt like” it was “a dream
or something” and that she was only “pretty sure” it was not
a dream.
    Next, Miss JK used the term “sexual assault” to describe
what happened, and the defense expert in clinical psycholo-
gy, child development, and the treatment of child sexual
abuse victims described this usage as being “extremely ir-
regular for a child” because children do not typically know
what the term “sexual assault” means. During cross-
examination, Miss JK disclosed that she learned about this
term prior to the alleged incident from a public service an-
nouncement on the Armed Forces Network. The defense ex-
pert further testified that it was “odd” that Miss JK altered
“core pieces of” her sexual abuse story because victims ordi-
narily do not change such details.

misleading the members”); cf. Perry v. New Hampshire, 565 U.S.
228, 247 (2012) (noting that “trial judges [may] exclude relevant
evidence if its probative value is substantially outweighed by its
prejudicial impact or potential for misleading the jury”).

                               12
           United States v. Hendrix, No. 16-0731/AR
                     Opinion of the Court

    And we finally observe that Miss JK did not divulge her
allegations of sexual abuse until she was seeking a means to
put a stop to the painful physical punishment being inflicted
upon her by her father. When evaluating these aspects of
the trial evidence, we conclude that the Government’s case
was weak with respect to whether the sexual assault even
occurred.
    Turning next to the identity of the perpetrator, we also
conclude that the Government’s case was weak. The most
important piece of evidence as to the identity of the perpe-
trator was the erroneously admitted evidence of Miss JK’s
voice identification. Absent the voice identification, the re-
maining evidence demonstrated that Miss JK’s statements
about her ability to see and identify the perpetrator on the
night of the incident varied greatly. Specifically, Miss JK
initially reported that she could not see the perpetrator be-
cause the room was “really dark.” But as time passed, Miss
JK testified that she could see Appellant at the time of the
sexual assault because the kitchen light was on and her
blinds were open. Finally, we note that there was no other
substantial evidence tying Appellant to this reported of-
fense. For example, the male DNA evidence introduced by
the Government at trial was minimal and inconsequential.
We therefore conclude that the Government’s case was weak
on two important facets of the case: whether the incident oc-
curred and whether Appellant was the perpetrator.
    Moreover, it is clear from the record that the voice-
identification evidence was vital to the Government’s case.
The Supreme Court has recognized that “identification tes-
timony is significant evidence,” Manson v. Brathwaite,
432 U.S. 98, 113 n.14 (1977) (citation omitted) (internal quo-
tation marks omitted) and, indeed, in the instant case trial
counsel treated Miss JK’s identification evidence as a signif-
icant component of the Government’s case. For example, at a
pretrial hearing, trial counsel described the voice-
identification evidence as “important evidence.” Further,
during opening statement, trial counsel underscored to the
panel members the importance of the identification evidence
by referring to Miss JK’s voice identification as the “last im-
portant detail.” Trial counsel then elicited evidence of the
voice identification through three witnesses. Trial counsel

                              13
             United States v. Hendrix, No. 16-0731/AR
                       Opinion of the Court

finally emphasized the importance of the voice identification
in findings argument by (1) pointing “[m]ost importantly” to
Miss JK’s recognition of Appellant’s voice in explaining why
Appellant was the perpetrator, and (2) defending the voice
identification in rebuttal argument. Trial counsel’s position
with respect to the voice identification demonstrates that it
was important evidence to the Government’s case.
    The materiality of the voice-lineup evidence is further
exemplified by the disparate conclusions reached by the in-
vestigating officer and the court-martial panel. At the Arti-
cle 32, UCMJ, hearing, the investigating officer declined to
recommend forwarding the charges under a reasonable
grounds standard. See Rule for Courts-Martial 405(j)(2)(H).
However, at trial, the panel voted to convict despite the
higher standard of proof—beyond a reasonable doubt. See
Article 51(c)(4), UCMJ, 10 U.S.C. § 851(c)(4) (2012). The rec-
ord indicates that the only significant difference between the
evidence presented at the Article 32, UCMJ, hearing and the
trial was Miss JK’s voice identification.7
   Based on these circumstances, we decline the appellate
government counsel’s invitation to view the voice-
identification evidence as being entirely inconsequential. In-
stead, we conclude that the erroneous admission of this evi-
dence substantially influenced the members’ findings—and
was therefore prejudicial—because of the Government’s
weak case and the importance of the voice-identification evi-
dence.

