United States v. Sewell

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Todd D. SEWELL, Sergeant
United States Army, Appellant
No. 16-0360
Crim. App. No. 20130460
Argued October 12, 2016—February 1, 2017
Military Judge: James Varley
For Appellant: Captain Ryan T. Yoder (argued); Lieutenant
Colonel Jonathan F. Potter (on brief); Major Christopher D.
Coleman.
For Appellee: Captain Linda Chavez (argued); Colonel
Mark H. Sydenham and Lieutenant Colonel A. G. Courie
III (on brief); Major Cormac M. Smith.
Judge RYAN delivered the opinion of the Court, in
which Chief Judge ERDMANN and Judges STUCKY
and SPARKS joined. Judge OHLSON filed a separate
opinion, concurring in part and dissenting in part.
_______________
Judge RYAN delivered the opinion of the Court.
A general court-martial composed of officer members
convicted Appellant, contrary to his pleas, of six specifica-
tions of indecent acts and one specification of assault with
intent to commit rape, in violation of Articles 120 and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920,
934 (2006 & 2012). The MJ dismissed Appellant’s Article 80,
UCMJ, 10 U.S.C. § 880 (2012), charge for attempted rape,
and the panel found Appellant not guilty of ten other specifi-
cations, including indecent exposure, unlawful touching, im-
peding an investigation, and communicating threats. The
panel sentenced Appellant to one year of confinement, a dis-
honorable discharge, reduction to E-1, and forfeiture of all
pay and allowances. The findings and sentence were ap-
proved by the convening authority and affirmed—with a
proviso for 30-days’ confinement credit—by the Army Court
United States v. Sewell, No. 16-0360/AR
Opinion of the Court
of Criminal Appeals (ACCA). United States v. Sewell, No.
ARMY 20130460, 2016 CCA LEXIS 58 at *3–4, 2016 WL
381340 at *1 (A. Ct. Crim. App. Jan. 29, 2016). We granted
review of the following issue in this case:
Whether the trial counsel committed prosecutorial miscon-
duct by making improper argument on the findings.
Some of trial counsel’s statements during argument were
improper. However, even assuming clear or obvious error,
see United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014),
we find no prejudice. The evidence underlying Appellant’s
convictions was demonstrably stronger than the evidence
underlying his acquittals, and we are “confident that the
members convicted [him] on the basis of the evidence alone.”
United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).
Finding no material prejudice to Appellant’s substantial
rights, we affirm the CCA. Article 59(a), UCMJ, 10 U.S.C. §
859(a) (2012).
I. FACTS
A. The Convictions
Appellant’s convictions involved six different individuals.
The panel convicted Appellant of four specifications that
arose from an allegation of sexual assault by PFC MN. Ap-
pellant was a noncommissioned officer in MN’s unit at Fort
Hood. Prior to the alleged incident, Appellant had extended
an open offer to MN to sleep in his spare bed in the event
she ever needed to do so. On her first night in the barracks,
MN was uncomfortable staying in her own room because her
roommate was hosting a guest, so she took Appellant up on
his offer. Appellant showed her to his spare bed and MN
eventually fell asleep. MN testified that she awoke to Appel-
lant on top of her, completely naked, kissing her and taking
off her shorts. After pushing Appellant off, MN left Appel-
lant’s room and went next door to the room of her close ac-
quaintance, JF. JF testified that MN was hysterical and up-
set when she entered her room, although JF did not mention
any specific references to sexual assault. In Appellant’s
Criminal Investigation Command (CID) interview, he admit-
ted—after amending his story several times—that MN was
indeed in his room, and that he was naked and rubbed lotion
on his groin before attempting to give her a hug. Appellant
was convicted of indecent conduct under Article 120 and
sexual assault under Article 134.
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United States v. Sewell, No. 16-0360/AR
Opinion of the Court
The panel also convicted Appellant of one count of inde-
cent conduct for masturbating in the presence of his ac-
quaintance and neighbor, EB. EB testified that she let Ap-
pellant into her apartment one morning when he claimed to
be locked out of his own. He sat on her living room couch
while she returned to her bedroom to get ready for work.
Shortly thereafter, she heard moaning and slapping skin.
EB briefly saw Appellant naked and masturbating on her
couch and quickly exited her apartment. In Appellant’s CID
interview, he admitted that he was naked in EB’s apartment
but told investigators that he got undressed in his sleep and
was covered by a blanket.
Finally, the panel convicted Appellant of sending or
showing images of his penis to four different individuals
without their consent. In the course of its investigation, CID
recovered 118 images of Appellant’s penis on his cell phone.
