United States v. Keeter ( 2018 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
_________________________
No. 201700119
_________________________
UNITED STATES OF AMERICA
Appellee
v.
Darin H. KEETER
Lieutenant Commander (O-4), U.S. Navy
Appellant
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Captain David Harrison, JAGC, USN.
For Appellant: Lieutenant Commander William L. Geraty,
JAGC, USN.
For Appellee: Captain Brian L. Farrell, USMC;
Major Kelli A. O’Neil, USMC.
_________________________
Decided 3 October 2018
_________________________
Before FULTON, CRISFIELD, and, HITESMAN Appellate Military Judges
_________________________
This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
_________________________
FULTON, Senior Judge:
At a general court-martial, a panel of officers convicted the appellant,
contrary to his pleas, of one specification of attempted sexual assault of a
child, two specifications of attempted sexual abuse of a child, and one
specification of solicitation to produce and distribute child pornography, in
United States v. Keeter, No. 201700119
violation of Articles 80 and 134, Uniform Code of Military Justice, (UCMJ). 1
The members sentenced the appellant to three years’ confinement and a
dismissal. The convening authority approved the sentence as adjudged and,
except for the dismissal, ordered the sentence executed.
In five assignments of error, the appellant contends: (1) the evidence is
factually and legally insufficient to prove that he intended to engage in sexu-
al intercourse with a person who had not yet attained the age of 16 years; (2)
the military judge gave erroneous instructions; (3) he was denied effective
assistance of counsel; (4) the military judge abused his discretion by admit-
ting testimony that he previously ruled was not relevant; and (5) the assis-
tant trial counsel committed prosecutorial misconduct through improper
argument.
After careful consideration of the record of trial and the parties’ plead-
ings, we are satisfied that the findings and sentence are correct in law and
fact, and that no error materially prejudicial to the substantial rights of the
appellant occurred. 2
I. BACKGROUND
As part of a Naval Criminal Investigative Service (NCIS) undercover op-
eration targeting would-be child sex abusers, Master-at-Arms Third Class
(MA3) R posted a personal ad on Craigslist. In the ad, MA3 R—who was in
fact an adult female on active duty in the United States Navy–posted a pic-
ture of herself at age 14 or 15, but listed her age as 89. The appellant re-
sponded to the ad, and the two started exchanging text messages.
Early in the message exchange, “Cris” (as MA3 R called her persona in
the ad) stated that she was a military dependent who was almost 15 years old
and homeschooled by her single mother, who also had a full-time job. Over
the next few days, MA3 R maintained her young persona as the messages be-
came overtly sexual, culminating with the appellant sending naked pictures
of himself and messages encouraging Cris to masturbate. The appellant
agreed to drive to Cris’s home to meet her at a time when Cris had assured
the appellant that her mother would be absent. NCIS apprehended the appel-
lant when he arrived at the agreed-upon location.
We will address the remaining relevant facts in the discussion.
1 10 U.S.C. §§ 880, 934 (2016).
2 Arts. 59(a) and 66(c), UCMJ.
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United States v. Keeter, No. 201700119
II. DISCUSSION
A. Legal and factual sufficiency
Although the appellant does not contest the underlying acts that form the
basis of the charges, he argues that they are legally and factually insufficient.
First, the appellant argues that no reasonable finder of fact could have con-
cluded that the appellant, having seen the five photographs he received from
MA3 R, would have thought that MA3 R was under 16. Second, the appellant
avers that the evidence at trial only established “a generalized desire for li-
bidinous gratification” and that “[i]t is not a fair inference based on the evi-
dence to summarily conclude that a person’s desire for some type of sexual
gratification necessarily implies a specific desire to engage in sexual inter-
course.” 3 We disagree.