   7  We further observe that Miss JK’s voice identification was
presented as a definitive identification. Miss JK testified that she
“knew” the voice was Appellant’s because “he was the only person
in [her] house who had the girlish voice.” Also, the CID agent who
conducted the voice lineup described Miss JK as being “absolutely
sure” about her identification. The certainty of the voice identifica-
tion would have been persuasive to the members. See Young v.
Conway, 698 F.3d 69, 88 (2d Cir. 2012) (indicating that “jurors
may also erroneously have relied on certainty [of identification
testimony] as an indicator of accuracy”); United States v. Schiro,
679 F.3d 521, 543 (7th Cir. 2012) (Wood, J., dissenting) (“We can-
not ignore the power that a witness’s claim to be ‘100% sure’ may
have on a jury ….”); cf. Brathwaite, 432 U.S. at 115–16 (identify-
ing the level of certainty of an identification as an indicator of an
accurate identification).

                                 14
           United States v. Hendrix, No. 16-0731/AR
                     Opinion of the Court

                        III. Decision

    For the reasons discussed above, the military judge
abused his discretion in admitting the voice-lineup evidence
over the objection of defense counsel when it had no proba-
tive value and only served to bolster the complainant’s tes-
timony in an otherwise weak case. Therefore, the decision of
the United States Army Court of Criminal Appeals is re-
versed. The findings and sentence are set aside. The record
is returned to the Judge Advocate General of the Army and
a rehearing is authorized.