Nine of these images were admitted as evidence at trial. CC,
SG, and EW each testified that they received unwanted im-
ages of Appellant’s penis via text message. A fourth individ-
ual, JF, testified that Appellant displayed an image of his
penis on his phone while she rode in the passenger seat of
his vehicle. Each witness either described the photos sent by
Appellant or identified them as identical or similar to the
images admitted into evidence.
B. The Acquittals
The panel acquitted Appellant of ten specifications. Two
of these acquittals were related to incidents involving MN
and EB, namely allegations that he contacted MN for the
purpose of impeding an investigation and that he intention-
ally exposed himself to EB in her apartment.
The remaining eight specifications of which Appellant
was acquitted arose from two other alleged incidents. Four
specifications of indecent conduct and one specification of
unlawful touching were based on allegations related to a
house party that Appellant attended with two of his accus-
ers, KS, who was the owner of the home, and KP. At some
point during the party, Appellant went outside to sit in his
jeep. KS testified that she noticed this and walked out to en-
gage Appellant in a conversation at his vehicle. She warned
him against driving drunk and offered to let him stay the
night. Appellant allegedly accepted her offer and, while still
sitting in his jeep, asked KS to turn around so that he could
change into pajamas. After he had supposedly changed, he
signaled KS to turn back around, and when she did so she
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United States v. Sewell, No. 16-0360/AR
Opinion of the Court
saw him naked and masturbating. KS testified that she felt
“shocked” by the incident, but afterward she let Appellant
stay the night at her home and sleep on her couch with two
other female guests, KP and LA.
KP confirmed that she slept on the couch with Appellant,
despite hearing that Appellant had been observed mastur-
bating in his jeep. KP testified that she awoke at one point
during the night to find Appellant ejaculating on her foot.
The Government presented no witnesses or corroborating
evidence to support KS and KP’s accusations. Nor did Appel-
lant admit any inculpatory facts to support either incident.
The final three specifications of which Appellant was ac-
quitted arose from an allegation that he exposed his penis to
ST, the thirteen-year-old daughter of his roommate in Cop-
peras Cove, Texas. 1 ST’s father allegedly left her at his
apartment with Appellant while, according to ST, her father
visited his new girlfriend in a hotel room overnight. ST testi-
fied that she was doing homework on her computer while
sitting on the couch next to Appellant as he watched TV in
his pajamas. At some point, she looked over and saw Appel-
lant’s exposed penis through the unbuttoned hole of his pa-
jama pants. ST also testified that she later awoke to Appel-
lant covering her with a blanket while she slept on the
couch, but that she could not remember clearly if he was na-
ked when he did so. ST subsequently admitted that Appel-
lant appeared to be asleep while he was watching TV and
that his pants might have unbuttoned accidentally when he
sat down, and she testified that the blanket incident might
have been a dream. ST’s father admitted that after learning
of the pajamas incident from his daughter, he neither con-
fronted Appellant or contacted law enforcement or military
authorities, nor asked Appellant to vacate the apartment.
C. Trial Counsel’s Arguments
1. Preserved Errors
Appellant argues that the trial counsel, Lt. Col. Matthew
McDonald, made improper arguments that prejudiced his
right to a fair trial. At trial, defense counsel raised several
objections to remarks related to Appellant’s criminal disposi-
1 Specification 3 of Charge IV did not directly involve ST, but
it alleged that Appellant made threats of violence in response to
his investigation that were overheard by ST’s father, Sgt Robert T.
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United States v. Sewell, No. 16-0360/AR
Opinion of the Court
tion or propensity to commit the charged crimes. The MJ
found error in only the following two statements: 2
What kind of man has 118 photos of this on his
phone? You can use your own common sense,
ways of the world. Is that normal? Maybe one
or two men have, maybe three or four. 118?
That’s only one man and he’s Sergeant Sewell.
Is he the type of guy that has 118 pictures of
this on his phone? Is that the type of guy that
would do this to people? You all know the an-
swer.
What type of guy keeps sending pictures to
somebody after they tell him no, to stop? Won’t
take no for an answer. If he won’t take no for
an answer when they tell him to stop sending
pictures, he’s not going to take no for an an-
swer of PFC [MN] when she’s telling him to get
off, when she’s trying to push him off. He won’t
take no for an answer from any female.
After finding error, the MJ promptly gave the following
instructions to the panel:
Members, two portions of LTC McDonald’s ar-
gument to you were improper and I’m going to
ask you to disregard them. One of them was at
a point in his closing argument he stated what
kind of man---words to the effect of what kind
of man has 118 images of his penis on his cell
phone, to the extent that that was an invita-
tion for you basically to use that evidence that
was introduced that he had 118 images of his
penis on his cell phone as somehow character
that’s showing that he’s some kind of deviant.
