United States v. Palacios Cueto ( 2021 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 39815
________________________
UNITED STATES
Appellee
v.
Manuel PALACIOS CUETO
Airman First Class (E-3), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 18 May 2021
________________________
Military Judge: Matthew N. McCall.
Sentence: Sentence adjudged on 24 August 2019 by GCM convened at
Hanscom Air Force Base, Massachusetts. Sentence entered by military
judge on 15 October 2019: Bad-conduct discharge and reduction to E-1.
For Appellant: Major Amanda E. Dermady, USAF.
For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major John P. Patera, USAF; Captain
Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.
Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military
Judges.
Judge RICHARDSON delivered the opinion of the court, in which Senior
Judge POSCH joined. Judge MEGINLEY filed a separate opinion dis-
senting in part and in the result.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
________________________
United States v. Palacios Cueto, No. ACM 39815
RICHARDSON, Judge:
A general court-martial comprised of officer and enlisted members con-
victed Appellant, contrary to his pleas, of two specifications of abusive sexual
contact in violation of Article 120, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 920. 1,2 The court-martial sentenced Appellant to a bad-conduct dis-
charge, to perform hard labor without confinement for 90 days, and reduction
to the grade of E-1. The convening authority disapproved the adjudged hard
labor without confinement, and took no additional action on the sentence. 3
Appellant raises eight issues on appeal: (1) whether his convictions for a
kiss on the lips and a touch of the stomach are factually and legally sufficient;
(2) whether his due process rights were violated when the Government argued
the victim was incapable of consenting to a kiss due to impairment by alcohol
when Appellant was charged with causing bodily harm; (3) whether the mili-
tary judge erred by denying the panel members’ request to review Appellant’s
statements to investigators; (4) whether the military judge erred by denying
the Defense challenge for cause of a panel member; (5) whether Appellant’s
trial defense counsel were ineffective; (6) whether trial counsel committed
prosecutorial misconduct when stating that they represented “the pursuit of
justice” and argued that justice would only be served if Appellant was convicted
and adjudged a sufficient punishment; (7) whether the record of trial is incom-
plete; and (8) whether the cumulative-error doctrine requires relief. Issue (7)
was resolved before Appellant submitted his reply brief. 4 We have carefully
considered issue (4) and find that it does not warrant further discussion or
relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Based on
1 All references in this opinion to the punitive articles of the Uniform Code of Military
Justice (UCMJ) are to the Manual for Courts-Martial, United States (2016 ed.) (2016
MCM). The charges and specifications were referred to trial after 1 January 2019; as
such, all other references to the UCMJ, Military Rules of Evidence, and Rules for
Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019
ed.). See Exec. Order 13,825, §§ 3 and 5, 83 Fed. Reg. 9889, 9890 (8 Mar. 2018).
2 Appellant was acquitted of one specification of sexual assault, also charged as a vio-
lation of Article 120, UCMJ.
3 Consistent with our respective opinions in United States v. Barrick, No. ACM S32579,
2020 CCA LEXIS 346 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.), we find no error
in the convening authority’s decision to “take no further action on the sentence in this
case.”
4 We granted the Government’s motion to attach documents reflecting Appellant’s
counsel’s receipt of items that had been missing from its copy of the record of trial.
2
United States v. Palacios Cueto, No. ACM 39815
our resolution of the remaining issues, we find no merit to issue (8). 5 Finding
no error that has materially prejudiced Appellant’s substantial rights, we af-
firm the findings and sentence.
I. BACKGROUND
The conduct at issue in Appellant’s court-martial arose during several
hours Appellant spent with MT over Memorial Day weekend in 2018.
Appellant and MT had known each other for about three months after
meeting in their dorm building on Hanscom Air Force Base, Massachusetts.
They both spoke Spanish and grew up outside the United States. They were
older than most Airmen of their rank. MT often rejected Appellant’s invitations
to socialize with her, and they were not close friends.
Over the long weekend, MT wanted to eat at a Honduran restaurant in
Boston, about a 40-minute drive from the base. She invited Appellant because
she wanted company, and she wanted someone who could parallel park her
car. Appellant accepted and joined her on the outing.
After dinner, they went briefly to one bar before going to another. At the
second bar, MT consumed about five vodka drinks. They stayed at the second
bar between two and four hours, until it closed. MT felt drunk at this point;
Appellant may have had drinks at dinner and at a bar, but was not drunk.
Appellant drove them back to base, and they decided to keep drinking. After
arriving at their dorm, they went to their own rooms; MT changed into shorts,
and Appellant got a bottle of pisco. 6 They met back up, and Appellant drove to
the back of the “BX,” where they were “just hanging out” in the car. Next he
drove to the back of the Civil Engineer (CE) building and parked. MT sat on
the roof of her car with her legs dangling through the sunroof. Appellant was
passing MT pisco shots through the sunroof opening; MT drank five-to-six
shots. MT did not know whether Appellant drank any of the pisco. At one point,
Appellant rubbed MT’s legs, prompting MT to ask him why he was doing that.
He responded that he “miss[ed] touching a woman.” MT told him to stop and
he did.
MT did not remember leaving the CE area and returning to her dorm. How-
ever, the dorm-building cameras captured Appellant and MT walking through
the dayroom, continuing down the hallway to MT’s room, then entering MT’s
5 We will set aside the findings or sentence, as appropriate, if the cumulative effect of
all plain and preserved errors denied an appellant a fair trial. United States v. Pope,
69 M.J. 328, 335 (C.A.A.F. 2011). “Assertions of error without merit are not sufficient
to invoke this doctrine.” United States v. Gray, 51 M.J. 1, 61 (C.A.A.F. 1999).
6 MT testified pisco is a hard liquor similar to vodka.
3
United States v. Palacios Cueto, No. ACM 39815
room. Leading to the dayroom, the first video shows Appellant guiding MT for-
ward, walking next to her with his hand on her back or shoulder and his other
hand holding her hand (her arm was raised parallel to the ground). The video
of the dayroom shows MT attempting to walk in front of Appellant to enter the
main part of the dayroom instead of walking straight through, but Appellant
stayed at her side, and she continued moving in the original direction. She
stopped and bent over at the waist. It appeared she either needed Appellant’s
assistance to keep from falling over, or she was trying to get around and walk
past him; a pillar obscures the view somewhat. Appellant helped MT stand
upright again. MT moved past Appellant, continuing in the original direction,
then fell over onto her back with her arms bent and hands up near her head.
Appellant tripped over MT and fell to the ground face down, with his legs over
MT’s torso. Appellant got up on his feet, but MT stayed motionless. Appellant
adjusted a cross-body bag he was wearing, leaned over MT with his hands be-
low MT’s armpits, and kissed her on the lips. MT then moved and pushed him
away with her hands. Appellant helped MT to her feet. MT struggled to remain
standing as she was very unsteady on her feet. The pillar again obscures the
view of what occurred at this point. Then they continued to walk through the
dayroom.
The second video shows Appellant and MT walking down the dorm hallway.
Appellant was positioned behind MT, with his legs on either side of her legs.
Appellant’s right arm was over her right shoulder and his left arm was holding
her left arm, then shifted to around her torso. When they arrived at MT’s room,
Appellant was still holding MT from behind and was leaning his head over her
shoulder. MT leaned with both her hands against the door, then moved to the
side, then moved again where she was facing the camera and can be seen look-
ing through her purse. She turned towards the door, then turned again, away
from the camera. During the two minutes they were outside her door, Appel-
lant was either next to MT or directly behind and touching MT with his hands
or body, sometimes with his head over her shoulder. Appellant apparently
opened the door, and MT walked in, followed by Appellant. The time on the
video was “07:29,” which was generally consistent with other evidence about
the time that morning.
MT testified to her memory of the events captured on the videos. She re-
called that she was trying to put her key in her door, and finally did. She re-
membered entering her dorm room, explaining, “[I]n my head – in the back of
my head, I was by myself.” Regarding the earlier events, MT needed her
memory refreshed. After the Government played the video recordings during
her testimony, MT explained that she also remembered some of the dayroom-
portion of the evening. She testified she remembered Appellant kissing her on
the lips, and that she did not consent. She said she was pulling away from him
because she “didn’t want to get touched by him.” Unlike when she said no to
4
United States v. Palacios Cueto, No. ACM 39815
Appellant touching her legs in the car, she said she was too intoxicated to “de-
fend” herself. She did not remember what happened behind the pillar, or being
held by Appellant leading up to her room, even after seeing the video.
MT testified Appellant had never been in her dorm room before, and that
she thought she entered her room alone. She noticed Appellant was in her room
when she was using the toilet: “I don’t know what he was trying to do, but he
went inside my restroom while I was urinating, he . . . . saw me while I had my
underwear down[,] . . . . [a]nd then he left.” She testified that she was very
confused, and soon after using the toilet she went to the bed and lay down, still
wearing her shirt, shorts, and underwear. She did not see him lying on the bed.
MT testified the last thing she remembered feeling was being touched on her
stomach, adding “[i]t was very, very blurry.”
MT’s next memory is several hours later, when she awoke to Appellant in
her bed, dressed only in his underwear briefs. She confronted him about being
in her room. She asked Appellant if he violated her, and he denied touching
her. She also confronted him about walking in on her when she was on the
toilet, and did not accept his explanation that he was just checking to see that
the door was locked. She told him to leave her room, and he did. The video
shows Appellant walked shirtless from MT’s room back in the direction of the
dayroom at “13:56” that afternoon.
MT testified she felt disgusted, dirty, and used. She felt sharp pain in her
vaginal area, a sensation that was not there the day before. Thinking Appel-
lant had sexually assaulted her, MT went to his room to return his shirt and
confront him. She told him she was in pain in her genital area, she “needed to
get help because [she] felt destroyed as a person, like, broken,” and they “can’t
be in the same place anymore.” Appellant denied that anything happened. MT
directly asked Appellant whether he intended to have sex with her. MT testi-
fied as to Appellant’s response, “Yes, I intended having [sic] sex with you. But
as soon as you passed out I said no, I’m not going to touch you anymore.” MT
returned to her room. MT testified she vomited that day, sometime after she
woke up and not before.
Appellant sent MT broad, deep apologies via text message. 7 For example,
in one text he said to MT, “I do not expect that one day to another you will
recover from this, forgive me,” and in another he said, “I truly regret this, I
never meant to hurt you, I am sorry.” He also said she was “free to report” him
and acknowledged his “mistake” but did not admit to any act in particular.
Appellant also sent MT information about the base Sexual Assault Response
7 The texts were written in Spanish. Photos of the texts and a translation into English
were entered into evidence.
5
United States v. Palacios Cueto, No. ACM 39815
Coordinator (SARC). MT described it as “this sexual assault picture of the
SARC numbers to call.”
Appellant contacted his first sergeant to talk about what happened earlier
that day. Appellant told him he had been out with a female friend the night
before, drinking and hanging out in the dorms. The first sergeant testified,
“[Appellant] mentioned something about that they had been kissing.” Appel-
lant said he helped her back to her room and went into the dorm bathroom to
make sure the suite-mate door was locked. He also said she threw up, and he
stayed to help clean the vomit. He said MT fell asleep as he continued to clean
the vomit, then he got into bed with her and went to sleep. The first sergeant
read Appellant his rights under Article 31, UCMJ, 10 U.S.C. § 831, from a card,
in case Appellant was admitting to sexual assault. Appellant denied commit-
ting a sexual assault and “did not seem to want a lawyer.” The first sergeant
thought Appellant wanted mentorship and was not admitting a crime.
MT called the SARC the same day as the alleged offenses and went to speak
with the SARC in person on the next duty day. After speaking to the SARC,
MT went to the hospital where she underwent a sexual assault examination.