                             15


533 S.E.2d 60 (2000)
272 Ga. 540
AGAN
v.
STATE of Georgia et al.
No. S00A0461.
Supreme Court of Georgia.
July 5, 2000.
*61 Meadows, Ichter & Trigg, Michael J. Bowers, T. Joshua R. Archer, Atlanta, for appellant.
Thurbert E. Baker, Attorney General, Daniel M. Formby, John B. Ballard, Jr., Deputy Attorneys General, Oscar B. Fears III, William W. Banks, Jr., Assistant Attorneys General, for appellees.
BENHAM, Chief Justice.
The issue before us is whether, after a government agency has initiated proceedings to revoke the license of a regulated business for allegedly having an impermissible relationship with an individual in violation of a statute, the individual has standing to bring an independent declaratory judgment action questioning the constitutionality of the statute. In the case at bar, the trial court dismissed the individual's petition for declaratory judgment on the ground that the individual was not the proper party to challenge the statute and that any argument concerning the statute's constitutionality should be raised in the administrative action against the regulated business. We disagree and reverse the judgment entered by the trial court.
Appellant Ramsay Agan founded a mortgage lending company, Adana Mortgage Bankers, Inc. He transferred all the shares in the corporation to his wife in 1982, the same year he pleaded guilty to knowingly making false statements for the purpose of influencing the action of an FDIC-insured bank. 18 USC § 1014. In 1988, appellant was convicted of bribery for transferring funds denominated as campaign contributions to two DeKalb County commissioners in an attempt to gain their votes in favor of a zoning variance for his property in DeKalb County. See State v. Agan, 259 Ga. 541, 384 S.E.2d 863 (1989).
Five years after Agan's bribery conviction, the General Assembly passed OCGA § 7-1-1004(e) which prohibited the Georgia Department of Banking and Finance from issuing a license if the applicant or any director, officer, partner, agent, employee or ultimate equitable owner of 10 percent or more of the applicant had been convicted of a felony of moral turpitude. Effective July 1, 1998, OCGA § 7-1-1004(e) was amended to authorize the banking department to revoke a license if it found that the applicant or any director, officer, partner, agent, employee or 10 precent equitable owner thereof had been convicted of a felony involving moral turpitude. In December 1998, the department issued a notice of intent to revoke the annual license of Adana Mortgage Bankers; prior to Adana's requested administrative hearing, the department issued another notice of intent to revoke on the ground that appellant was a convicted felon and was serving as an employee or agent of Adana, in violation of OCGA § 7-1-1004(e).
Before an administrative hearing was held on either notice of intent to revoke, appellant filed a petition for declaratory and injunctive relief, asserting that the enforcement of OCGA § 7-1-1004(e) against Adana or any mortgage broker or lender for which appellant is a director, officer, partner, agent, or *62 employee or equitable owner of 10 percent or more prevented appellant from working in the mortgage lending or brokering business and was a violation of the ex post facto clauses of the state and federal constitutions because the statute inflicted upon him a greater punishment for his crimes than the law did at the time he was convicted. In his petition, appellant admitted he maintains an office at Adana Mortgage and serves as an advisor to his wife, expressly did not admit that he is an employee or agent of Adana Mortgage, and stated his desire to become a director, officer, partner, agent, employee, or ultimate equitable owner of 10 percent or more of Adana Mortgage. At a hearing on appellant's motion for preliminary injunction, the trial court granted the department's motion to dismiss the petition for declaratory relief on the ground that appellant was not a proper party to challenge the constitutionality of § 7-1-1004(e). This appeal followed.
1. "[T]he only prerequisite to attacking the constitutionality of a statute `is a showing that it is hurtful to the attacker.' [Cit.]" Bo Fancy Productions v. Rabun County Bd. of Commrs., 267 Ga. 341(2)(a), 478 S.E.2d 373 (1996). A party has standing to challenge the constitutionality of a statute if the statute adversely impacts that party's rights. Ambles v. State, 259 Ga. 406(1), 383 S.E.2d 555 (1989).[1] In the case at bar, appellant is a convicted felon whose relationship with a regulated lending institution can serve as the basis for the institution's loss of license, making it impossible for him to work or operate in the industry. Appellant further argues that he wishes to gain an equitable ownership of 10 percent or more in a lending institution, a goal that is hindered by OCGA § 7-1-1004(e), which authorizes the revocation of a lending institution's license if a convicted felon is an equitable owner of 10 percent or more. We conclude that appellant has established that the statute is sufficiently hurtful to him to give him standing to raise a constitutional challenge to the statute.
2. We must also examine whether appellant may bring a declaratory judgment action.