We review questions of legal and factual sufficiency de novo. 4 The test for
legal sufficiency is “whether, considering the evidence in the light most fa-
vorable to the prosecution, any reasonable fact-finder could have found all the
essential elements beyond a reasonable doubt.” 5 In applying this test, “we are
bound to draw every reasonable inference from the evidence of record in favor
of the prosecution.” 6
The test for factual sufficiency is whether, “after weighing all the evidence
in the record of trial and recognizing that we did not see or hear the witness-
es as did the trial court, this court is convinced of the appellant’s guilt beyond
a reasonable doubt.” 7 In conducting this unique appellate role, we take “a
fresh, impartial look at the evidence,” applying “neither a presumption of in-
nocence nor a presumption of guilt” to “make [our] own independent determi-
nation as to whether the evidence constitutes proof of each required element
beyond a reasonable doubt.” 8 We may “judge the credibility of witnesses, and
3 Appellant’s Brief of 5 Sep 2017 at 16.
4 Art. 66(c), UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002).
5 United States v. Day, 66 M.J. 172, 173-74 (C.A.A.F. 2008) (citing United States
v. Turner, 25 M.J. 324, 324 (C.M.A. 1987)).
6 United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).
7 United States v. Rankin, 63 M.J. 552, 557 (N-M. Ct. Crim. App. 2006), aff’d 64
M.J. 348 (C.A.A.F. 2007) (citations omitted).
8 Washington, 57 M.J. at 399.
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United States v. Keeter, No. 201700119
determine controverted questions of fact,” and substitute our judgment for
that of the fact finder. 9 While this is a high standard, the phrase “beyond a
reasonable doubt” does not imply that the evidence must be free from con-
flict. 10
The government introduced 176 pages of text messages between the ap-
pellant and MA3 R playing the role of Cris. 11 She sent several pictures of her-
self to the appellant. In addition to the picture of her at age 14 or 15
contained in her initial ad, 12 she sent the appellant pictures of herself at ages
21, 13 16, 14 and 14. 15 On several occasions “Cris” tells the appellant that she is
only 14:
Im [sic] almost 15. 16
Im [sic] almost 15 and mature. 17
1.5 years more thenn [sic] I can drive on base. 18
So you just want a 14 year old friend???lol. 19
The appellant’s defense at trial was that he believed Cris was a “stay-at-
home spouse who was bored and wanting to chat.” 20 The appellant claimed
that he initially assumed that the “89” in the personal ad was a reference to
Cris’s birth year and that along with the pictures of MA3 R at 21 and 16
years old caused him to believe Cris was a 20-year-old spouse roleplaying as a
9 Art 66(c), UCMJ; United States v. Cole, 31 M.J. 270, 272 (C.M.A. 1990).
10 Rankin, 63 M.J. at 557.
11 Prosecution Exhibit (PE) 3.
12 PE 1.
13 Record at 312; PE 3 at 73.
14 Record at 321; PE 3 at 90.
15 Record at 258; PE 3 at 114.
16 PE 3 at 2.
17 Id. at 15.
18 Id. at 36.
19 Id. at 80.
20 Record at 391.
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United States v. Keeter, No. 201700119
14-year-old dependent. 21 The appellant admitted that the “flirtatious banter
back and forth” 22 eventually escalated to the appellant “sexting” and sending
nude pictures of himself to Cris because “[he] believe[d] that is what she
wanted to get from [him].” 23
Our independent consideration of the record of trial in this case leads us
to conclude that the members could reasonably have inferred that the appel-
lant believed that “Cris” was a person who had not attained the age of 16
years old. The members could have reasonably concluded that the appellant’s
account was implausible. MA3 R, in her role as Cris, was consistent in her
insistence that she was 14. The appellant conceded on cross examination that
Cris never once suggested her age was anything other than 14, or that she
had a husband. The appellant also admitted that he never confirmed that
Cris was an adult. In one text message, Cris wrote, “I mean you are older
dont [sic] want trouble for me or you lol.” A few message exchanges later, the
appellant stated that he had first thought that Cris must have been older
saying: “Figured you were early 20s” and “[a]fter all what teen would be post-
ing on [Craigslist].” Cris responded, “Me lol” and “i [sic] meant im [sic] the
teen that would post lol.” The appellant also asked Cris about her sexual ex-
perience, and told her how to masturbate. The questions and answers were
consistent with the appellant holding a subjective belief that he was corre-
sponding with a 14-year-old girl.