The examination revealed some redness, or erythema, to part of the vagina,
the posterior fourchette. The nurse who conducted the exam testified, “So usu-
ally you see redness when you have friction, or anything rubbing against that
area. It’s the bottom entrance of the vagina. So it usually – it’s the most com-
mon site of injury of sexual assault patients.” 8
AFOSI agents seized clothing MT and Appellant wore on the night in ques-
tion, and sent it to the United States Army Criminal Investigations Laboratory
(USACIL) for analysis. Mr. JF from USACIL analyzed the inside crotch area
of the underwear each was wearing, as well as MT’s shorts. Mr. JF provided
testimony about his findings after being accepted by the court as an expert in
forensic biology and DNA examinations. His examination indicated Appel-
lant’s DNA was on MT’s underwear and shorts, and MT’s DNA was on Appel-
lant’s underwear. No sperm was detected. Mr. JF opined that MT’s and Appel-
lant’s DNA recovered from the other person’s item of underwear came from a
8 Trial defense counsel objected to a later question asking whether she formed an opin-
ion as to what caused the redness in this case, which the military judge sustained. The
military judge did not sua sponte tell the members to disregard her earlier testimony.
6
United States v. Palacios Cueto, No. ACM 39815
bodily fluid and not from touch. 9 Mr. JF could not opine whether Appellant’s
DNA on MT’s shorts could have come from a touch. Moreover, Mr. JF testified,
“Given the evidence, it’s my opinion that some form of intimate contact would
have to have occurred to deposit DNA inside the front crotch of the underwear.”
He also opined that the presence of the DNA was the result of a primary and
not a secondary transfer. 10 The Defense’s DNA expert disagreed, opining a
“long and vigorous . . . . secondary transfer could potentially result in a level of
DNA that is in the realm of the amount we’re talking about here.”
II. DISCUSSION
A. Legal and Factual Sufficiency
Appellant asserts that the evidence for the two offenses of which he was
convicted—kissing MT while she was on the dayroom floor causing bodily harm
and touching her stomach while she was in her bed and incapable of consent-
ing—was legally and factually insufficient. For both, Appellant asserts that
MT was not a credible witness. Appellant argues that the Government did not
meet its burden of disproving mistake of fact as to consent to the kiss, suggest-
ing he reasonably believed she consented to this sexual act. Appellant argues
an opposing theory regarding the stomach touching: that the Government did
not meet its burden of proving Appellant had the intent to gratify his sexual
desire. We are not persuaded and find Appellant’s convictions both legally and
factually sufficient.
1. Law
We review issues of legal and factual sufficiency de novo. United States v.
Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assess-
ment of legal and factual sufficiency is limited to the evidence produced at trial.
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted).
“The test for legal sufficiency is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” United
States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States
9 Mr. JF used the terms “bodily fluid” and “biological fluid” interchangeably. He de-
scribed kinds of bodily fluids, to include blood, seminal and vaginal fluid, nasal secre-
tions, sweat, and breast milk, and stated “[t]ypically, biological fluids contain more
DNA than just random touch samples.”
10 The expert testified about transfers using the example of shaking another person’s
hand. The handshake between two people (A and B) is a primary transfer of the other
person’s DNA. When A shakes C’s hand, recovery of B’s DNA on C’s hand would be the
result of a secondary transfer through A.
7
United States v. Palacios Cueto, No. ACM 39815
v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, how-
ever, does not mean that the evidence must be free from conflict.” United States
v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v.
Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018).
“[I]n resolving questions of legal sufficiency, we are bound to draw every rea-
sonable inference from the evidence of record in favor of the prosecution.”
United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
As a result, “[t]he standard for legal sufficiency involves a very low threshold
to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019)
(alteration in original) (citation omitted). The “government is free to meet its
burden of proof with circumstantial evidence.” King, 78 M.J. at 221 (citations
omitted).
The test for factual sufficiency is “whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a
reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In
conducting this unique appellate role, we take ‘a fresh, impartial look at the
evidence,’ applying ‘neither a presumption of innocence nor a presumption of
guilt’ to ‘make [our] own independent determination as to whether the evidence
constitutes proof of each required element beyond a reasonable doubt.’”
Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J.
at 399).
2. Analysis
a. Abusive Sexual Contact – Bodily Harm
The elements of the Specification of the Additional Charge alleging abusive
sexual contact in violation of Article 120, UCMJ, of which Appellant was con-
victed include: (1) that Appellant committed sexual contact upon MT by touch-
ing MT’s lips and mouth with his lips and mouth; (2) that Appellant did so by
causing bodily harm to MT; and (3) that Appellant did so with the intent to
gratify his sexual desire. See Manual for Courts-Martial, United States (2016
ed.) (MCM), pt. IV, ¶ 45.b.(8)(b). “Bodily harm” includes “any nonconsensual
sexual act or nonconsensual sexual contact.” MCM, pt. IV, ¶ 45.a.(g)(3). “The
term ‘consent’ means a freely given agreement to the conduct at issue by a
competent person.” MCM, pt. IV, ¶ 45.a.(g)(8)(A). An “incompetent person can-
not consent.” MCM, pt. IV, ¶ 45.a.(g)(8)(B).
The affirmative defense of mistake of fact as to consent requires that an
accused, because of ignorance or mistake, incorrectly believe that another con-
sented to the sexual contact. See Rule for Courts-Martial (R.C.M.) 916(j)(1). In
order to rely on this defense, the accused’s belief must be honest and reasona-
ble. See id.; United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998) (quoting
8
United States v. Palacios Cueto, No. ACM 39815
United States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995)); United States v.
Gans, No. ACM 39321, 2019 CCA LEXIS 162, at *14 (A.F. Ct. Crim. App. 11
Apr. 2019) (unpub. op.). Once raised, the Government bears the burden to
prove beyond a reasonable doubt that the defense does not exist. R.C.M.
916(b)(1); see United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019). The
“burden is on the actor to obtain consent, rather than the victim to manifest a
lack of consent.” McDonald, 78 M.J. at 381. An “[a]ppellant’s actions could only
be considered innocent if he had formed a reasonable belief that he had ob-
tained consent. The Government only need[s] to prove that he had not done so
to eliminate the mistake of fact defense.” Id.
The Government’s primary evidence proving sexual contact by bodily harm
was the video recording of the offense. A reasonable finding from viewing the
video is Appellant lowered himself above MT while she was lying motionless
on the dayroom floor and kissed MT on her lips, and MT responded by pushing
him away with her hands. Additionally, Appellant told his first sergeant he
kissed MT. MT testified she did not consent to this kiss, and the evidence indi-
cates MT did not demonstrate a desire to be kissed. Similarly, the evidence
indicates Appellant would not have reasonably thought he obtained MT’s con-
sent to kiss her. Finally, Appellant’s comments to MT that he missed touching
a woman and that he had intended to have sex with her that day are circum-
stantial evidence of his intent at the time of the kiss. A reasonable inference
from the video of the offense, the video of them outside her room, and other
evidence admitted is that Appellant kissed MT to gratify his own sexual desire
and did so without her consent.
b. Abusive Sexual Contact – Incapable of Consenting
The elements of Specification 2 of the Charge alleging abusive sexual con-
tact in violation of Article 120, UCMJ, for which Appellant was convicted in-
clude: (1) that Appellant committed sexual contact upon MT by touching MT’s
stomach with his hand; 11 (2) that MT was incapable of consenting to the sexual
contact due to impairment by alcohol; (3) that Appellant knew or reasonably
should have known of MT’s impairment; and (4) that Appellant did so with the
intent to gratify his sexual desire. See MCM, pt. IV, ¶ 45.b.(8)(f). The touching
in a sexual contact “may encompass both body-to-body contact and object-to-
body contact.” United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F. 2015).
The Government’s primary evidence proving abusive sexual contact upon
a person incapable of consenting due to intoxication by alcohol was MT’s testi-
mony and the video recording of Appellant and MT at the dorm that morning.
11 The military judge granted the Defense’s motion pursuant to R.C.M. 917, finding
Appellant not guilty of the words “and [MT’s] thighs” as alleged in this specification.
9
United States v. Palacios Cueto, No. ACM 39815
The testimony at trial about how much alcohol MT and Appellant drank lead-
ing up to the offenses can reasonably lead to a finding that Appellant was not
intoxicated, and he knew that MT was very intoxicated. The video shows MT
stumbling as she walked through her dorm, and Appellant trying to hold her
up as he walked directly behind her. The video also shows MT—with Appellant
still behind her—standing at the door to her room searching through her purse
for about two minutes to find her key and enter her room. MT testified she did
not know that Appellant followed her into her room until she saw him looking
at her while she was on the toilet. A reasonable finding from the evidence is
that MT, due to her intoxication, did not have the physical and mental ability
to consent 12 to Appellant touching her stomach a short time later when she lay
in bed, and Appellant knew or should have known of her condition.
The most telling evidence of Appellant’s intent to gratify his sexual desire
is his own words to MT about his mindset at the time he was touching her.
Immediately before she passed out on her bed, MT remembered Appellant
touching her stomach. MT testified Appellant later admitted to her he wanted
to have sex with her and stopped touching her when she fell asleep. Addition-
ally, evidence of Appellant’s DNA on the inside crotch of MT’s underwear and
shorts, as well as Mr. JF’s opinion that some form of direct intimate contact
occurred, supports a reasonable conclusion that Appellant touched other parts
of MT that day, and his contact with her was sexual.
Although Appellant was charged with touching MT “with his hand,” the
Government did not provide direct evidence that Appellant used his hand as
opposed to another part of his body or an object. However, based on the circum-
stantial evidence presented, the court members reasonably could find Appel-
lant guilty as charged. See R.C.M. 918(c) (“Findings may be based on direct or
circumstantial evidence.”) The military judge accurately advised the members
they are “expected to use [their] own common sense and knowledge of human
nature and the ways of the world” and they “should consider the inherent prob-
ability or improbability of the evidence.” See also R.C.M. 918(c), Discussion.
Appellant used his hand when he touched MT’s leg in the car and said he
“missed touching a woman,” and when he escorted MT through the dorm to her
room. When Appellant admitted to MT he had been touching her before she
“passed out,” a reasonable inference is he used the body part he had used before
when he touched her leg—and that commonly is used to touch someone else to
gratify one’s sexual desire—his hand, or a part thereof.
12 The military judge properly instructed the members that an “incompetent person
cannot consent,” which includes “a person who lacks either the mental or physical abil-
ity to consent because” she is “impaired by [an] intoxicant.” See United States v. Pease,
75 M.J. 180, 185−86 (C.A.A.F. 2016).
10
United States v. Palacios Cueto, No. ACM 39815
We conclude that a rational factfinder could have found beyond a reasona-
ble doubt all the essential elements of Appellant’s convicted offenses. Further-
more, in assessing factual sufficiency, after weighing all the evidence in the
record of trial and having made allowances for not having personally observed
the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
Therefore, we find Appellant’s convictions both legally and factually sufficient.
B. Fair Notice — Theory of Bodily Harm
1. Additional Background
The Government first gave the members the impression that its theory of
the kissing, as charged in the Specification of the Additional Charge, was that
MT was too incapacitated to consent, but its evidence and argument made clear
its theory was lack of consent and not incapacitation.
In opening statement, assistant trial counsel explained the dorm videos,
marked as Prosecution Exhibit 1, would show:
[MT] is so inebriated she does not understand what’s happening.
Eventually, she’s able to push [Appellant] off and stop that from
happening any further.
....
. . . And as I said earlier when I started, she passes out. And
that’s when [Appellant] leans over her, and he fixes a purse that
he was carrying, and he kisses her on the lips without her con-
sent. Because she couldn’t consent, because she was so inebri-
ated.”[ 13]
Immediately after trial counsel’s opening statement, civilian defense coun-
sel sought to counter trial counsel’s claim that MT was too incapacitated to
consent. He asked to show the video in his opening statement. He told the
members, “I’m going to show you the video, because I don’t think the video is
completely consistent with that opening statement that you just heard. And I
don’t want you sitting here for two days thinking that.” Prosecution Exhibit 1
was played to the members during the defense opening statement.
In closing argument, trial counsel started with the kissing allegation. He
focused on lack of consent as manifested through MT’s conduct only; he did not
argue she was incapable of consenting. He referenced the part of the military
13 The Government tried to show the members Prosecution Exhibit 1 during this part
of its opening statement, but it would not play. The technical difficulties were resolved
after the Government’s opening statement ended.