I’m going to ask you to disregard it for that
purpose. Likewise, LTC McDonald made some
argument that the fact that the accused sent
2 Defense counsel’s unsuccessful objections included a chal-
lenge to trial counsel’s assertion that the panel could use sexual
assault evidence to rebut the defense of accident on Appellant’s
indecent exposure charges, trial counsel’s statement that Appel-
lant acted with the intent to gratify his sexual desires, and trial
counsel’s argument that Appellant’s exposures reflected his test-
ing the receptiveness of the alleged victims. The military judge did
not abuse his discretion with respect to any of these rulings.
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United States v. Sewell, No. 16-0360/AR
Opinion of the Court
photographs of his penis, or is at least alleged
to have, to women after they’d said I don’t
want to see that any more [sic] as standing for
a general proposition that he doesn’t take no
for an answer, and therefore, that could be
used for purposes of other offenses including
the alleged assault on PFC [MN]. Once again
that’s an improper invitation for you to consid-
er that act for a propensity purpose that I’ve
not instructed you on.
2. Other Errors
Appellant failed to object to other statements that he
challenges on appeal, including additional propensity argu-
ments, improper vouching, references to facts not in evi-
dence, and statements that purportedly inflamed the pas-
sions of the panel. For example, trial counsel referred to
Appellant as an “old dirty man in the trench coat” and a
“sexual predator.” He also flatly referred to Appellant as
guilty and declared that “we all know [Appellant] lied on the
video.” Trial counsel also vouched for the testimony of PFC
MN—among others—by downplaying her initial reluctance
to come forward and by telling the panel that “we all know
she didn’t make this up.” In addition, trial counsel used per-
sonal pronouns like “I” and “we” pervasively throughout his
argument.
II. ACCA DECISION
The Army Court summarily affirmed Appellant’s convic-
tions, addressing only the one month of confinement relief
awarded in light of Appellant’s pretrial confinement. Sewell,
2016 CCA LEXIS 58, at *2–4, 2016 WL 381340 at *1.
III. DISCUSSION
Improper argument is one facet of prosecutorial miscon-
duct. See United States v. Young, 470 U.S. 1, 7–11 (1985).
We review questions of improper argument and prosecutori-
al misconduct de novo. See United States v. Frey, 73 M.J.
245, 248 (C.A.A.F. 2014). “Prosecutorial misconduct occurs
when trial counsel ‘overstep[s] the bounds of that propriety
and fairness which should characterize the conduct of such
an officer in the prosecution of a criminal offense.’” United
States v. Hornback, 73 M.J. 155, 159–60 (C.A.A.F. 2014) (in-
ternal quotation marks omitted) (alteration in original)
(quoting Fletcher, 62 M.J. at 178 (quoting Berger v. United
States, 295 U.S. 78, 84 (1935))). Such conduct “can be gener-
6
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Opinion of the Court
ally defined as action or inaction by a prosecutor in violation
of some legal norm or standard, e.g., a constitutional provi-
sion, a statue, a Manual rule, or an applicable professional
ethics canon.” Id. at 160 (citations omitted). In his argu-
ments, trial counsel “may strike hard blows, [but] he is not
at liberty to strike foul ones.” Berger, 295 U.S. at 88. In this
regard, it is appropriate for trial counsel “to argue the evi-
dence of record, as well as all reasonable inferences fairly
derived from such evidence.” United States v. Baer, 53 M.J.
235, 237 (C.A.A.F. 2000). He may not, however, inject his
personal opinion into the panel’s deliberations, inflame the
members’ passions or prejudices, or ask them to convict the
accused on the basis of criminal predisposition. See United
States v. Burton, 67 M.J. 150, 153 (C.A.A.F. 2009); Fletcher,
62 M.J. at 180; Baer, 53 M.J. at 238.
When preserved by objection, this Court reviews allega-
tions of improper argument de novo to determine whether
the military judge’s ruling constitutes an abuse of discretion.
Hornback, 73 M.J. at 159; Article 59(a), UCMJ. On the other
hand, if there is no objection at trial, the appellant has the
burden of establishing the prejudice. See United States v.
Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007). In either case, re-
versal is warranted only “when the trial counsel’s comments,
taken as a whole, were so damaging that we cannot be con-
fident that the members convicted the appellant on the basis
of the evidence alone.” Hornback, 73 M.J. at 160. (internal
quotation marks omitted) (citation omitted).