The appellant also claims the evidence was both factually and legally in-
sufficient to prove any intent to engage in sexual intercourse with Cris when
he went to her home. His testimony at trial was that his intent was to meet
Cris and see who she was and go grab a bite to eat. 24 The appellant asserts
that the lack of any explicit mention of intercourse in any text messages, and
the fact he had no condoms in his possession when he was apprehended,
demonstrates that he had no intent to engage in sexual intercourse with Cris
when he arrived at her home. But the evidence—including the appellant’s
testimony on cross-examination—supports the members’ conclusion that the
appellant intended to have sex with Cris. The appellant’s texts refer to his
desire to have a “friends with benefits” relationship with Cris. 25 On cross-
21 Id. at 406.
22 Id. at 413.
23 Id. at 419.
24 Id. at 425.
25 PE 3 at 77.
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United States v. Keeter, No. 201700119
examination, the appellant admitted that one “benefit” was sex. 26 The sexual
content of the text-message conversation between the appellant and Cris es-
calated quickly over just a few days. When he had determined that Cris’s
mother would be away, he arranged to visit her. Although he denied that he
believed he was talking to a child, he admitted on cross-examination that in-
tercourse with Cris was “possible” when they met. 27 Members could reasona-
bly infer from this evidence that the appellant intended to engage in sexual
intercourse with Cris.
After carefully reviewing the record of trial and considering all of the
evidence in a light most favorable to the prosecution, we are convinced that a
reasonable fact-finder could have found all the essential elements beyond a
reasonable doubt to support the findings of guilt in this case. Additionally,
after weighing all the evidence presented at trial and making allowances for
not having personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant’s guilt.
B. Instructional Error
The appellant alleges that the military judge’s instructions represented
plain error because they are “inaccurate, incomplete, inconsistent, and con-
fusing.” 28
Specifically, the appellant argues that the military judge’s failure to tailor
the instructions resulted in their misstating the mens rea for attempt; that
they included a confusing and irrelevant instruction on mistake of fact, and
that the instructions contradict themselves regarding the definition of minor,
as the term is used in this case.
Proper instructions to the members are a question of law we review de
novo. 29 We evaluate a military judge’s instructions “in the context of the
overall message conveyed” to the members. 30 When, as here, the appellant
“fails to preserve the instructional error by an adequate objection or request,
26 Record at 445.
27 Id. at 426.
28 Appellant’s Brief of 5 Sep 2017 at 19-21.
29 United States v. Payne, 73 M.J. 19, 22 (C.A.A.F. 2014).
30 See United States v. Prather, 69 M.J. 338, 344 (C.A.A.F. 2011) (internal quota-
tion marks omitted) (quoting Humanik v. Beyer, 871 F.2d 432, 441 (3d Cir. 1989)).
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United States v. Keeter, No. 201700119
we test for plain error.” 31 “Under a plain error analysis, the accused has the
burden of demonstrating that: (1) there was error; (2) the error was plain or
obvious; and (3) the error materially prejudiced a substantial right of the ac-
cused.” 32 In the context of instructional plain error, the third prong is satis-
fied if the appellant shows a reasonable probability that, but for the error
claimed, the outcome of the proceeding would have been different. 33 While the
military judge has wide discretion in crafting instructions, he or she must
provide an accurate, complete, and intelligible statement of the law. 34 In-
structions should be tailored to fit the circumstances of the case and provide
“lucid guideposts” to enable the court members to apply the law to the facts. 35
1. Inadequate tailoring of the instructions
The appellant was charged with attempting to sexually assault and sex-
ually abuse a child under the age of sixteen. The military judge instructed
the members on the elements of attempt, in violation of Article 80, UCMJ, as
well as the elements of the target offenses, as contained in Article 120b,
UCMJ. In connection with the target offenses, the military judge, using the
Military Judge’s Benchbook’s proposed instruction, told the members that
“‘Child’ means any person who has not attained the age of 16 years. The
prosecution is not required to prove the accused knew that Cris had not at-
tained the age of 16 years at the time the alleged sex act occurred.” 36 Alt-
hough this is a correct statement of law with respect to the target offense, the
appellant argues that the military judge should have tailored the instructions
by omitting the part of the instruction informing members that the govern-
ment did not have to prove that the appellant “knew that Cris had not at-
tained the age of 16 years.” He points out, correctly, that a person is not
guilty of an attempt unless he intends every element of the target offense.