11
United States v. Palacios Cueto, No. ACM 39815
judge’s definition of consent stating it was a freely given agreement to engage
in the conduct. He continued,
When she’s laying [sic] on the ground, with her hands up, and
her head back, is she indicating that she wants to kiss? Is that
freely given? Or does she manifest the lack of consent through
words or conduct?
Now you’ll remember that after she was kissed by [Appellant],
she takes her arm and she pushes him off. That’s what we call
an expression of lack of consent through conduct.
Trial counsel made a clear break from his argument about the kissing to the
other specifications, which alleged an incapacity to consent based on intoxica-
tion.
2. Law
“Due process requires ‘fair notice’ that an act is forbidden and subject to
criminal sanction” before a person can be prosecuted for committing that act.
United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing United States
v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)).
“Opening statements are not evidence.” United States v. Turner, 39 M.J.
259, 262 (C.A.A.F. 1994) (citation omitted).
3. Analysis
Appellant does not assert that he was not on notice that his conduct would
subject him to criminal prosecution. As such, his reliance on the Due Process
Clause 14 is misplaced. Appellant asserts, essentially, that he was not on notice
that the Government’s theory of “bodily harm” to MT included her incapacita-
tion by intoxication to consent to the alleged kissing. On appeal the Government
asserts Appellant was in fact prosecuted for the kissing on a theory of failure to
consent—before the victim became incapacitated. We agree with the Govern-
ment that at trial it pursued a theory of lack of consent, not inability to consent.
Even MT admitted that at the time of the kiss, she was still capable of consent-
ing and did not consent, but at the time of the stomach touching in her room,
she was not able to consent. We do not find the assistant trial counsel’s opening
statement suggesting otherwise to be of a constitutional magnitude, nor was it
so misleading or confusing that any substantial right of Appellant was materi-
ally prejudiced.
14 U.S. CONST. amend. V.
12
United States v. Palacios Cueto, No. ACM 39815
C. Court-Members’ Requested Evidence
Appellant contends the military judge erred when he denied the court-
members’ request to receive statements Appellant made to Air Force Office of
Special Investigations (AFOSI) agents. We disagree.
1. Additional Background
Appellant made statements to AFOSI agents during their investigation. At
trial, starting with the Defense’s cross-examination of an AFOSI agent, counsel
for both sides elicited testimony regarding Appellant’s statements as reflected
in the AFOSI report of investigation (ROI). The circuit trial counsel referenced
some of Appellant’s statements in his closing argument.
While the court was closed for deliberations on findings, the court members
told the bailiff they had a question: they wanted the AFOSI ROI. The military
judge held a session outside the presence of the members pursuant to Article
39(a), UCMJ, 10 U.S.C. § 839(a), to hear the parties’ view on the request. The
military judge said he intended to “tell them no, that the rules of evidence con-
trol what comes in, and that didn’t come in. They have the evidence that they’re
going to get, and it’s not going to be the Report of Investigation.” Both counsel
concurred, but civilian defense counsel wanted to know whether the members
wanted something specific from the ROI, and circuit trial counsel wondered
whether they wanted to request a specific witness. Both counsel and the mili-
tary judge agreed the members had the right to ask for evidence.
The military judge opened the court and told the members “the entire OSI
Report of Investigation is not admissible.” The military judge added, “If, how-
ever, there is some piece of evidence from a witness that you’re requesting, . . .
you can ask for that. And then again, we’ll have to make a determination
whether that is admissible for that specific piece of evidence or witness.” The
court president specified, “We were just wondering if we could see any state-
ments that [Appellant] had made to the OSI agents. Yeah, anything that’s ad-
missible.”
In a subsequent Article 39(a), UCMJ, session, the Government objected
based on hearsay. The Defense stated it “would not object to the presentation
of that evidence,” noted the military judge’s “discretion is wide,” and concluded
it would not oppose him exercising his discretion in admitting it. The Govern-
ment 15 argued the members are not a party, so Mil. R. Evid. 801, which states
out-of-court statements by a party opponent are not hearsay, was not applica-
ble. He added, “And the only way for the statement of the accused to become
admissible is when the government offers it against the accused at a court-
15 The transcript attributes the Government’s arguments to the civilian defense coun-
sel, but it is clear from context that a trial counsel was speaking.
13
United States v. Palacios Cueto, No. ACM 39815
martial. That’s the only reason it’s not admissible.” The military judge ruled
the evidence was inadmissible, adding, “I do believe the government controls
admissions by the accused; elected not to put those statements in.” The mili-
tary judge opened the court, and told the members, “So the statements from
[Appellant] that were not admitted during the course of the trial are not ad-
missible. And so you will not be getting any of them. Again, if there other [sic]
pieces of evidence that—or witnesses that you do want to ask, don’t hesitate.”
The court members did not ask to hear from any witness but did ask for some
other evidence. 16
2. Law
Court members may request evidence. See R.C.M. 801(c), 921(b); see also
Article 46, UCMJ, 10 U.S.C. § 846 (providing the court-martial equal oppor-
tunity as counsel for the Government and the accused to obtain witnesses and
other evidence). However, “the right of the court members to obtain additional
evidence is not absolute.” United States v. Lampani, 14 M.J. 22, 26 (C.M.A.
1982). “The right of the members to have additional evidence obtained is sub-
ject to an interlocutory ruling by the military judge.” R.C.M. 801(c). When
members request evidence after the court has closed, “[t]he military judge may,
in the exercise of discretion, grant such request.” R.C.M. 921(b).
“We review a military judge’s decision to admit or exclude evidence for an
abuse of discretion.” United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016) (ci-
tation omitted). We find an abuse of discretion when the military judge’s “find-
ings of fact are clearly erroneous, the court’s decision is influenced by an erro-
neous view of the law, or the military judge’s decision on the issue at hand is
outside the range of choices reasonably arising from the applicable facts and
the law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations
omitted). “This standard requires more than just our disagreement with the
military judge’s decision.” Bess, 75 M.J. at 75 (citation omitted).
Hearsay is an out-of-court statement offered for the truth of the matter as-
serted, and generally is not admissible on the merits. See United States v.
Finch, 79 M.J. 389, 394 (C.A.A.F. 2020); Mil. R. Evid. 801(c), 802. A statement
made by an opposing party is not hearsay if offered against the opposing party.
Mil. R. Evid. 801(d)(2)(A).
16 The court members asked for an index of exhibits and numbers related to the DNA
analysis. The former was not provided to them; the latter was provided.
14
United States v. Palacios Cueto, No. ACM 39815
3. Analysis
Appellant asserts on appeal that “statements of an accused are admissible
under Mil. R. Evid. 801(d)(2),” the Government “opened the door to these state-
ments during [the special agent’s] testimony,” and the military judge should
have analyzed factors under United States v. Lampani, 14 M.J. 22 (C.M.A.
1982). 17 We find the military judge did not abuse his discretion when he de-
clined to provide the members Appellant’s statements from the AFOSI ROI.
Appellant’s statements to AFOSI agents in the ROI were hearsay. Appel-
lant was a party opponent of the Government, and not the court members. The
military judge did not err when he sustained the Government’s objection to the
requested evidence as inadmissible hearsay.
To the extent Appellant’s second argument—that the Government “opened
the door” to these statements—implicates Mil. R. Evid. 106 or 304(h) regarding
completeness of statements, 18 we consider the issue waived. See United States
v. Clifton, 71 M.J. 489, 491 (C.A.A.F. 2013) (finding trial defense counsel’s “no
objection” response to the military judge’s denial of a panel member’s request
to call additional witnesses for questioning waived the issue). The Defense had
the opportunity to make such arguments in support of admission of the re-
quested evidence. Instead, the Defense was neutral, inviting the military judge
to exercise his wide discretion. We decline to pierce Appellant’s waiver under
Article 66, UCMJ, 10 U.S.C. § 866.
Finally, we find no error in the military judge’s resolution of this matter
without specific reference to the non-exhaustive factors in Lampani, a case
which is easily distinguished from the present case. In Lampani, 14 M.J. at 24,
the court members requested a witness be recalled, and the military judge
summarily denied the request. Here, the court members requested no wit-
nesses; they requested evidence. As such, the Lampani factors are not partic-
ularly helpful. The military judge considered the parties’ positions and applied
the Military Rules of Evidence before determining the evidence would not be
17 “Difficulty in obtaining witnesses and concomitant delay; the materiality of the tes-
timony that a witness could produce; the likelihood that the testimony sought might
be subject to a claim of privilege; and the objections of the parties to reopening the
evidence are among the factors the trial judge must consider.” United States v. Lam-
pani, 14 M.J. 22, 26 (C.M.A. 1982).
18 Mil. R. Evid. 106 states, “If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction, at that time, of any other
part—or any other writing or recorded statement—that in fairness ought to be consid-
ered at the same time.” Mil. R. Evid. 304(h) states, “If only part of an alleged admission
or confession is introduced against the accused, the defense, by cross-examination or
otherwise, may introduce the remaining portions of the statement.”
15
United States v. Palacios Cueto, No. ACM 39815
admitted over the Government’s objection. He did not demonstrate an errone-
ous view of the law, and did not abuse his discretion.
D. Allegations of Ineffective Assistance of Counsel
Appellant alleges that he was denied effective assistance of counsel. He
asks this court to consider five deficiencies in the performance of trial defense
counsel: (1) failure to file a motion to suppress Appellant’s statements to his
first sergeant; (2) ineffective cross-examination of MT; (3) failure to object to
findings instructions and the Government’s argument regarding bodily harm;
(4) failure to submit a timely discovery request; and (5) preparation of an inef-
fective sentencing case.
1. Law
The Sixth Amendment 19 guarantees an accused the right to effective assis-
tance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We
review allegations of ineffective assistance de novo. United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009)). In assessing the effectiveness of counsel, we apply the stand-
ard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin
with the presumption of competence announced in United States v. Cronic, 466
U.S. 648, 658 (1984). Gilley, 56 M.J. at 124 (citing United States v. Grigoruk,
52 M.J. 312, 315 (C.A.A.F. 2000)). “Our scrutiny of a trial defense counsel’s
performance is ‘highly deferential,’ and we make ‘every effort . . . to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate conduct from counsel’s perspective at the
time.’” United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (omission in
original) (quoting Strickland, 466 U.S. at 689).
We will not second-guess reasonable strategic or tactical decisions by trial
defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do
not perform deficiently when they make a strategic decision to accept a risk or
forego a potential benefit, where it is objectively reasonable to do so.” United
States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at
362−63). The burden is on the appellant to demonstrate both deficient perfor-
mance and prejudice. Id. (citation omitted).
We consider the following questions to determine whether the presumption
of competence has been overcome: (1) if appellant’s allegations are true, is
there a reasonable explanation for counsel’s actions; (2) if appellant’s allega-
tions are true, did defense counsel’s level of advocacy fall measurably below
19 U.S. CONST. amend. VI.
16
United States v. Palacios Cueto, No. ACM 39815
the performance ordinarily expected of fallible lawyers; and (3) if defense coun-
sel was ineffective, is there a reasonable probability that, absent the errors,
there would have been a different result. Gooch, 69 M.J. at 362; United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations omitted). Considering the last
question, “[i]t is not enough to show that the errors had some conceivable effect
on the outcome,” instead it must be a “probability sufficient to undermine con-
fidence in the outcome,” including “a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting guilt.”
Datavs, 71 M.J. at 424 (internal quotation marks and citations omitted).
2. Analysis
In response to Appellant’s assignment of error, we ordered and received
declarations from both trial defense counsel—Appellant’s civilian defense
counsel and his area defense counsel. Considering these declarations along
with the assertions Appellant makes in his assignment of error, we conclude
that Appellant has not overcome the presumption of competence of his trial
defense counsel. 20 We examine each allegation in turn.
a. Motion to Suppress
Appellant claims his counsel were deficient in failing to move to suppress
his statements to his first sergeant, and he was prejudiced because his state-
ments corroborated the video showing Appellant kissed MT. Civilian defense
counsel explained this was not a failure, but “a strategic and tactical choice.”