In Fletcher, this Court set out three factors to guide our
determination of the prejudicial effect of improper argu-
ment: “(1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the ev-
idence supporting the conviction[s].” 62 M.J. at 184. We have
observed, albeit in the context of sentencing, that the third
factor may so clearly favor the government that the appel-
lant cannot demonstrate prejudice. United States v. Halpin,
71 M.J. 477, 480 (C.A.A.F. 2013).
Appellant argues, citing Fletcher, that trial counsel’s im-
proper arguments rendered his trial unfair. He points to the
pervasive scope of allegedly improper arguments and claims
that the military judge’s curative instructions were too nar-
row and infrequent to offset the prejudicial effect of the chal-
lenged statements. Moreover, he maintains that the Gov-
ernment’s heavy reliance on testimonial evidence increased
the likelihood that improper arguments unfairly swayed the
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Opinion of the Court
panel in an otherwise close case. We disagree. Even assum-
ing that trial counsel’s misconduct was severe and the mili-
tary judge’s instructions were insufficient, we find the third
Fletcher factor dispositive.
We considered similar circumstances in Hornback. 73
M.J. at 161. In that case, despite clear errors by the trial
counsel, the testimony of two witnesses who observed the
appellant smoking an illicit substance was so strong that we
were “confident that the members convicted [the appellant]
on the basis of the evidence alone.” Id. at 161. This was true
even in the absence of a drug test and in the face of perva-
sive improper arguments about the appellant’s character as
a drug user. Id. We also noted that, despite trial counsel’s
improper attempts to establish propensity, the panel’s ac-
quittals of similar charges “indicate[d] that it took the mili-
tary judge’s instructions to disregard impermissible charac-
ter evidence seriously.” Id.
In Appellant’s court-martial, the Government produced
substantial evidence of his guilt for the offenses of which he
was convicted. With respect to MN and EB, the Government
proffered both each victim’s testimony and Appellant’s ad-
missions to CID placing him at each scene in admittedly
compromising circumstances (as in admitted he was naked
and rubbing lotion on his groin in the offense involving MN,
and admitted he was naked having “undressed in his sleep”
in the offense involving EB). The Article 134 conviction in-
volving MN also drew support from the testimony of JF who
observed MN acting hysterical and upset immediately after
the alleged incident. With respect to Appellant’s four inde-
cent exposure convictions the Government introduced both
photographic evidence of photos of Appellant’s penis re-
trieved from his phone and detailed testimony from four vic-
tims about the images Appellant sent or showed them.
Moreover, the panel was properly instructed that it could
consider the fact that 118 images were retrieved from Appel-
lant’s phone in assessing the likelihood that his transmis-
sions were by accident or mistake.
In contrast, Appellant was acquitted of all specifications
for which there was no corroborating evidence in the form of
either inculpatory admissions by Appellant or photographs
retrieved from his phone. The panel’s mixed findings further
reassure us that the members weighed the evidence at trial
and independently assessed Appellant’s guilt without regard
to trial counsel’s arguments. We presume, absent contrary
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United States v. Sewell, No. 16-0360/AR
Opinion of the Court
indications, that the panel followed the military judge’s in-
structions that trial counsel’s arguments were not evidence
and that it must not engage in spillover when determining
Appellant’s guilt.
In light of the evidence and the outcome of Appellant’s
trial, we are “confident that the members convicted the ap-
pellant on the basis of the evidence alone.” Hornback, 73
M.J. at 160 (internal quotation marks omitted) (citation
omitted)
IV. JUDGMENT
The decision of the United States Army Court of Crimi-
nal Appeals is affirmed.
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United States v. Sewell, No. 16-0360/AR
Judge OHLSON, concurring in part and dissenting in
part.
When a trial counsel’s improper arguments, taken as a
whole, are so damaging that this Court cannot be confident
that the members convicted the accused on the basis of the
evidence alone, the accused’s conviction must be reversed.
United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).
In making this determination, this Court considers three
factors: “(1) the severity of the misconduct, (2) the measures
adopted to cure the misconduct, and (3) the weight of the ev-
idence supporting the conviction.” Id.Upon analyzing each of these three Fletcher factors, I
conclude that in the instant case the improper arguments by
the trial counsel were egregious, the putative curative in-
structions by the military judge were inadequate, and the
evidence presented by the Government to support some of
the charges on which Appellant was convicted was less than
compelling. Therefore, I cannot be confident that the mem-
bers convicted Appellant of all offenses on the basis of the
evidence alone. Accordingly, I respectfully dissent from the
majority’s conclusion affirming the sentence and all of the
findings of guilty.
1. The Severity of the Misconduct
As demonstrated below, during Appellant’s court-martial
the trial counsel made a variety of improper arguments that
permeated his argument on findings.