The Declaratory Judgment Act provides a means by which a superior court "simply declares the rights of the parties or expresses [its] opinion ... on a question of law, without ordering anything to be done...." [Cit.] The purpose of the Act is "to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations." [Cit.] The superior court is authorized to enter a declaratory judgment upon petition therefor in cases of actual controversy (OCGA § 9-4-2(a)), and "to determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations." [Cit.]
Baker v. City of Marietta, 271 Ga. 210(1), 518 S.E.2d 879 (1999). Inasmuch as there exist "circumstances showing (a) necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to his alleged rights and which if taken without direction might reasonably jeopardize his interest" (id., at 214, 518 S.E.2d 879), there exists a justiciable controversy resolvable by a declaratory judgment.
3. Lastly, we must determine if appellant may bring the declaratory judgment while an administrative action is pending against the lending institution with which he is alleged to have an impermissible relationship under OCGA § 7-1-1004(e). Where a constitutional challenge can be raised in an administrative proceeding, we have not permitted a party to the administrative proceedings to disrupt the administrative proceedings *63 by seeking a declaratory judgment on constitutional grounds while the party is engaged in administrative proceedings which would be affected by the ruling on the petition for declaratory judgment. See Wallace v. State Bar of Ga., 268 Ga. 166(2), 486 S.E.2d 165 (1997); State Health Planning Agency v. Coastal Empire Rehabilitation Hosp., 261 Ga. 832, 412 S.E.2d 532 (1992). However, appellant was not a party to the administrative proceedings initiated by the Georgia Department of Banking and Finance against Adana Mortgage Bankers. Consequently, he is not barred from bringing an action for declaratory judgment, and the trial court erred in ruling otherwise.
Judgment reversed.
All the Justices concur, except SEARS and HINES, JJ., who dissent.
HINES, Justice, dissenting.
I respectfully dissent, as I believe this case must be transferred to the Court of Appeals.
It is this Court's duty to raise and resolve questions of its jurisdiction whenever there is any doubt concerning whether such jurisdiction exists. Rowland v. State, 264 Ga. 872(1), 452 S.E.2d 756 (1995). Agan asserts that this Court rather than the Court of Appeals has jurisdiction because he seeks equitable relief. Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(2). However, the relief sought does not control which appellate court has jurisdiction; appellate equity jurisdiction is determined by the primary issue raised on appeal, and if there is no substantive issue regarding the propriety of equitable relief granted or rejected, the appeal does not lie in this Court. Warren v. Board of Regents, 272 Ga. 142, 527 S.E.2d 563 (2000). Here, the trial court denied a preliminary injunction, but that decision was clearly ancillary to the court's determination that Agan did not have standing to challenge the constitutionality of OCGA § 7-1-1004(e), and the denial of the injunction therefore does not serve as a basis for this Court's equity jurisdiction. See Redfearn v. Huntcliff Homes Assn., 271 Ga. 745, 748(2), 524 S.E.2d 464 (1999); Pittman v. Harbin Clinic Prof. Assn., 263 Ga. 66, 428 S.E.2d 328 (1993). As the grant or denial of equitable relief is not presented as a matter for appellate review, this appeal is not within this Court's equity jurisdiction.
Nor is this case within this Court's jurisdiction over "cases in which the constitutionality of a law ... has been drawn in question." Ga. Const. of 1983, Art. VI, Sec. VI, Par. II(1). "[T]his Court does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court. Senase v. State, 258 Ga. 592, 372 S.E.2d 813 (1988)." Atlanta Indep. School Sys. v. Lane, 266 Ga. 657, 658(1), 469 S.E.2d 22 (1996). While Agan has asserted that OCGA § 7-1-1004(e) is unconstitutional, the trial court did not reach that issue and there is no ruling on the matter for this Court to review. "[W]e will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point [cit.]...." Santana v. Ga. Power Co., 269 Ga. 127, 129(6), 498 S.E.2d 521 (1998). See also Wilson v. State, 212 Ga. 157, 158(1)(a), 91 S.E.2d 16 (1955). For a party to include in pleadings a challenge to the constitutionality of a statute which that party has no standing to challenge does not create an "issue" of the constitutionality of the statute, and a ruling that the party lacks standing serves as no basis for review under this Court's jurisdiction over cases in which the constitutionality of a statute has been called into question. See Warren, supra at 144, 527 S.E.2d 563. See also In the Interest of I. B., 219 Ga.App. 268, 464 S.E.2d 865 (1995) (Appeal was properly transferred to the Court of Appeals when the trial court had determined that the plaintiff did not have standing to challenge a statute because its application to him had become moot.).
As this case does not present any basis for appellate jurisdiction in this Court, it must be transferred to the Court of Appeals.
I am authorized to state that Justice SEARS joins in this dissent.
NOTES
[1]  The statute in question need not affect a constitutionally-protected right in order to give the statute's attacker standing to question the statute's constitutionality. See, e.g., Ambles v. State, supra, 259 Ga. at 408, 383 S.E.2d 555, where we held that a statute's adverse impact on the State's ability to present evidence of child molestation gave the State standing to challenge the constitutionality of the statute.