On balance, they determined the statements were more helpful than harmful
for three primary reasons. First, one statement was exculpatory to the pene-
trative offense, of which Appellant was ultimately acquitted. Second, a motion
to suppress was unlikely to be successful, and if it were, the part of the state-
ment before the rights advisement was “the most exculpatory evidence in the
case.” Third, Appellant’s statement to his first sergeant was largely consistent
with his later statement to AFOSI agents after a proper rights advisement. If
the Government did not introduce at least one of those statements, both of
which included exculpatory statements, Appellant would have had increased
pressure to testify and “[l]anguage barriers weighed against” him testifying.
Finally, in the words of the civilian defense counsel, they chose not to “risk
losing Specification 1 of the Charge [alleging sexual assault] in order to obtain
20 We considered the declarations to resolve this issue pursuant to United States v.
Jessie, 79 M.J. 437, 442 (C.A.A.F. 2020) (observing a Court of Criminal Appeals is al-
lowed to accept affidavits “when necessary for resolving claims of ineffective assistance
of trial defense counsel . . . when those claims and issues are raised by the record but
are not fully resolvable by the materials in the record”). Our consideration is limited
to determining whether a factfinding hearing or other appellate relief is warranted.
United States v. Ginn, 47 M.J. 236, 238 (C.A.A.F. 1997) (citations omitted).
17
United States v. Palacios Cueto, No. ACM 39815
an unlikely acquittal on the Additional Charge of a kiss that was recorded and
that Appellant said was consensual.” We find counsel’s explanations objec-
tively reasonable, and that Appellant has not met his burden to demonstrate
sub-standard performance of his counsel. Thus, we determine that counsel
were not deficient in refraining from filing a motion to suppress Appellant’s
statements to his first sergeant.
b. Cross-examination of MT
Appellant next claims his trial defense counsel should have more thor-
oughly explored MT’s motive to lie or misrepresent and developed MT’s prior
inconsistent statements. The trial defense counsel explained that their strat-
egy for the cross-examination of MT was to focus on her lack of recollection—
that “she was confused and not lying.” Such is clear from the record, for exam-
ple, when civilian defense counsel previewed to the members he would act “gen-
tlemen like” with the witnesses. By the closing argument, however, he argued
that perhaps MT’s inconsistencies were due to “self-preservation of self-iden-
tity”—that she was lying to herself.
Civilian defense counsel added that their strategy regarding Specification
2 of the Charge (alleging touching MT’s stomach) was not focused on MT’s tes-
timony about whether the act occurred, but the lack of intent to gratify sexual
desire. He explained: “[t]he fact that she vomited was arguably the best evi-
dence that he lacked the intent to gratify his sexual desire when he was in the
bed.” That is, instead of painting MT as a liar, the defense strategy was to posit
that MT vomiting before the alleged stomach touch would negate any sexual
desire on Appellant’s part. Appellant counters that this strategy was faulty
because intent to gratify could be inferred based on the surrounding circum-
stances, and the evidence indicating a touch on the stomach was limited to
MT’s memory. However, in cross-examination of MT, civilian defense counsel
did show MT’s memory was limited. The following is illustrative: after ascer-
taining MT did not see the touching, civilian defense counsel asked her, “And
you don’t have any memory of being stroked or caressed or touched or some
movement of whatever was touching your stomach, right?” to which MT re-
plied, “I can’t remember.” Appellant’s trial defense counsel’s initial strategy of
focusing on lack of intent, and additional strategy of lack of memory both were
reasonable. Appellant has not shown that his counsel were deficient.
c. Instructions and Argument on Bodily Harm
Next, Appellant extends his argument regarding the theory of liability for
the Specification of the Additional Charge (alleging a kiss), claiming his coun-
sel were ineffective for failing to object to the military judge’s instructions re-
garding bodily harm and incapacity to consent. We disagree. The competence
of the victim to consent is relevant to whether Appellant caused “bodily
18
United States v. Palacios Cueto, No. ACM 39815
harm.” 21 The military judge’s instructions on these points were accurate state-
ments of the law and were not confusing. We find counsel’s lack of objection
was not deficient performance.
d. Discovery Request
Appellant claims his trial defense counsel failed to submit a timely and
thorough discovery request, resulting in a failure “to exercise due diligence to
completely defend Appellant,” who was prejudiced because “it is likely that
they would have received additional evidence helpful to Appellant’s defense.”
Appellant’s area defense counsel disagreed, asserting he “submitted a timely
and comprehensive discovery request,” which he attached to his declaration.
Appellant’s civilian defense counsel stated, “We received everything we
needed,” and noted Appellant has not identified what they allegedly failed to
obtain.
After he was detailed post-referral to defend Appellant, the area defense
counsel was unsure whether Appellant’s civilian defense counsel or his previ-
ous area defense counsel had submitted a discovery request, so for “clarity and
efficiency” he requested discovery over email, which included “all discovery cat-
egories that were relevant to the case.” Among the categories he requested
were “any relevant personnel, medical, and mental health records” and “docu-
ments and information concerning any reassignment or ‘expedited transfer’ of
the complaining witness,” “any document used by a witness to prepare for
trial,” and items including “documents, photographs, tangible objects . . . ob-
tained from or [which] belong to [Appellant].”
Appellant avers
[D]iscovery requests typically include multiple pages of numer-
ous items including: (1) any evidence to diminish the credibility
of the complaining witness or other potential witnesses includ-
ing derogatory data, adverse administrative actions, or infor-
mation contained on social media; (2) information from the
AFOSI investigation outside of the ROI including agent notes,
internal data pages, interview logs, evidence of adverse actions
taken against any of the agents involved; (3) any handwritten,
21 We echo a previous decision from this court, which considered a conviction for sexual
assault by bodily harm: “The extent to which [the victim] was intoxicated or was asleep
at the time [the a]ppellant committed the sexual act were part of the ‘surrounding
circumstances’ that were ‘to be considered in determining whether [the victim] gave
consent,’ in accordance with Article 120, UCMJ.” United States v. Campbell, No. ACM
38875 (reh), 2021 CCA LEXIS 170, at *35 (A.F. Ct. Crim. App. 10 Feb. 2021) (unpub.
op.) (citing MCM, pt. IV, ¶ 45.a.(g)(8)(C)).
19
United States v. Palacios Cueto, No. ACM 39815
typed or recorded statements by potential witnesses; (4) disclo-
sure of evidence seized from the accused; and so on.
We find the area defense counsel’s abbreviated request sufficiently addressed
these items. As to (1), the Government is required to provide such information
even in the absence of a defense request. R.C.M. 701(a)(6)(D). Item (2) is fairly
included in the request for documents a witness used to prepare for trial as
well as the Government’s obligation to provide information affecting the cred-
ibility of its witnesses. The area defense counsel’s request also fairly included
items (3) and (4).
The only specific “additional evidence” Appellant cited that he would have
received had his trial defense team submitted a more lengthy discovery request
related to two matters the Defense identified in its post-trial motion for appro-
priate relief: MT’s complaint about another male Airman from her dorm in
2017 and her resulting move to a different dorm room, and MT’s interactions
with a paralegal from the prosecuting base legal office both before and after
the alleged offenses. The military judge held a post-trial Article 39(a), UCMJ,
hearing, at which the parties presented evidence and argument regarding the
defense request to dismiss the case with prejudice or, if not, order a new trial.
The Government submitted overwhelming evidence that neither investigators
nor legal office personnel—save the paralegal—knew about the 2017 com-
plaint. Additionally, the Government argued that information about MT and
the paralegal would not be responsive to a general defense discovery request,
they were not required affirmatively to provide the Defense the information,
and the paralegal’s relationship with MT was in the AFOSI ROI. 22
A lengthy but general discovery request likely would not have resulted in
the Defense receiving additional information about the paralegal’s relationship
with MT from the Government. Moreover, the Government did not consider
“moving dorm rooms” as a reassignment responsive to the Defense request in
discovery about “any reassignment or ‘expedited transfer;’” telling the military
judge during the post-trial hearing, “That is not at all something that the
[G]overnment was oriented to.” Appellant has not identified what his trial de-
fense team specifically failed to do that would have prompted the Government
to provide this information through discovery. Appellant has not shown that
the typical defense discovery request would encompass complaints MT made
about others in the dorm or the finer details of MT’s relationship with a mem-
ber of the legal office. Finally, we agree with the military judge that “there is
22 The trial defense team had received agent notes before trial, to include notes of the
interview with the paralegal indicating she was acquainted with MT. The Defense sub-
mitted the notes as Appellate Exhibit XLIV in support of its post-trial motion.
20
United States v. Palacios Cueto, No. ACM 39815
virtually no probative value to the evidence and it would not have been admit-
ted at trial.” Thus, we conclude the trial defense counsel were not ineffective
in its requests for discovery.
e. Appellant’s Unsworn Statement in Sentencing
Appellant asserts his trial defense counsel were ineffective “for failing to
include relevant collateral consequences in his unsworn statement,” including
sex-offender registration, consequences of a federal conviction, and mandatory
administrative discharge processing. We disagree. “The collateral conse-
quences of a court-martial do not constitute R.C.M. 1001 material, and while
they may be referenced in an unsworn statement, . . . they should not be con-
sidered for sentencing.” United States v. Talkington, 73 M.J. 212, 216 (C.A.A.F.
2014) (citations omitted). Trial defense counsel had no duty to inform the mem-
bers of matters that are an improper consideration for sentencing, much less
do so through their client’s unsworn statement. See id. (addressing a military
judge’s instruction regarding an appellant’s unsworn statement and observing
that the proper focus of sentencing is on the offense and the character of the
accused, and “to prevent the waters of the military sentencing process from
being muddied by an unending catalogue of administrative information” (in-
ternal quotation marks omitted) (quoting United States v. Rosato, 32 M.J. 93,
96 (C.M.A. 1991))).
Moreover, Appellant did not aver that his trial defense counsel failed to
inform him of sex-offender registration requirements so that he could address
the matter in his unsworn statement. 23 Appellant submitted no declaration; he
did not allege he wanted to speak to sex-offender registration but was coun-
seled against it. The owner of an accused’s unsworn statement is that accused.
See United States v. Marcum, 60 M.J. 198, 209 (C.A.A.F. 2004) (“[T]he right to
make the unsworn statement is personal to the accused.”). On these facts, we
will not find a defense counsel ineffective for what an accused chooses to say to
the sentencing authority.
While Appellant did not specifically mention sex-offender registration or
other consequences that might flow from his conviction, the area defense coun-
sel argued to the members that Appellant “is now a federal convict for the rest
of his life, of a sexual assault offense under Article 120.” This oblique reference
to the lifetime consequence of a sexual assault conviction may have been the
23 Similarly, Appellant does not claim that he did not know about the change in the
law of abusive sexual contact, or that he wanted to address the topic in his unsworn
statement.
21
United States v. Palacios Cueto, No. ACM 39815
trigger for the members to ask the military judge “what is the impact to [Ap-
pellant] as a federal convict” and “will he have to register as a sex offender.” 24
We find counsel’s performance was not deficient.
Accordingly, the trial defense counsels’ actions were reasonable and their
performance was not measurably below professional standards. As such, we
need not reach the question of whether there was a reasonable probability of a
different result.
E. Improper Argument
Appellant contends the trial counsel committed prosecutorial misconduct
when stating that they represented “the pursuit of justice” and argued that
justice would only be served if Appellant was convicted and adjudged a suffi-
cient punishment. We have considered the prosecutors’ statements and argu-
ments and find error.
1. Additional Background
The circuit trial counsel introduced himself and his co-counsel before ques-
tioning the court members. He stated,
My name is [ ]. I’m the circuit trial counsel and I’m stationed at
Langley Air Force Base. I am TDY here to represent the United
States of America in the pursuit of justice in this case. I’m as-
sisted today with Lieutenant [ ], he is stationed here at Hans-
com. We will be dividing up tasks throughout this trial, and he
is what we call the assistant trial counsel.