31 United States v. Davis, 76 M.J. 224, 229 (C.A.A.F. 2017).
32 Id. at 230 (quoting Payne, 73 M.J. at 23).
33 United States v. Lopez, 76 M.J. 151, 154 (C.A.A.F. 2017)
34 United States v. Behenna, 71 M.J. 228, 232 (C.A.A.F. 2012).
35 United States v. Buchana, 41 C.M.R. 394, 396-97 (C.M.A. 1970) (citations omit-
ted); see also United States v. Killion, 75 M.J. 209, 211 (C.A.A.F. 2016) (a military
judge’s instructions must be sufficient to provide necessary guideposts for an in-
formed deliberation on the guilt or innocence of the accused).
36 Record at 484-85. See also Military Judges’ Benchbook, Dept. of the Army
Pamphlet 27-9, para 3-45b-2, Note 3 (10 Sep 2014).
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United States v. Keeter, No. 201700119
Informing the members that under Article 120b, UCMJ, the prosecution was
not required to prove that the appellant knew that Cris was under 16 was
plain error, according to the appellant, because it tended to excuse the gov-
ernment from having to prove that the appellant specifically intended to sex-
ually assault or abuse a child under 16.
We have considered the instructions in their entirety, and we do not agree
that the military judge’s failure to sua sponte tailor the standard instruction
constituted plain error. The military judge correctly explained the elements of
Article 80, UCMJ, to the members. He informed them that the government
was required to prove that the appellant “believed [Cris] had attained the age
of 12 but had not attained the age of 16 years” in order to convict him of at-
tempt. 37 Then, as part of a defense-requested mistake-of-fact instruction, the
military judge returned to the matter of what the appellant must have be-
lieved in order to be guilty:
I advised you earlier that to find the accused guilty of the of-
fenses of attempted sexual assault of a child and attempted
sexual abuse of a child, you must find beyond a reasonable
doubt that the accused had the specific intent to commit a sex-
ual act . . . with a person he believed had not attained the age
of 16 and that the accused had the specific intent to commit a
lewd act, to wit, intentionally exposing his genitalia to a person
who he believed had not attained the age of 16 . . . [.] 38
The complained of instruction, while perhaps surplusage, does not con-
tradict the military judge’s repeated and correct description of the govern-
ment’s burden to prove that the appellant believed that Cris was under 16. Of
course the government was not required to prove that the appellant knew
that Cris was under 16; Cris was the persona of an adult law enforcement
agent. While we agree that the instruction might have been made more clear
by tailoring it in the way the appellant now suggests, or by giving the option-
al Benchbook instruction on factual impossibility in the context of attempts, 39
the military judge’s instruction did not constitute plain or obvious error.
37 Record at 481.
38 Id. at 495.
39 See Military Judges’ Benchbook, Dept. of the Army Pamphlet 27-9, para 3-4-1,
Note 4 (10 Sep 2014).