718 F.2d 730
M.R. FERGUSON, Petitioner-Appellant,v.W.J. ESTELLE, Jr., Director, Texas Department ofCorrections, Respondent- Appellee.Robert Wayne FAULK, Petitioner-Appellant,v.W.J. ESTELLE, Jr., Director, Texas Department ofCorrections, Respondent- Appellee.
Nos. 82-2441, 82-2442.
United States Court of Appeals,Fifth Circuit.
Oct. 31, 1983.

Goodwin, Goodwin & Buchanan, Paul N. Buchanan, Joe B. Goodwin, Beaumont, Tex., for petitioners-appellants.
Douglas M. Becker, Leslie A. Benitez, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM, BROWN and JOHNSON, Circuit Judges.
PER CURIAM:

1
Robert Wayne Faulk and M.R. Ferguson were convicted of riot by arson in violation of the Texas Anti-Riot Law, V.T.C.A., Penal Code Sec. 42.02 (1974).  They petitioned for federal habeas corpus relief, charging that the statute is invalid on its face for overbreadth and vagueness, and because it imposes vicarious criminal responsibility on a basis too attenuated to satisfy constitutional concepts of personal guilt.  The district court sustained the statute in all of its aspects, against all of their challenges.  We affirm its denial of the writ of habeas corpus.

I.

2
Faulk and Ferguson's convictions for riot by arson stem from their participation in the union/antiunion melee at the Cross Construction Company in Port Arthur, Texas, see Scott v. Moore, 680 F.2d 979 (5th Cir.1982) (en banc), rev'd sub nom.  Carpenters, Local 610 v. Scott, --- U.S. ----, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983).  According to the opinion of the Texas Court of Criminal Appeals,1 about fifty men armed with 2 X 4's, pipes, bottles, and rocks "invaded" the Cross job site, destroyed company property and attacked Cross employees.  About twenty of the rioters turned over a thirty-foot office trailer located on the site, doused it with gasoline, and set it afire.  The trailer was completely destroyed.  Ferguson and Faulk were identified as members of the group which invaded the job site.  Ferguson was seen carrying a club;  Faulk was identified by a battered Cross employee as one of his assailants.   Faulk v. State, 608 S.W.2d 625, 627-29 (Tex.Cr.App.1980).  Neither was identified as a direct participant in the act of arson.

3
The statute under which Faulk and Ferguson were convicted provides that:

4
(a) For the purpose of this section, "riot" means the assemblage of seven or more persons resulting in conduct which:

5
(1) creates an immediate danger of damage to property or injury to persons; ...

6
(b) A person commits an offense if he knowingly participates in a riot.

7
(c) It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection (a) of this section, the actor retired from the assembly.

8
* * *

9
* * *

10
(e) Except as provided in Subsection (f) of this section, an offense under this section is a Class B misdemeanor.

11
(f) An offense under this section is an offense of the same classification as any offense of a higher grade committed by anyone engaged in the riot if the offense was:

12
(1) in the furtherance of the purpose of the assembly;  or

13
(2) an offense which should have been anticipated as a result of the assembly.

14
V.T.C.A., Penal Code Sec. 42.02.  Subsection (f) was used to hold them responsible for the act of arson, a second-degree felony carrying a penalty of two to twenty years imprisonment with possibility of a fine not to exceed $10,000.2   V.T.C.A., Penal Code Secs. 12.33, 28.02 (1974).  Faulk was sentenced to five years in prison, Ferguson to three.

II.

15
Faulk and Ferguson charge that subsection (a)(1) is unconstitutional on its face3 for vagueness and overbreadth chilling free exercise of the first amendment right to peaceable assembly.4   Analysis begins with their overbreadth claim.  Flipside, 102 S.Ct. at 1190.

A.

16
A statute is unconstitutionally overbroad, if it, as written and as construed by the authoritative state court,5 reaches a substantial amount of constitutionally protected conduct as well as unprotected conduct.   Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830;  Ferber, 102 S.Ct. at 3361.  The Court has counseled caution in the use of overbreadth principles to invalidate state criminal laws aimed at controlling harmful conduct.

17
[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.  Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect--at best a prediction--cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe.  Cf. Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 966-67, 22 L.Ed.2d 176 (1969).  To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

18
Broadrick, 93 S.Ct. at 2917-18.  The significance of a state's criminalization of its proscriptions to an examination of the statute's overbreadth was recently elucidated by the Court:  "[While] the penalty to be imposed is relevant in determining whether demonstrable overbreadth is substantial, ... the fact that a criminal prohibition is involved does not obviate the need for the inquiry or a priori warrant a finding of substantial overbreadth."   Ferber, 102 S.Ct. at 3363.