After voir dire, the number of enlisted court members fell below the minimum
ratio of one-third of the panel, see R.C.M. 503(a)(2), and the convening author-
ity detailed additional enlisted court members. Before questioning those mem-
bers, the circuit trial counsel introduced himself and his co-counsel using words
very similar as before, including, “I’m stationed at Langley Air Force Base,
Virginia, and I’m TDY here to represent the United States of America in the
pursuit of justice in this case.”
24 Appellant does not assert, nor do we find, plain error when, in response to these
questions, the military judge provided answers and instructions in line with Talking-
ton, to which the Defense indicated it had no objection, questions, or concerns, thus
waiving the issue. See United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (con-
ceding to an instruction constitutes waiver), cert. denied, 141 S. Ct. 355 (2020). We also
decline to speculate whether counsel were ineffective when they did not request the
military judge instruct on issues collateral to the matters the members were charged
with deciding.
22
United States v. Palacios Cueto, No. ACM 39815
The assistant trial counsel gave the Government’s opening statement to
the court members. He ended with these words,
Members, I will leave you with this: it’s your job to listen to both
sides and review all the evidence in this case. And after the
fact—I should say one more thing. After all of this happened, you
will be able to see text messages between the accused and be-
tween [MT], where [Appellant] is essentially pleading for for-
giveness. And I want to quote one of those text messages. “You
please repair the little that can be repaired.”
Now I ask you all to repair the little that can be repaired and
bring justice to [MT] by finding [Appellant] guilty of all charges
and specifications that he faces today.
At the beginning of his argument to the court members on findings, circuit
trial counsel revisited the concept of justice he brought up in voir dire, stating,
Good morning. I feel like it’s been months since I first spoke with
you during voir dire. And as I go through my argument today,
this will be the last time that I speak with [sic] before this trial
becomes yours. Our duties will be over and your duties will
begin. And you will have the ultimate decision on what hap-
pened in this case and whether justice will be served, or whether
[Appellant] will be acquitted.
A tremendous responsibility. One that is not easy and one that
I’m going to attempt to help out with today. There was a lot of
law that you just received from the military judge, it’s about 17
pages or so. You’ll get it after we finish with closing arguments.
As he was arguing why the members should find Appellant guilty of sexual
assault, he stated,
We talked about this in voir dire. The government has no obli-
gation to prove its case with 100 percent mathematical certainty.
The world doesn’t work like that. If that were the standard,
there would be no justice. The standard is proof beyond a rea-
sonable doubt. So any doubts have to be reasonable. They have
to be real; real possibilities.
While the civilian defense counsel did not object during the circuit trial
counsel’s argument, he began his closing argument by addressing the standard
of reasonable doubt, then countering the argument about justice:
If you think there’s a real possibility that he’s not guilty, you
must give him the benefit of the doubt and find him not guilty.
23
United States v. Palacios Cueto, No. ACM 39815
Why am I repeating that? Because it’s more important than
ever. Because I sat there at the table and I listened to the pros-
ecutor at the beginning of his closing statement utter words that
should never come out of a prosecutor’s mouth. He gave you a
false choice. He said “You can render justice and find him guilty,
or you can find him not guilty.”
It’s a false choice. We all swore to defend the Constitution of the
United States. And if you think there’s a real possibility that he’s
not guilty, you give him the benefit of the doubt and you find him
not guilty. And that is justice. Those are words that should never
come out of a prosecutor’s mouth.
Civilian defense counsel also argued:
Because what I have here is a complainant that has no memory
of a penetrative act, right? I have a client who says that there
was no penetrative act, right? And I have some monumental
problems with the DNA evidence. This is a search for truth.
We’re all—this false choice that the prosecutor gives you, is ab-
solutely a false choice. We’re all in this together. We have differ-
ent jobs to do, but it’s still a search for truth.
Civilian defense counsel also ended his argument with the theme of reasonable
doubt and justice:
So, members of the panel, what the government has given you is
a false choice. If you think there’s a real possibility that he’s not
guilty, you must give him the benefit of the doubt. . . . And it
would be a serious injustice, miscarriage of justice, if this case is
decided wrongly.
Circuit trial counsel responded directly, beginning his rebuttal argument,
It’s not a false choice. It’s a simple choice: guilty or not guilty.
And that decision has to be based upon the evidence and the law.
And when that decision is made, that’s what we call justice. And
the evidence in this case supports guilt beyond a reasonable
doubt. That’s not a false choice. That is justice. And that is what
the evidence requires you to do in this case.
The court members acquitted Appellant of the sexual assault specification,
and convicted him of the two abusive sexual contact specifications. In his sen-
tencing argument, the assistant trial counsel continued the “justice” theme
from his opening statement:
Now I know it has been a long week for everybody. But if you
could go back to when I first spoke with you all, days ago, I stood
24
United States v. Palacios Cueto, No. ACM 39815
up here. I said you all had a duty, you all had a responsibility to
find justice in this case. And there is no justice without an ap-
propriate punishment. Now it’s my job, and it’s my duty, and I
should add, one that I hold in the highest regard, to explain to
you trial counsel’s sentence recommendation.
And he ended his argument with the justice theme:
Members, I submit to you now to make the determination for a
fair and just sentence. A sufficient punishment that will bring
justice here to this case, and that will bring some form of closure
to [MT] for all that she has to have had endured in this year-
and-a-half nightmare.
No party requested, and the military judge did not give sua sponte, any
specific instruction to the members about the Government’s theme of justice.
The military judge did provide standard—and accurate—instructions on the
burden of proof. Just before closing arguments, the military judge provided
instructions as required by R.C.M. 920(e)(1)−(5), including the presumption of
innocence, the Government’s burden of proof beyond a reasonable doubt, and
to consider “only matters properly before the court as a whole.” Immediately
after the Government’s rebuttal argument, the military judge provided a
standard instruction to the members, stating, “If there is any inconsistency
between what counsel have said about the instructions and the instructions
which I gave you, you must accept my statement as being correct.” The military
judge also advised the members that “arguments of trial counsel and his rec-
ommendations are only his individual suggestions, and may not be considered
as the recommendation or opinion of anyone other than such counsel.”
2. Law
“Prosecutorial misconduct can be generally defined as action or inaction by
a prosecutor in violation of some legal norm or standard, e.g., a constitutional
provision, a statute, a Manual rule, or an applicable professional ethics canon.”
United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citation omitted). A prose-
cutor’s interest “in a criminal prosecution is not that it shall win a case, but
that justice shall be done.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F.
2005) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).
We review prosecutorial misconduct and improper argument de novo.
United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation omitted), cert.
denied, 140 S. Ct. 2566 (2020). When no objection is made at trial, we review
for plain error. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018) (ci-
tations omitted). “Plain error occurs when (1) there is error, (2) the error is
plain or obvious, and (3) the error results in material prejudice to a substantial
right of the accused.” Id. at 401 (quoting Fletcher, 62 M.J. at 179). We do not
25
United States v. Palacios Cueto, No. ACM 39815
review counsel’s words in isolation; we review the argument in context of the
entire court-martial. United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000)
(citations omitted).
If we find a prosecutor’s argument “amounted to clear, obvious error,” we
then determine “whether there was a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Voorhees, 79
M.J. at 9 (citations and internal quotations marks omitted). “For constitutional
errors, rather than the probability that the outcome would have been different,
courts must be confident that there was no reasonable probability that the er-
ror might have contributed to the conviction.” United States v. Tovarchavez, 78
M.J. 458, 462 n. 5 (C.A.A.F. 2019) (emphasis in original) (citing Chapman v.
California, 386 U.S. 18, 24 (1967)). That is, “where a forfeited constitutional
error was clear or obvious, ‘material prejudice’ is assessed using the ‘harmless
beyond a reasonable doubt’ standard set out in Chapman.” Id. at 460 (quoting
United States v. Jones, 78 M.J. 37, 45 (C.A.A.F. 2018)). In analyzing prejudice
from a prosecutor’s improper argument, we consider: “(1) the severity of the
misconduct, (2) the measures adopted to cure the misconduct, and (3) the
weight of the evidence supporting the conviction.” Andrews, 77 M.J. at 402
(quoting Fletcher, 62 M.J. at 184).
The burden of proof at a court-martial is of a constitutional magnitude. See
United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016). “Lest there remain any
doubt about the constitutional stature of the reasonable-doubt standard, we
explicitly hold that the Due Process Clause protects the accused against con-
viction except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,
364 (1970).
It is inappropriate for counsel to reference “the jury’s societal obligation . . .
if it suggests the panel base its decision on the impact of the verdict on society,
a victim, and the criminal justice system as a whole, rather than the facts of the
case.” United States v. Condon, No. ACM 38765, 2017 CCA LEXIS 187, at *53
(A.F. Ct. Crim. App. 10 Mar. 2017) (unpub. op.), aff’d, 77 M.J. 244 (C.A.A.F.
2018).
In United States v. Schroeder, 65 M.J. 49 (C.A.A.F. 2007), the United States
Court of Appeals for the Armed Forces (CAAF) considered the propriety of the
prosecutor’s closing argument pleading for justice for victims of charged and
uncharged misconduct introduced under Mil. R. Evid. 414. “Trial counsels’
presentation invited members to convict and punish [the a]ppellant for his un-
charged misconduct, as opposed to using that misconduct to inform their judg-
ments regarding the charged conduct. The error was also plain and obvious.”
Schroeder, 65 M.J. at 58. After considering the factors in Fletcher, the CAAF
26
United States v. Palacios Cueto, No. ACM 39815
found no plain error, noting that “[i]mproper argument does not require rever-
sal unless ‘the trial counsel’s comments, taken as a whole, were so damaging
that we cannot be confident that the members convicted the appellant on the
basis of the evidence alone.’” Id. at 58−59 (quoting Fletcher, 62 M.J. at 184).
3. Analysis
We find two statements were obvious error: (1) the assistant trial counsel’s
opening statement asking the court members to “bring justice to [MT] by find-
ing [Appellant] guilty of all charges and specifications that he faces today,” and
(2) the circuit trial counsel’s comment in argument to the court members that
their duty was to decide “whether justice will be served, or whether [Appellant]
will be acquitted.” We find no prejudicial error in assistant trial counsel’s state-
ments in sentencing. We consider the totality of the prosecutors’ statements
from voir dire through closing arguments.
In voir dire, circuit trial counsel told the court members he was “repre-
sent[ing] the United States of America in the pursuit of justice;” he had not yet
explained what “justice” meant. Next, in opening statement the assistant trial
counsel asked the court members to “bring justice to [MT] by finding [Appel-
lant] guilty.” That is a plea for a finding based on the interests of a victim, and
not on the evidence. See Condon, unpub. op. at *53. In closing argument, circuit
trial counsel reminded the members he spoke to them in voir dire. He then told
them they “have the ultimate decision on what happened in this case and
whether justice will be served, or whether [Appellant] will be acquitted.” In a
similar vein, he explained the Prosecution’s burden of proof was not “100 per-
cent mathematical certainty” because “[i]f that were the standard, there would
be no justice.” Put together, the messages the prosecutors sent the court mem-
bers were that the Prosecution seeks justice for the alleged victim, and justice
can only mean a conviction.
Civilian defense counsel interpreted the prosecutor’s argument as a com-
ment on the burden of proof; that is, the prosecutor asked the court members to
find Appellant guilty because that is what “justice” requires, as opposed to a
finding based on proof beyond a reasonable doubt. The risk of equating “justice”
with “criminal conviction” is the members would disregard the presumption of
innocence and apply the wrong standard of proof. 25
25 We note this issue is comparable to, but distinguishable from, United States v. Hills,
in which the CAAF found the military judge’s instructions on the standard of proof
“muddled” and implicated the Due Process Clause (U.S. CONST. amend. V.) “by creat-
ing the risk that the members would apply an impermissibly low standard of proof,
27
United States v. Palacios Cueto, No. ACM 39815
We next consider whether this obvious error resulted in material prejudice
to a substantial right. First, the misconduct was moderately severe. It was a
misstatement of the law, including the duties of the prosecutor and the court
members. The statements that “there would be no justice” if the standard were
“100 percent mathematical certainty” was presented during the portion of the
argument about sexual assault, of which offense the members found Appellant
not guilty. The circuit trial counsel did not end his argument with this theme;
he ended with a summary of the evidence. The statements did not introduce
facts not in evidence or have the tendency to inflame the passions of the court
members. The reference to justice for victims was not repeated from opening
statement to closing argument.