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United States v. Keeter, No. 201700119
Even had the complained of instruction constituted plain or obvious error,
we are convinced beyond a reasonable doubt that it did not contribute to the
verdict. The main issue before the members was clear. The appellant had
been corresponding with a person who claimed to be a 14-year-old girl. The
appellant claimed that he knew he was talking to an adult. Both parties’ the-
ories of the case were organized around this question. The military judge cor-
rectly described the elements of the offenses and allocated the burden of proof
to the government several times during his instructions. None of this was di-
rectly contradicted by the instruction in question, which was not relevant to
the facts in this case. We find this assignment of error to be without merit.
2. Erroneous inclusion of a mistake of fact instruction
In accordance with the civilian defense counsel’s (CDC’s) request, the mil-
itary judge instructed the members on the defense of mistake of fact. The
facts of this case do not suggest that the appellant had a mistake of fact de-
fense available to him. But, as the appellant notes in his brief, the invited er-
ror doctrine poses an obstacle to our consideration of this purported error.
The appellant’s CDC asked the military judge to give a mistake of fact in-
struction and did not object to the particular instruction the military judge
agreed to give. Invited error does not provide a basis for relief. 40
3. Inconsistent definitions of term minor
The appellant asserts that the military judge committed plain error by
providing conflicting instructions relating to Cris’s age. In the sole specifica-
tion under Charge II, soliciting the creation and distribution of child pornog-
raphy in violation of Article 134, UCMJ, the government alleged that the
appellant solicited a person he believed to be under 16 years old. The military
judge’s instruction on the elements of the offense was consistent with the
specification: in order to convict the appellant the members needed to find
that he wrongfully solicited an individual who he did not believe had attained
the age of 16 years. But when the military judge defined the term minor for
the members, he used the definition in the Manual for Courts-Martial: a per-
son under the age of 18. 41 The appellant alleges that the military judge’s in-
structions are plain error because they might have permitted the members to
convict the appellant even if he thought that Cris was 16 or 17.
40 United States v. Martin, 75 M.J. 321, 325 (C.A.A.F. 2016); United States v.
Harvey, 67 M.J. 758, 763-64 (A.F. Ct. Crim. App. 2009) (defense-requested omission
of Marcum factors from military judge’s instructions does not provide basis for relief).
41 MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), Part IV, ¶ 68b.c.4.
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United States v. Keeter, No. 201700119
We find that the instructions were not error, let alone plain error. The
military judge instructed the members consistently with the specification,
and gave the definitions found in the Manual. Had the members thought that
the appellant found he was corresponding with a 16- or 17-year-old, they
could have indicated this finding through exceptions and substitutions. But
there is no evidence in the record to suggest that the appellant thought he
was dealing with a 16- or 17-year-old. The appellant insisted he thought we
was corresponding with a woman in her twenties, and Cris identified herself
as a 14-year-old. The instructions complained of here were correct and did not
prejudice the appellant. This assignment of error is without merit.
C. Ineffective assistance of counsel
The appellant claims his CDC was ineffective because he requested the
mistake of fact instruction discussed above. Though requesting the instruc-
tion was error, we do not find that counsel was ineffective.
The Sixth Amendment entitles criminal defendants to representation that
does not fall “below an objective standard of reasonableness” in light of “pre-
vailing professional norms.” 42 In assessing an appellant’s claim that his coun-
sel was ineffective, appellate courts apply the two-pronged test announced in
Strickland v. Washington. In order to prevail, an appellant must demonstrate
that his counsel’s errors were so serious that the appellant’s lawyer “was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment. Second,
[he] must show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive the de-
fendant of a fair trial, a trial whose result is reliable.” 43 We review perfor-
mance and prejudice de novo. 44
We need not decide in this case whether CDC’s decision to request a mis-
take of fact instruction was an error of such magnitude that it satisfies
Strickland’s first prong. We find that the appellant has not demonstrated a
reasonable probability that the result of the trial would have been different
without the instruction. The instruction was superfluous in this case, and did
not relate to either side’s version of the facts. But the members were properly
42 Strickland v. Washington, 466 U.S. 668, 688 (1984). See also United States v.
Knight, 53 M.J. 340, 342 (C.A.A.F. 2000) (citing United States v. Palenius, 2 M.J. 86
(C.M.A. 1977)).