19
With these principles in mind, we turn to the petitioners' challenge to section 42.02 for overbreadth.  Faulk and Ferguson claim that the ambiguities in the operative elements of the definition threaten to ensnare innocents unlucky enough to be on the scene of a precipitous outbreak of violence.6   Focusing on the intent requirement of section 42.02(c), they charge that the statute criminalizes a knowing participation in an initially peaceable assembly that subsequently results in conduct creating an immediate danger of damage to persons or property.7   In addition, they charge that the statute's definition of riot as "conduct ... creat[ing] an immediate danger of damage to property or injury to persons" is too imprecisely drawn to allow a participant to know when demonstrative conduct passes from a lawful, peaceable stage to a riot.

20
We think that the construction given to section 42.02(a)(1) by the Texas Court of Criminal Appeals should alleviate the first of the petitioners' concerns.  In its consideration of their charges on review of their convictions, that Court held that section 42.02(a)(1), read in conjunction with the intent requirement of section 42.02(c), proscribes only an "actor['s] participat[ion] in [an] assemblage knowing that it is resulting in conduct creating an immediate danger of damage to property or injury to persons," Faulk, 608 S.W.2d at 630 (emphasis added).  The Court held that the statute requires proof that the defendant "knowingly act[ed] with those so assembled in creating an immediate danger of damage," id. at 632 (emphasis added);  it noted that the exculpatory provisions of section 42.02(d) would "provide[ ] a defense to one who participates in a lawful assembly which ultimately becomes unlawful, if he retires from the assembly when one of those assembled manifests an intent to engage in unlawful conduct," id. at 631.  Its adjustment of the statute's mens rea requirement denies application of the law to members of an assembly who do not take part in the group's actions creating an imminent threat of violence.  Mere presence at the scene of a riot will not, under its interpretation, suffice to support a conviction.  So construed, section 42.02(a)(1) is "relieve[d] ... of the objection that it punishes without warning an offense of which the accused was unaware," Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945) (plurality opinion), cited with approval in Colautti v. Franklin, 439 U.S. 379, 99 S.Ct. 675, 685 n. 13, 58 L.Ed.2d 596 (1979).  We conclude that the scienter element of section 42.02, as interpreted by the Texas Court of Criminal Appeals, has been sufficiently narrowed in its sweep to eliminate its potential for substantial impairment of the protected right of peaceable assembly.

21
The petitioners also find ambiguity in the statute's description of its prohibited acts as those "creat[ing] an immediate danger of damage to property or injury to persons."    They contend that the phrase gives participants in an assembly no concrete measure by which they can evaluate the lawfulness of the group's activities, and so, in its uncertainty, chills their exercise of their constitutional rights.  There are inherent limitations in the precision with which concepts can be conveyed by the English language.  Overbreadth analysis does not demand perfect exactness;  it does not demand that a law be striken for marginal prospects of unconstitutional application.  That some limited degree of uncertainty inheres in a statute's phrase does not require that the statute be denied all application.

22
The dictionary defines "immediate" as "acting or being without the intervention of another object, cause or agency:  direct, proximate;  ...  occurring, acting or accomplished without loss of time:  made or due at once:  instant," Webster's Third New International Dictionary 1129 (4th ed. 1976).  In the case law, the notion of "immediate danger" has been equated with "clear and present danger," Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 905, 84 L.Ed. 1213 (1940),8 to connote activity "directed to inciting or producing imminent lawless action and ... likely to incite or produce such action," Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969).  We think that, so understood, the phrase "immediate danger" is sufficiently clear to avoid a substantial impairment of first amendment rights.  Should impairment occur, Justice Holmes' solution will suffice:  "If there is any difficulty, which we are far from intimating, it will be time enough to consider it when raised by someone whom it concerns."   United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 169, 74 L.Ed. 508 (1930).

B.