Failure to object is “some measure of the minimal impact of [the] prosecu-
tor’s improper argument.” Gilley, 56 M.J. at 123 (internal quotation marks and
citation omitted). However, counsel may have a tactical reason for not object-
ing, see Voorhees, 79 M.J. at 13, and may choose to address even a significant
impropriety without involving the military judge. 26
Like in Voorhees, in this case civilian defense counsel allowed trial counsel’s
improper argument to continue, then addressed it in the beginning of his clos-
ing argument to the members. See id. Several times he explained the correct
burden of proof and that choosing justice or acquittal was “a false choice.” While
in his rebuttal argument the circuit trial counsel did not retract his earlier
statements, he correctly explained both “justice” and the Government’s bur-
den. The military judge provided correct instructions before and after closing
arguments regarding the burden of proof, the presumption of innocence, and
making findings based on the evidence. In all, several measures were taken to
cure the misconduct. Such measures can be sufficient to find the erroneous
statements harmless beyond a reasonable doubt. Cf. United States v. Mason, 59
M.J. 416, 425 (C.A.A.F. 2004) (finding error harmless beyond a reasonable
doubt where the military judge overruled a defense objection to the DNA expert
undermining both ‘the presumption of innocence and the requirement that the prose-
cution prove guilt beyond a reasonable doubt.’” 75 M.J. 350, 357 (C.A.A.F. 2016) (cita-
tion omitted). However, in Hills the error was in the military judge’s instructions to
the members, not prosecutors’ statements.
26 If the defense objection is sustained and the military judge provides the court mem-
bers an appropriate instruction, the defense counsel may be precluded from addressing
the same matter in his argument. A reasonable tactic, therefore, would be for counsel
to refrain from objecting, then address the matter freely during counsel’s own argu-
ment.
28
United States v. Palacios Cueto, No. ACM 39815
testifying about whether the defense had requested evidence be retested, be-
cause of the trial counsel’s correct reiteration in argument about which party
had the burden of proof, as well as the military judge’s standard instruction
that the burden never shifts from the Government).
The weight of the evidence supporting the convictions, as noted in our dis-
cussion of legal and factual sufficiency, was moderate. We disagree with Ap-
pellant that he “had a strong case for reasonable mistake of fact as to consent”
and that MT’s testimony “was riddled with inconsistencies.” 27
Appellant does not assert that the prosecutors’ improper arguments were of
a constitutional dimension. Nevertheless, such an analysis is required inas-
much as the prosecutors’ argument for “justice” can be interpreted as argu-
ments to reduce the Government’s burden of proof to something lower than
proof beyond a reasonable doubt based upon the evidence and to disregard the
presumption of innocence. See Hills, 75 M.J. at 357. To find such an error harm-
less beyond a reasonable doubt, we must be confident that there was no reason-
able probability that the error might have contributed to the conviction.
We are not convinced the court members erroneously believed the standard
of proof was less than beyond a reasonable doubt, or that Appellant was not
presumed innocent, or that they could convict based on something other than
the evidence presented. We recognize that, absent evidence to the contrary, we
may “presume that members follow a military judge’s instructions.” United
States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000) (citations omitted). If the
court members misinterpreted the circuit trial counsel’s statement of the law
as correct, and disregarded what the military judge and even the civilian de-
fense counsel told them, he left them with this: “It’s a simple choice: guilty or
not guilty. And that decision has to be based upon the evidence and the law.
And when that decision is made, that’s what we call justice.” We are satisfied
beyond a reasonable doubt that the prosecutors’ statements did not result in
unjust convictions.
A prosecutor may argue that justice is required. However, a prosecutor
should be careful not to confuse the jury by conflating “justice” and “criminal
conviction.” “Justice” must be tethered to the evidence and the burden of proof
27 We note it would not be helpful to compare the strength of the evidence supporting
the allegation of sexual assault of which Appellant was acquitted, including MT’s tes-
timony. The record indicates Appellant was charged with committing an act while MT
was incapacitated by alcohol, but the evidence supported a finding that MT instead
was asleep, a point civilian defense counsel returned to more than once during his
closing argument.
29
United States v. Palacios Cueto, No. ACM 39815
lest it be confused with justice for the victim or society or the military justice
system.
III. CONCLUSION
The findings and sentence entered are correct in law and fact, and no error
materially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings
and sentence are AFFIRMED.
MEGINLEY, Judge, (dissenting in part and in the result):
I agree with the court’s decision to affirm the finding of guilty as to the
Additional Charge and its specification, alleging Appellant made sexual con-
tact upon MT by kissing her mouth, but for different reasons. However, I re-
spectfully cannot agree with the court’s decision to affirm the finding of guilty
to Specification 2 of the Charge, which alleged that Appellant made sexual
contact upon MT by touching her stomach with his hand. I would find this
specification legally and factually insufficient, failing to meet the element that
Appellant intended to gratify his sexual desire by touching MT’s stomach, and
would set aside Appellant’s adjudged punishment of a bad-conduct discharge.
Further, I find there was ineffective assistance of counsel and that trial counsel
committed prosecutorial misconduct during their arguments.
A. Legal and Factual Sufficiency of Appellant Touching MT’s Stomach
As the majority notes in its opinion, the elements of Specification 2 of the
Charge alleging abusive sexual contact in violation of Article 120, UCMJ, 10
U.S.C. § 920, for which Appellant was convicted include: (1) that Appellant
committed a sexual contact upon MT by touching MT’s stomach with his hand;
(2) that MT was incapable of consenting to the sexual contact due to impair-
ment by alcohol; (3) that Appellant knew or reasonably should have known of
MT’s impairment; and (4) that Appellant did so with the intent to gratify his
sexual desire. See Manual for Courts-Martial (2016 ed.) (2016 MCM), pt. IV, ¶
45.b.(8)(f).
1. MT’s testimony
The only evidence regarding the touching comes exclusively from MT’s in-
court testimony, which was relatively brief, and from statements she made in-
itially to the Sexual Assault Nurse Examiner (SANE). In court, MT testified
she went to the bathroom and saw Appellant. She then provided the following
further responses,
A [MT]. I did what I had to do. And then I went over to the bed
and I la[y] down.
30
United States v. Palacios Cueto, No. ACM 39815
Q [Trial Counsel]. Now as you’re going to your bed to l[ie] down,
do you see him anywhere?
A. I didn’t see him l[ ]ying down in the bed. I did not -- if I would
have seen him, I would have, of course, I would have done some-
thing. I would have --
Q. Did you see him –
A. -- I would have reacted.
Q. Did you see him anywhere in the room?
A. I remember I . . . walked out of the restroom, and I la[y] down.
That’s what I remember.
Q. And let’s be honest, what is your memory like at this point?
A. I wasn’t able to remember that much, so . . . .
Shortly thereafter, trial counsel asked MT the following questions:
Q. Let me ask you this: put yourself, as hard as it is, back in that
moment, when you’re l[ ]ying in your bed the morning of the
27th. What’s the last thing you remember feeling? And I know it
may be hazy. What is that?
A. Feeling touched. Uh-huh.
Q. Any ability to say where?
A. My stomach. It was very, very blurry.
Q. Hard to remember, is that right?
A. It’s hard to remember, yes.
Q. It’s a long time ago?
A. Yes.
Q. You were very intoxicated, is that right?
A. Yes.
On cross-examination, civilian defense counsel had the following exchange
with MT:
Q [Civilian Defense Counsel]. There was one other point. And I
would be remiss if I didn’t talk about it. That last memory that
you had was laying in the bed, right?
A [MT]. Yes, sir.
Q. And your testimony on direct examination was that you felt
as though you were being touched on your stomach, right?
31
United States v. Palacios Cueto, No. ACM 39815
A. Yes, sir.
Q. But you didn’t open your eyes and look, right?
A. No, sir.
Q. There was no rubbing?
A. I can’t remember right now.
Q. There was no stroking or caressing of your stomach?
A. I can’t remember, sir.
Q. You just felt as though something was touching your stomach,
and you don’t have any memory of actually seeing or knowing
what it was, right?
A. I -- I’m just -- I’m telling you what I remember now.
Q. Right.
A. So, yes.
Q. Right. But you don’t have any memory of physically opening
your eyes and visually looking --
A. No, sir.
Q. And you don’t have any memory of being stroked or caressed
or touched or some movement of whatever was touching your
stomach, right?
A. I can’t remember.
This was the extent of the questioning and testimony of MT on this issue.
At no point did MT state that Appellant touched her stomach with his hand.
Besides “[f]eeling touched” on her stomach, the only other evidence provided
was that MT told the SANE that she went to the bathroom, then lay in bed,
and after she lay down, that is when Appellant touched her body over her cloth-
ing. More problematic for the Government, even if one reads into MT’s testi-
mony that Appellant did in fact touch her stomach with his hand, I find there
was nothing in the testimony above to infer Appellant did so with the intent to
gratify his sexual desire. Assuming Appellant did in fact touch her, MT did not
tell the court where on her stomach Appellant allegedly touched her, with what
(hand, finger, or object), how long he may have touched her, or whether he
touched her over or under her clothing. There is no detail or context to her
testimony.
2. Evidence from the Additional Charge
While MT’s testimony raises issues as to the legal and factual sufficiency
of the stomach touch allegation, the video of the kiss puts MT’s testimony as
32
United States v. Palacios Cueto, No. ACM 39815
to the stomach touch in perspective. 1 The majority accurately describes Appel-
lant’s actions leading up to, and after the kiss, as the video shows MT intoxi-
cated, to the point she has trouble walking, and actually falls down. Despite
the glaring fact that the kiss happens quickly, and is quite literally a “peck” on
what appears to be her mouth (if one were to blink, it could be missed), a ra-
tional factfinder could conclude MT could not consent to being kissed.
MT’s state of intoxication and the genesis of the kiss offense as an addi-
tional charge is significant and needs to be placed in context with her testi-
mony. The kiss incident appears to first come up during the Article 32, UCMJ,
10 U.S.C. § 832, hearing, and was only referred as an additional charge when
requested by MT’s special victims’ counsel (SVC) and with the approval of MT
(according to her SVC). Prior to trial, MT never stated Appellant kissed her,
never told Air Force Office of Special Investigation (AFOSI) agents about the
kiss, and never told the SANE she was kissed. For the first time on the witness
stand, nearly 18 months after the incident, MT “start[ed] to refresh [her]
memory,” and only then, did MT remember Appellant kissing her. In other
words, despite the fact that there was a video of the incident, the Government
referred an additional charge and specification that its own victim, apparently,
knew little, if anything, about. The addition of the charge appears to have been
nothing more than an afterthought or an attempt by the Government to shore
up what was already a fragile case. After review of the video, MT’s testimony
on remembering a kiss, for the first time on the witness stand, 18 months after
the fact, indicates significant recollection abilities, and exposed credibility and
believability problems on her part related to the stomach touch, and to the case
as a whole. Therefore, because of MT’s credibility issues relating to the kiss, I
find this evidence contributes to my finding that the touching offense is legally
and factually insufficient.
3. Evidence from Appellant
There was additional evidence introduced at trial on the issue of Appellant
touching MT, as the Government called Appellant’s first sergeant to testify
that Appellant called him the same day as the incident and told him what hap-
pened. Appellant stated he was “hanging out with a female friend the night
before,”
And as the night progressed, I think she had some trouble going
back to her room. And so [Appellant] helped her back to her
room. And when he got in there he mentioned that he went into
1 Based on the videotape evidence, I concur with the majority that the Additional
Charge and its specification related to Appellant kissing MT is legally and factually
sufficient.
33
United States v. Palacios Cueto, No. ACM 39815
the dorm room bathroom -- because there’s two rooms that share
a bathroom -- he went in there to lock the suite-mate’s door, so
that way the suite-mate wouldn’t come in.