43 Strickland, 466 U.S. at 687.
44 United States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012).
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United States v. Keeter, No. 201700119
instructed as to the elements of the offenses and the correct burden of proof.
The addition of a superfluous instruction does not cause us to believe that the
members did not understand the real issue before them: if the appellant
knew he was talking to an adult, he was not guilty of attempting to commit
offenses against a child. We are confident, based on the totality of the in-
structions, that the members grasped this question and were able to properly
apply the facts to the law. This assignment of error is without merit.
D. Testimony pertaining to the NCIS undercover operation
The appellant alleges that the military judge abused his discretion by
permitting testimony and argument about how people other than the appel-
lant tended to react to the undercover agent in this particular operation. Dur-
ing the government’s case in chief, a supervisory NCIS agent offered testi-
mony that only a small percentage of subjects continue to engage with the
undercover agent after the agent tells the subject that she is underage. The
military judge sustained the objection, but warned the CDC that cross-
examination might open the door to this testimony later.
The government’s next witness was MA3 R, who had played the role of
Cris. The defense cross-examined MA3 R. One of the themes in the defense’s
cross-examination was the contention that MA3 R continued to interact with
the appellant even though he had not engaged in sexually explicit conversa-
tion after three days. The CDC contended that MA3 R—and not the appel-
lant—had been the one to introduce sexual themes into the exchange. The
CDC asked MA3 R what guidance she had been given about when to end a
conversation, and asked if NCIS had a standard operating procedure that
guided that decision. MA3 R testified that she had no written guidance. But
she stated that she would end a conversation when a subject took an “exit
ramp”—described as an age reminder or just “an opportunity [for the subject
of the investigation] to think about what’s happening.” 45 MA3 R insisted that
it would have been premature to end the conversation with the appellant,
and that he—not she—had escalated the conversation. MA3 R testified that
she might, depending on the situation, let a conversation go for months with-
out terminating it, even if it had not turned sexual.
On redirect, the assistant trial counsel asked MA3 R how many people
who responded to the Craigslist ad stopped responding. MA3 R replied, “Ap-
proximately 90 percent.” 46 The assistant trial counsel asked if people who
45 Record at 252.
46 Id. at 335.
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United States v. Keeter, No. 201700119
stopped responding were investigated, and MA3 R replied that they were not.
The CDC did not object to either of these questions or answers.
The appellant claims that the admission of this evidence was error, and
that the appellant’s objection to similar testimony from MA3 R’s supervisory
agent preserved the error for our consideration. The government argues that
the appellant opened the door to the testimony and, alternatively, that any
objection was waived. We find that the objection to testimony from a previous
witness preserved the issue, and we will test for plain error.
Again, plain error requires that the appellant demonstrate that: (1) there
was error; (2) the error was plain or obvious; and (3) the error materially
prejudiced a substantial right to the accused. 47 We find that this testimony
was made marginally relevant by the CDC’s cross-examination of MA3 R,
and that its admission in the absence of an objection at the time was not a
plain or obvious error. The CDC’s cross-examination of MA3 R laid the
groundwork for the appellant’s critique of the NCIS investigation. Part of
that critique was the CDC’s assessment that the NCIS operation was flawed.
The NCIS operation, according to the CDC, was constructed in such a way
that it would have resulted in a bycatch of innocent service members unin-
terested in sexual offenses involving children.
The assistant trial counsel addressed the conduct of the NCIS operation
through the re-direct examination of MA3 R, including the question about
how many other people broke off contact with MA3 R, and whether those
people were investigated further. These questions and their answers are re-
lated to the issues raised by the CDC in his cross-examination. At a mini-
mum, their admission is not plain or obvious error, and we decline to grant
relief on the basis of this testimony.