23
Ferguson and Faulk urge us to hold section 42.02 unconstitutionally vague on its face, for the same ambiguities on which they based their allegations of overbreadth.  The petitioners do not have standing to press this challenge.  A facial challenge for vagueness is appropriate only on an allegation that the law is vague " 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'   Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971).  Such a provision simply has no core."   Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605 (1974);  accord, Kolender v. Lawson, --- U.S. ----, ----, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (Justice White, dissenting).  The petitioners do not claim that the law is inherently standardless, enforceable only on the exercise of an unlimited, and hence arbitrary, discretion vested in the state.  They complain, rather, that the statute is imprecise.  But a petitioner will not be permitted to challenge a statute for imprecision if his own conduct is clearly within the core of proscribed conduct.  Such a petitioner has no standing to complain about the vagueness of a law as applied to the conduct of others.    Kolender, at ----, 103 S.Ct. at 1865 (Justice White, dissenting);  Flipside, 102 S.Ct. at 1192.  The petitioners have not contended that section 42.02(a)(1) failed to give them fair notice that their conduct was forbidden by the statute, United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954).  They have no standing to litigate the vagueness argument they advance.

III.

24
In their final challenge to their convictions, the petitioners charge that section 42.02(f) is unconstitutional on its face because it imposes criminal responsibility9 for the acts of another in the absence of a relationship between the defendant and the criminal conduct sufficiently substantial to satisfy the due process clause.

25
An explanation of the operation of subsection (f) is a necessary predicate to analysis of its constitutionality.  By its terms, the provision comes into play only when the defendant has been found to be in violation of one of the substantive provisions of subsection (a).  Upon a determination that the defendant has committed the crime of riot, he becomes susceptible, under the terms of subsection (f), to imposition of vicarious responsibility for the crimes of a greater degree committed by other participants in the riot, either in furtherance of the purpose of the assembly or which should have been anticipated as a result of the assembly.

26
The due process constraints on attribution of vicarious criminal responsibility were explored in Scales v. United States, 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961).  Imputation of guilt for the acts of another was determined to be consonant with the principle of personal guilt so long as the defendant actively and knowingly participated in the group engaged in criminal conduct, intending to contribute to the success of its illegal activities.  Id. at 1485-86.  The critical element in Scale's analysis was the existence of a community of illicit intent between the individual held responsible for the criminal acts of others, and the actual perpetrators of those crimes.  That shared purpose to achieve jointly held illegal aims is the common thread among the diverse doctrines of vicarious criminal responsibility, see Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946) (conspiracy);  Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 769-70, 93 L.Ed. 919 (1949) (complicity);  United States v. Elliott, 571 F.2d 880, 903-04 (5th Cir.1978) (RICO enterprise liability).

27
We think that, although the Texas Anti-Riot law is in some aspects doctrinely dissimilar from the more familiar forms of vicarious criminal responsibility, the critical element of a shared illicit intent predicate to the constitutional operation of subsection (f) is present in the mens rea element of section 42.02(a)'s substantive offenses.  As we have explained, see ante at 733-734, the offense of riot incorporates a determination that the defendant acted with an assemblage of seven or more persons, knowing that the conduct of the assembly was creating an immediate danger of damage to property or injury to persons.  That determination meets the constitutional requisites spelled out in Scales, 81 S.Ct. at 1845-46, of active participation with others toward the achievement of the ends recognized to be illegal.

28
The petitioners, however, suggest that subsection (f) is fatally flawed in that it allows imposition of vicarious responsibility either on a showing that the act of another was in furtherance of the purpose of the assembly or was an act which should have been anticipated as a result of the assembly.  They contend both elements to be necessary in order to ensure that a participant in a joint illegal enterprise is not charged with responsibility for an act not reasonably foreseeable as a consequence of the group's wrongful purpose.  We think their concerns, while not wholly unwarranted, do not require a determination that subsection (f) is in all circumstances without valid application.  The phrase "in furtherance of the purpose of the assembly" parallels the phrase "in furtherance of the purpose of the conspiracy" held in Pinkerton, 66 S.Ct. at 1183-84, to provide, in conjunction with the finding of the requisite shared intent, adequate basis for the vicarious responsibility of one conspirator for the crimes of another.    Pinkerton interpreted that phrase to imply that the crime in question was "within the scope of the unlawful project [and] was ... a part of the ramifications of the plan reasonably foresee[able] as a necessary or natural consequence of the unlawful agreement," id. at 1184.  Both aspects inhere in the phrase's logical and usual meaning.  If, on the facts of a particular case, it should appear that either is absent, an important question would arise, Pinkerton, 66 S.Ct. at 1184;  see United States v. Dickerson, 508 F.2d 1216, 1218 (2d Cir.1975);  Norris v. United States, 152 F.2d 808, 809 (5th Cir.1946), cert. denied, 328 U.S. 850, 66 S.Ct. 1118, 90 L.Ed. 1623 (1946).  But the petitioners have not suggested that theirs is such a case, and they are without standing to raise the potential problems of others.