And then he mentioned that she went in there and threw up. So
he started helping her clean up that vomit, [and] stayed back.
When she went back to her bed and fell asleep, he finished clean-
ing up the vomit, and then went into bed with her and went to
sleep.
Appellant also told his first sergeant MT threw up a second time, and he
cleaned that vomit up as well. While some would view Appellant’s statement
as self-serving and question his credibility, there was evidence corroborating
Appellant’s statement to his first sergeant. Despite MT’s testimony that she
threw up later that day after the alleged incident (and not right before she
went to bed), AFOSI agents found vomit on MT’s floor (using a black light),
possible vomit stains on MT’s blanket, and her nightstand. If Appellant did in
fact touch her stomach, the evidence suggests it probably occurred in a fairly
narrow timeframe at or around the time he told his first sergeant he was clean-
ing up vomit. Civilian defense counsel told the members during closing, “[t]he
fact that she vomited was arguably the best evidence that he lacked the intent
to gratify his sexual desire when he was in the bed.” I agree. There was uncon-
vincing evidence that Appellant touched MT’s stomach with the intent to grat-
ify his sexual desire.
4. Conclusion and Sentence Reassessment
The majority finds ample circumstantial evidence to support the conviction
of the stomach touch, highlighting that Appellant touched MT’s legs hours ear-
lier, the kiss in the hallway, his statement that he intended to have sex with
MT (“but as soon as [she] passed out, I said no,”), and the fact that Appellant
slept in MT’s bed wearing only his underwear. My esteemed colleagues also
note that Appellant’s DNA was found on MT’s underwear. 2 On its face, these
facts are not favorable to Appellant.
2 It is important to qualify the DNA evidence in this case. The inside crotch area of the
underwear the Appellant and MT each was wearing, as well as MT’s shorts, was ana-
lyzed for DNA. The examination identified Appellant’s DNA on MT’s underwear and
shorts, and MT’s DNA on Appellant’s underwear. In response to the court-martial’s
question about the amount of male and female DNA in the underwear, the parties
stipulated to an answer: “MT’s underwear contained 1,034.18 nanograms of DNA, and
of that total, the amount that was male was 0.57 nanograms (with a trace amount of
34
United States v. Palacios Cueto, No. ACM 39815
However, these facts are spread out over hours, and the only fact of sub-
stance regarding this allegation related to MT’s stomach (other than Appellant
touched MT) is that Appellant apparently touched MT’s stomach after she
went to the bathroom or threw up. After weighing the evidence in the record of
trial and making allowances for not having personally observed the witnesses,
I am not convinced the Government proved the element that Appellant touched
MT to gratify his sexual desire beyond a reasonable doubt. Other than when
Appellant allegedly touched MT on her stomach, she provided no details as to
the touching and her testimony was nothing more than a series of “I don’t re-
member[s].” Just because Appellant’s DNA was found in MT’s underwear does
not mean it is a reasonable inference that Appellant also touched her stomach
in a sexual or erogenous manner at the only time it could have occurred. As
such, I find that the Government did not prove the element of intent to gratify
sexual desire beyond a reasonable doubt. For these reasons, I find this specifi-
cation to be legally and factually insufficient and would set aside the finding
of guilty to Specification 2 of the Charge and dismiss it with prejudice.
In setting aside the stomach specification, I would evaluate whether to re-
assess Appellant’s sentence. This court has “broad discretion” when reas-
sessing sentences. United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F.
2013). Our superior court has repeatedly held that if we “can determine to [our]
satisfaction that, absent any error, the sentence adjudged would have been of
at least a certain severity, then a sentence of that severity or less will be free
of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305, 308
(C.A.A.F. 1986). This analysis is based on a totality of the circumstances with
the following as illustrative factors: dramatic changes in the penalty landscape
and exposure, the forum, whether the remaining offenses capture the grava-
men of the criminal conduct, whether significant or aggravating circumstances
DNA attributed to a male other than [Appellant]); [Appellant]’s underwear contained
23.73 nanograms of DNA, and the amount that was MT’s was 4.6 nanograms.”
The government DNA expert opined the DNA source was from a biological fluid (based
on the size and quantity of the DNA), but did not rule out the possibility of skin cells
as the source of the DNA. The Government’s DNA expert did not test for saliva, sweat,
smegma, or urine. The defense DNA expert testified the DNA could come from either
biological fluids or skin cells. Further, if the DNA was from a biological fluid, it was an
uncontroverted fact that it was not semen, spermatozoa, or any seminal fluid, and
there was no evidence it was vaginal fluid (nor was Appellant’s underwear tested for
vaginal fluid). USACIL had the technology to test for vaginal fluid, but did not. One
flaw from the testimony of both experts was an explanation of what constitutes a nano-
gram. A nanogram is one billionth of a gram, which given the amounts provided, would
have been an infinitesimal amount of DNA.
35
United States v. Palacios Cueto, No. ACM 39815
remain admissible and relevant, and whether the remaining offenses are the
type that we as appellate judges have experience and familiarity with to relia-
bly determine what sentence would have been imposed at trial. Winckelmann,
73 M.J. at 15–16. Applying these factors to this case, I am confident that reas-
sessment is appropriate.
The penalty landscape in Appellant’s case has changed. Setting aside the
convictions for the touching of MT’s stomach, the maximum confinement,
which was 14 years, is reduced by seven years to a new maximum of seven
years. The other sentence components are not changed. This reduction in solely
the maximum confinement weighs in favor of reassessment. Reviewing the en-
tire record, and taking into consideration Appellant would have a single con-
viction for a single kiss, I would disapprove Appellant’s bad-conduct dis-
charge. 3
B. Ineffective Assistance of Counsel
Appellant argues his counsel was ineffective in failing to present an effec-
tive sentencing case. I agree with Appellant, but for different reasons than his
counsel have alleged. 4
1. Amendments to Article 120, UCMJ
There is a conspicuous issue that needs to be addressed related to the
charges of abusive sexual contact in this case. Had either the kiss or stomach
touch allegations occurred after the implementation of the Military Justice Act
of 2016 on 1 January 2019, neither the kiss nor the stomach touch would have
been an abusive sexual contact crime under Article 120, UCMJ. This is because
the law changed. Under the 2016 MCM, the definition of abusive sexual contact
included the touching of any body part of any person. See 2016 MCM, pt. IV,
¶ 45.b.(8). 5 Congress removed this definition, touching of any body part, in the
3 Appellant did not raise as an assignment of error “sentence appropriateness,” nor did
he raise an issue of cruel and unusual punishment for having to register as a sex of-
fender for these offenses under the Eighth Amendment. U.S. CONST. amend. VIII. Ap-
pellant’s convictions, along with the expansion of sex offender requirements since
United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) particularly within the De-
partment of Defense, begs the question as to when do the collateral consequences of
such convictions look more like a punishment. See United States v. Diaz, 967 F.3d 107,
111–12 (2d Cir. 2020) (Calabresi, J., concurring) (per curiam) (providing a judicial take
on the negative effects of sex offender registration).
4 I adopt the law cited by the majority opinion on ineffective assistance of counsel.
5 Under the 2016 MCM, “sexual contact” means: “(A) touching, or causing another per-
son to touch, either directly or through the clothing, the genitalia, anus, groin, breast,
36
United States v. Palacios Cueto, No. ACM 39815
National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub.
L. No. 114-328, § 5430, 130 Stat. 2000, 2929 (23 Dec. 2016). The Senate Report
on the 2017 NDAA provides some insight on the removal of this language from
the definition of “sexual contact.” Although the report did not annotate any
specific reasoning for the removal of this language, the report noted that “[t]he
current definition of ‘sexual act’ under Articles 120 and 120b[, UCMJ,] is both
overly broad (in that it captures non-sexual acts) and unduly narrow (in that
it does not include all the prohibited acts involving children listed in section
2246(2)(D)) of title 18.” 6 In light of this reasoning, specific body parts are now
listed in the statute and “stomach” and “mouth” are not included.
The 2017 NDAA was enacted on 23 December 2016, and the amendments
to the 2017 NDAA were to take effect on 1 January 2019. However, the Presi-
dent implemented guidance on the amendments in March 2018 through Exec-
utive Order 13,825, 2018 Amendments to the Manual for Courts-Martial,
United States, 83 Fed. Reg. 9889 (8 Mar. 2018), three-and-a-half months before
Appellant committed his crimes. Unfortunately for Appellant, it took the Pres-
ident nearly 13 months after the NDAA was signed to issue executive guidance
and another nine months to implement congressional intent. Again, the new
definition of sexual contact does not list “mouth” or “stomach” as body parts
that can be touched to gratify the sexual desire of a person. While the Govern-
ment charged the stomach touch as part of the initial allegation when it pre-
ferred the case in March 2019, it added the kiss specification as a charge after
MT’s SVC requested the Government charge him with that offense at the Ar-
ticle 32, UCMJ, preliminary hearing; all charges, including the kiss specifica-
tion, were referred to trial in May 2019—after the 2017 NDAA, the President’s
Executive Order, and implementation of the amended statute went into effect.
The change in the law as it relates to the charged offenses is important not
just for the fact Appellant now has a conviction for touching MT’s stomach and
giving her a kiss; it is because Appellant, presumably, is now registered a sex
offender. According to the Department of Defense Instruction (DoDI) 1325.07,
Administration of Military Correctional Facilities and Clemency and Parole
inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade
any person; or (B) any touching, or causing another person to touch, either directly or
through the clothing, any body part of any person, if done with an intent to arouse or
gratify the sexual desire of any person.” Pt. IV, ¶ 45.a.(g)(2). All of section (B) was
removed from the Manual for Courts-Martial, United States (2019 ed.). See 2019 MCM,
pt. IV.
6 S. REP. NO. 114-255, at 617 (2016).
37
United States v. Palacios Cueto, No. ACM 39815
Authority (11 Mar. 2013), the stomach touching charge is a registerable of-
fense. 7 As this relates to Appellant’s proceedings, had trial defense counsel ad-
dressed this change in the law, at any point in the processing of this case, a
different outcome very well may have occurred, and there is a possibility Ap-
pellant’s maximum confinement exposure would have been reduced, and more
importantly, he could have possibly averted sex offender registration. 8
2. Appellant’s Unsworn Statement and Sex Offender Registration
7 The stomach touching charge carries a Code 120-DF in the Defense Biometric Iden-
tification System. See DoDI 1325.07, Table 6, at 84. DoDI 1325.07 makes it clear that
Appellant will have to register as a sex offender:
A Service member who is convicted in a general or special court-mar-
tial of any of the offenses listed . . . , must register with the appropriate
authorities in the jurisdiction . . . in which he or she will reside, work,
or attend school, upon leaving confinement, or upon conviction if not
confined.
DoDI 1325.07, App. 4 to encl. 2, ¶ 1, at 79 (emphasis added). Further, the DoDI
states,
A Service member convicted of any offenses listed . . . or convicted of
offenses similar to those offenses listed . . . , shall be advised that the
individual jurisdictions in which the offender might live, work, or at-
tend school may require registration for offenses not listed . . . . Each
registration jurisdiction sets its own sex offender policy and laws.
Id., App. 4 to encl. 2, ¶ 3, at 79.
8 The reasonableness of charging Appellant with these allegations is questionable. As
stated in United States v. Hurd,
[T]he Government has an inherent, almost-proprietary interest in doc-
umenting a service member’s misconduct. It should normally be al-
lowed to do so, except in those rare cases when true prosecutorial over-
reaching clearly evidences an unreasonable piling on of excessive
charges, to the point where one “knows it when [he or she] sees it,” . . . .