E. Argument pertaining to the NCIS undercover operation
The appellant further complains that the portion of the assistant trial
counsel’s argument addressing this testimony was prosecutorial misconduct
for two reasons: first, because the underlying testimony about most subjects
breaking off contact with the investigator was itself error, and second, be-
cause the trial counsel misstated the evidence when he argued that these
subjects broke off contact when they learned that Cris was 14. In this connec-
tion, the appellant correctly points out that MA3 R did not testify that the
reason others disengaged with the investigator was because she told them
that she was 14.
47 Davis, 76 M.J. at 229.
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United States v. Keeter, No. 201700119
“Prosecutorial misconduct can be generally defined as action or inaction
by a prosecutor in violation of some legal norm or standard, e.g., a constitu-
tional provision, a statute, a Manual rule, or an applicable professional ethics
canon.” 48 Improper argument is a type of prosecutorial misconduct. 49 We re-
view allegations of prosecutorial misconduct in the form of improper argu-
ment de novo. 50 If proper objection is made, as was the case here, we review
for prejudicial error. 51
Having found that the unobjected to testimony about other subjects
breaking off contact with investigators was properly admitted, we similarly
find that it was not error for the trial counsel to refer to this evidence during
argument. As for whether the assistant trial counsel misstated the evidence,
the government contends, and we agree, that the trial counsel inferred that
the reason other subjects broke off contact with the investigators was because
the investigator claimed to be a child. Trial counsel did not state that this
had been MA3 R’s testimony. But it is reasonable to conclude and properly
argue that learning that a correspondent is 14 years old would be a common
reason for an adult to break off a text conversation. The assistant trial coun-
sel did not err by drawing this inference.
Even if the argument was erroneous, we would find that the error did not
prejudice the appellant’s substantial rights. We evaluate potential prejudice
by examining the severity of the misconduct, the measures adopted to cure
the misconduct, and the weight of the evidence supporting the conviction. 52
Importantly, we view the assistant trial counsel’s statements in the context of
the whole argument, and the whole trial. 53
The portion of the argument at issue here is very short, and was not part
of a pattern of inappropriate argument or other misconduct. It was not an at-
tack on the appellant or his counsel. Any impropriety was neither pervasive
48 United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citing Berger v. United
States, 295 U.S. 78, 88 (1935)).
49 United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017).
50 Id.
51 United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (citing Art. 59,
UCMJ, 10 U.S.C. § 859 (2000)).
52 Id. at 184.
53 See United States v. Yong, 470 U.S. 1, 11 (1985).
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United States v. Keeter, No. 201700119
nor severe. 54 Although the military judge did not take any specific curative
measures, he did properly instruct the members that “arguments of counsel
are not evidence in this case” and to “base the determination of the issues in
this case on the evidence as you remember it and apply the law as I instruct
you.” 55 Following closing and rebuttal arguments, the military judge reiterat-
ed, “[o]nce again, argument by counsel is not evidence . . . [t]o the extent that
any counsel may have vouched for or opined as to any witness’s credibility or
intent, you should disregard that” 56 and “[i]f the facts as you remember them
differ in any way that counsel states the facts, it is your memory that con-
trols.” 57 The government’s case was strong relative to the defense case. The
basic facts of the text exchanges were undisputed; the question for members
was the appellant’s intent. After observing him testify, the members were
satisfied that the appellant thought he was corresponding with a child and
that he intended to have sexual intercourse with her when he drove to meet
her.
Considering these factors—particularly the isolated and brief nature of
the alleged prosecutorial misconduct—we would decline to grant relief even if
we were convinced that the argument was erroneous.
III. CONCLUSION
The findings and sentence as approved by the convening authority are af-
firmed.
Judges CRISFIELD and HITESMAN concur.
FOR THE COURT
RODGER A. DREW, JR.
Clerk of Court
54 Cf. Fletcher, 62 M.J. at 185.
55 Record at 498.
56 Id. at 520.
57 Id. at 521.
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