IV.

29
The district court's denial of the writ of habeas corpus is affirmed.

30
AFFIRMED.

1
 Apparently because they challenge only the facial validity of the statute, the petitioners did not file the records of their state proceedings in support of their federal action.  Our knowledge of the facts of their cases is limited to the facts stated in the opinion of the Texas Court of Criminal Appeals affirming their convictions

2
 The penalty for simple riot under subsection (e) would have been imprisonment for not more than 180 days, or a fine of up to $1000, or both.  V.T.C.A., Penal Code Sec. 12.22 (1974)

3
 "A 'facial challenge,' in this context, means a claim that the law is 'invalid in toto--and therefore incapable of any application.'   Steffel v. Thompson, 415 U.S. 452, 474, 94 S.Ct. 1209-1233, 39 L.Ed.2d 505 (1974)."   Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 1192, 71 L.Ed.2d 362 (1982)

4
 Overbreadth analysis, though most often applied in the context of infringements on the right of free speech, is also proper in the context of the closely associated first amendment right of association.   Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 835, 63 L.Ed.2d 73 (1980).  Indeed, the origins of the doctrine lie in an examination of a state statute restricting expressive associational activity.   Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940)

5
 In evaluating the facial constitutionality of a state statute, a federal court is bound by the constructions placed on that statute by state court decisions.    New York v. Ferber, 457 U.S. 747, 749, 769 n. 24, 102 S.Ct. 3348, 3349, 3361 n. 24, 73 L.Ed.2d 1113;  Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972)

6
 Our analysis of the petitioners' charge of overbreadth is, by virtue of the nature of that challenge, entwined with their allegations of vagueness.  As the Supreme Court recently observed, "[t]o [the] extent [that a law's overbreadth is attributed to its alleged ambiguity], the vagueness of the law affects overbreadth analysis.  The [Supreme] Court has long recognized that ambiguous meanings cause citizens to 'steer far wider of the unlawful zone ... than if the boundaries of the forbidden areas were clearly marked.' "    Flipside, 102 S.Ct. at 1160 n. 6;  see Tribe, American Constitutional Law Sec. 12-28 (noting that vagueness and overbreadth may intersect where a statute is challenged for ambiguities threatening to engulf activities protected by the first amendment)

7
 Their paradigm is a peaceful demonstration during which a participant, of his own accord and wholly contrary to the group's pre-demonstration pact of nonviolence, pulls out a Molotov cocktail:  the petitioners contend that under Sec. 42.02(a)(1), as written and construed, all of the marchers would be guilty of riot as soon as their member threatens to toss his bomb

8
 "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the state to prevent or punish is obvious."    Ibid

9
 The state asserts and the district court concluded that Sec. 42.02(f) is a penalty enhancement provision.  We disagree, for three reasons.  First, the plain words of the statute provide that the offense of riot "is an offense of the same classification as any offense of a higher grade committed by anyone engaged in the riot," ibid.  (emphasis added), instead of "shall be punished as any offense of a higher grade committed by anyone engaged in the riot."    Second, the Texas Court of Criminal Appeals construed the provision as imposing criminal responsibility on a member of a riotous assembly for the acts of other members of the group.   Faulk, 608 S.W.2d at 629.  Third, the petitioners were charged and convicted of the felony offense of riot by arson, not of the misdemeanor of riot with punishment to be assessed as a second-degree felony.  The adequacy of the provision must, therefore, be read against the constitutional standards constraining the imposition of criminal responsibility for the acts of another