No. 200101126, 2004 CCA LEXIS 37, at *16–17 (N.M. Crim. Ct. App. 24 Feb. 2004)
(unpub. op.) (second alteration in original) (citation omitted). In light as to how the
record unfolded, particularly given the addition of the kiss charge, the charging in this
case is close to being excessive and unreasonable and exposed Appellant to several
collateral consequences. The numerous changes to the Manual for Courts-Martial
since 2007, along with the expansion of sex offender registration requirements high-
light the importance of discretion in the prosecution of offenses—AFOSI Reports of
Investigations should not be treated as law school exams and not every alleged wrong
should be on a charge sheet. The Government has an obligation to monitor statutory
changes, and not once, but twice, was the Government on notice of the change in the
law with the 2017 NDAA and the President’s Executive Order.
38
United States v. Palacios Cueto, No. ACM 39815
The change in the law is wholly relevant to Appellant’s unsworn statement.
Appellant argues it was error on behalf of his trial defense counsel to advise
him not to reference the consequences of his federal conviction that he would
be required to register as a sex offender, and in fact, Appellant did not make
any reference to sex offender registration requirements during his unsworn
statement. The majority rightfully notes, under United States v. Talkington,
trial defense counsel had no duty to inform the members of matters that are
an improper consideration for sentencing, much less to do so through their cli-
ent’s unsworn statement. 73 M.J. 212, 216 (C.A.A.F. 2014) (citations omitted).
In Talkington, the United States Court of Appeals for the Armed Forces held
that “sex offender registration operates independently of the sentence ad-
judged and remains a collateral consequence,” and “the requirement that [an
a]ppellant register as a sexual offender is a consequence of his conviction that
is separate and distinct from the court-martial process.” 73 M.J. 212, 216–17
(C.A.A.F. 2006) (citations omitted).
However, the failure to have Appellant mention this change in the law in
his unsworn statement could have easily resulted in this court not even opining
in this case, as perhaps Appellant may have not received a bad-conduct dis-
charge. By failing to mention that the charges he was convicted of are no longer
sex offenses under Article 120, UCMJ, trial counsel was given ammunition to
argue what can only be described as an unreasonable sentencing argument
(which will be discussed shortly).
Trial defense counsel may have had valid strategic reasons for not wanting
to mention sex offender registration requirements, but we do not know those
reasons. This court asked for affidavits requesting information on the issue of
whether the Defense failed to prepare an effective sentencing case. Appellant’s
civilian defense counsel did not comment on this issue, and his military defense
counsel stated, “I did not advise [Appellant] to include federal sex offender reg-
istration as part of his unsworn statement.” Talkington cautions, and in many
ways, discourages trial defense counsel from raising sex offender issues, and if
the subject is brought up, military judges are at liberty to provide an instruc-
tion to members that they should not consider this information for sentencing.
73 M.J. at 216. As one would expect, after they began deliberating on a sen-
tence, members did in fact ask the military judge in Appellant’s case, “[W]ill
he have to register as a sex offender?” The military judge gave members the
standard Talkington instruction, stating,
While the accused is permitted to address these matters in an
unsworn statement, these possible collateral consequences
should not part [sic] of your deliberations in arriving at a sen-
tence. Your duty [is] to adjudge an appropriate sentence for the
accused based upon the offenses for which he’s been found guilty,
39
United States v. Palacios Cueto, No. ACM 39815
that you regard as fair and just when it is imposed, and not one
whose fairness depends upon actions that others may or may not
take in this case.
Logically, most people would question how could there be ineffective assis-
tance of counsel in this case when the military judge would have told the mem-
bers to essentially disregard Appellant’s reference to sex offender registration.
This is a valid point, but the language in Talkington does not advise military
judges to instruct members they are to disregard sex offender references, in-
stead, it states: a “military judge ha[s] discretion to ‘temper[ ]’ [an] unsworn
statement with ‘appropriate instructions.’ ‘While the military judge’s discre-
tion in choosing whether to instruct upon such ‘collateral’ matters is broad, he
or she is required to give legally correct instructions that are tailored to the
facts and circumstances of the case.’” 73 M.J. at 217 (citations omitted).
There was no risk for the Defense in asking the military judge to use his
broad discretion in tailoring an instruction based on the facts and circum-
stances of this case. Even had the Defense asked for, and been denied, a tai-
lored instruction based on the change in the law as applied to Appellant’s case,
that ancillary issue could be before us now.9 I subscribe to Chief Judge Baker’s
concurring view in Talkington, where he states,
[Sex offender registration] may be the most significantly stigma-
tizing and longest lasting effect arising from the fact of convic-
tion. Therefore, in my view, it is not good enough to call it collat-
eral and leave it to the members to sort out what to make of it
based on their own perceived, received, and often erroneous un-
derstanding of registration. A tailored and appropriate instruc-
tion is required.
73 M.J. at 218 (Baker, C.J., concurring). In this specific case, Appellant’s fail-
ure to not mention the change in the law and sex offender registration mat-
tered, as it prevented the military judge from having the opportunity to craft
a tailored instruction based on this extraordinary issue.
Appellant was prejudiced in this error, as members were unaware of this
significant issue and perhaps unreasonably believed Appellant had committed
serious sex offenses. Sex offender registration may be a collateral consequence,
9 The military judge asked civilian defense counsel about sex offender registration,
asking, “I noticed that -- at least I didn’t see that you mentioned, . . . sex offender
registration anywhere in the unsworn, or -- either oral or written. Is that something
that you were planning on arguing . . . .” Civilian defense counsel responded, “No. No,
Your Honor.”
40
United States v. Palacios Cueto, No. ACM 39815
but Appellant’s case exposes a reality that not all sex-related offenses are cre-
ated the same to warrant such a harsh collateral consequence, particularly
given Appellant’s crimes are no longer sex offenses under the Government’s
charging scheme. Despite the majority’s comment that “[t]he owner of an ac-
cused’s unsworn statement is that accused,” see United States v. Marcum, 60
M.J. 198, 209 (C.A.A.F. 2004), given the severity of sex offender registration,
Appellant should have been counseled on this; there was no benefit, nor legit-
imate strategic reason in failing to do so. 10 The failure by Appellant’s trial de-
fense counsel address the change in the law, and/or inclusion of this infor-
mation in Appellant’s unsworn statement, demonstrated ineffective assistance
of counsel. I respectfully disagree with my colleagues on this assignment of
error. 11
C. Government’s Arguments during Sentencing and on “Justice”
The majority succinctly outlined trial counsel’s comments made about jus-
tice, finding portions of trial counsel’s argument amounted to obvious error.
However, Appellant’s assignment of error also mentions that trial counsel com-
mitted prosecutorial misconduct when trial counsel argued that justice would
only be served if Appellant was convicted and adjudged a sufficient punish-
ment. It is worth looking at the Prosecution’s sentencing argument, where as-
sistant trial counsel continued their theme of justice.
In terms of a punishment, assistant trial counsel argued, “I would reason-
ably submit and ask you to enter the government’s recommended sentence of
two years of confinement, reduction to the grade of E-1, and a dishonorable
discharge,” and stating, “[W]e can break it down for a year for every abusive
sexual contact. We’re not over-asking, we’re not over-reaching to try to bargain.”
(Emphasis added). Assistant trial counsel went on to say, “[Appellant] needs a
significant amount of confinement time that’s going to be -- that will be com-
mensurate with the seriousness of the offenses here,” and “the government,
trial counsel, we sincerely hope that two years of confinement will provide him
with the necessary tools he needs to reintegrate back to society. And we are
10 In Appellant’s clemency, Appellant did advise the convening authority that the
crimes of which he was found guilty were no longer sex offenses.
11 Further, regarding ineffective assistance of counsel, in his unsworn statement, Ap-
pellant stated he was a Peruvian immigrant.. There are two obvious questions not
raised in the record: what was Appellant’s immigration status at the time of trial, and,
if he was not a citizen, whether a bad-conduct discharge and conviction would result
in deportation. If this was an issue, and Appellant’s counsel did not at least address
this, it may have had an effect on sentence appropriateness at our level and additional
ineffective assistance of counsel considerations.
41
United States v. Palacios Cueto, No. ACM 39815
not even near seeking the maximum amount of confinement time here, which
again, is 14 years.” Assistant trial counsel also stated,
This is not an 18-year-old slick-sleeved [A]irman living in the
dorms. And you cannot correct 34 years of learning bad behavior
in just a few months, or even a couple years. But yet, we are still
giving him the benefit of the doubt with asking for two years of
confinement. He needs confinement long enough to learn to
change his ways going forward.
Assistant trial counsel referred to Appellant as a “predator” 11 times and
concluded the argument stating, “A sufficient punishment that will bring jus-
tice here to this case, and that will bring some form of closure to [MT] for all
that she has [ ] endured in this year-and-a half nightmare . . . [is] two years of
confinement, reduction to the grade of E-1, and a dishonorable discharge.”
Civilian defense counsel did not object to assistant trial counsel’s argu-
ment. We review prosecutorial misconduct and improper argument de novo.
United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation omitted), cert.
denied, 140 S. Ct. 2566 (2020). When no objection is made at trial, we review
for plain error. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018) (ci-
tations omitted). “Plain error occurs when (1) there is error, (2) the error is
plain or obvious, and (3) the error results in material prejudice to a substantial
right of the accused.” Id. at 401 (quoting Fletcher, 62 M.J. at 179). We do not
review counsel’s words in isolation; we review the argument in context of the
entire court-martial. United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000)
(citations omitted). If we find a prosecutor’s argument “amounted to clear, ob-
vious error,” we then determine “whether there was a reasonable probability
that, but for the error, the outcome of the proceeding would have been differ-
ent.” Voorhees, 79 M.J. at 9 (internal quotations marks and citations omitted).
It is improper for trial counsel to make arguments that “unduly . . . inflame the
passions or prejudices of the court members.” United States v. Frey, 73 M.J
245, 248 (C.A.A.F. 2014) (quoting United States v. Marsh, 70 M.J. 101, 102
(C.A.A.F. 2011)).
When you look at both closing and sentencing arguments, both trial counsel
were undeniably trying to inflame the passions of the members. “Thirty-four
years of learning bad behavior?” This comment was made despite the fact that
during his unsworn statement, Appellant told the court he was a Peruvian im-
migrant, with a college degree in economics, who joined the Air Force in 2017
as he “wanted to earn the privilege to be here by serving in the military.” There
was no evidence – none – of a lifetime of “bad behavior.” One only needs to look
at how the Prosecution viewed “justice” in this case by looking at their own
sentence recommendation for a half-second kiss and an indeterminate stomach
touching. The moment trial counsel tried to rationalize the recommendation,
42
United States v. Palacios Cueto, No. ACM 39815
any seasoned military justice practitioner would see the Government was in
fact over-reaching and trying to bargain with the members by asking for an
unreasonably high sentence in the hopes it would drive up the ultimate sen-
tence adjudged by the members. A dishonorable discharge and a year in jail for
a peck on the lips, and another year in jail for touching MT’s stomach (with no
context), indicates trial counsel were not seeking a punishment based on the
offenses of which Appellant was convicted; they were seeking a punishment as
if to save face for losing the gravamen offense. “[E]very attorney in a court-
martial has a duty to uphold the integrity of the military justice system.”
United States v. Voorhees, 79 M.J. 5, 15 (C.A.A.F. 2019) (citation omitted). In
reviewing this case de novo, it is debatable whether those prosecuting this case
understood the meaning of reasonableness or justice, as this was an unfathom-
able recommendation based on the crimes of which Appellant was convicted
and a recommendation of this sort challenged the integrity of our system. I find
there was plain error with both trial counsel arguments, and given that Appel-
lant was adjudged a bad-conduct discharge, I believe those arguments materi-
ally prejudiced Appellant, as there is a reasonable probability that the outcome
of the proceeding would have been different had trial counsel not committed
error.
In his closing argument, trial counsel admonished the members, “You will
have the ultimate decision on . . . whether justice will be served, or whether the
accused will be acquitted,” as if to say an acquittal would not be justice. Civilian
defense counsel responded these are “words that should never come out of a
prosecutor’s mouth;” I agree. The majority commented that “‘Justice’ must be
tethered to the evidence and the burden of proof lest it be confused with justice
for the victim or society or the military justice system.” Unfortunately for Ap-
pellant, looking at his case as a whole, I question whether “justice” has been
served.
I respectfully dissent.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
43