(a) Trial counsel used the term “we” a multitude of times,
often in the context of allying himself with the panel.1 For
example:
(i) “We all know [the victim] didn’t make this up.”
(ii) “[W]e all know [Appellant] lied on the video.”
(iii) “[W]e know [Appellant’s conduct] wasn’t acci-
dental.”
1 In his brief, Appellant notes that during argument on find-
ings trial counsel used the term “I” or “we” more than seventy-five
times.
United States v. Sewell, No. 16-0360/AR
Judge OHLSON, dissenting
(iv) “[W]e know this was not the actions of an inno-
cent man.”
This Court has held that “[i]t is improper for a trial
counsel to interject [himself or] herself into the proceedings
by expressing a ‘personal belief or opinion as to the truth or
falsity of any testimony or evidence.’” Fletcher, 62 M.J. at
179 (quoting United States v. Horn, 9 M.J. 429, 430 (C.M.A.
1980)). This “can include the use of personal pronouns in
connection with assertions that a witness was correct or to
be believed.” Id. at 180. As the four examples listed above
illustrate, trial counsel improperly used personal pronouns
throughout findings argument.
(b) As the military judge correctly ruled, trial counsel
committed error by making the following improper argu-
ments:
(i) Referring to obscene photos that were the basis for
a specification in this case, trial counsel argued to the panel:
“What kind of man has 118 photos of [his penis] on his
phone?... Is that the type of guy that would [sexually assault
women]? You all know the answer.”
(ii) “If he won’t take no for an answer when they tell
him to stop sending pictures, he’s not going to take no for an
answer … when [the victim is] telling him to get off, when
she’s trying to push him off. He won’t take no for an answer
from any female.”
As this Court observed in United States v. Burton, 67
M.J. 150, 152 (C.A.A.F. 2009), it is improper argument for a
trial counsel to encourage a panel to make inferences not
fairly derived from the evidence. In my view, trial counsel’s
propensity arguments were not fair inferences derived from
the trial evidence.
(c) Trial counsel engaged in ad hominem attacks against
Appellant. For example, trial counsel likened Appellant to
an “old dirty man in a trench coat,” called him a “sexual
predator,” and implied that he had psychological problems.
This Court has noted that “the prosecutor’s obligation to
desist from the use of pejorative language…is every bit as
solemn as his [or her] obligation to attempt to bring the
guilty to account.” Fletcher, 62 M.J. at 182 (internal quota-
2
United States v. Sewell, No. 16-0360/AR
Judge OHLSON, dissenting
tion marks omitted) (citation omitted). Here, trial counsel
used a series of pejorative terms to characterize Appellant.
(d) Trial counsel made inflammatory statements that
were predicated on facts not in evidence. For example:
(i) “Six of these female [victims] were E-4 and below,
and we all know how it works. Young females in the military
are preyed upon.”
(ii) After the military judge told trial counsel in an
Article 39(a), Uniform Code of Military Justice, 10 U.S.C.
§ 839 (2012), session that he couldn’t introduce the results of
Appellant’s sanity board without first laying the proper
foundation, trial counsel failed to lay such a foundation but
still argued to the panel as follows: “Something’s wrong with
him. We can’t say what it is, but he’s got issues and his is-
sues are dangerous and they’re criminal.” Thus, trial counsel
seems to have been arguing to the panel that Appellant had
some sort of criminal psychological disorder, but the trial
counsel was not at liberty to disclose what it was.
(iii) Perhaps most troubling, trial counsel made an in-
flammatory comment regarding defense counsel. He said:
“[T]he defense, they have a good poker face, but we all know
there’s not reasonable doubt.” The panel members could rea-
sonably infer from trial counsel’s statement that defense
counsel, despite their impassive expressions, knew that
their client was guilty. Such an argument is extremely prej-
udicial to an accused and is patently unacceptable in a
court-martial.
This Court has long recognized that “a court-martial
must reach a decision based only on the facts in evidence.”
Fletcher, 62 M.J. at 183; see also American Bar Association,
ABA Standards for Criminal Justice Prosecution Function
and Defense Function, Prosecution Function Standard 3.5.9
(3d ed. 1993) (“The prosecutor should not intentionally refer
to or argue on the basis of facts outside the record ….”).
Moreover, “counsel are prohibited from making arguments
3
United States v. Sewell, No. 16-0360/AR
Judge OHLSON, dissenting
calculated to inflame the passions or prejudices of the jury.”
Fletcher, 62 M.J. at 183. 2
Although there is no basis to believe that trial counsel
had any malicious intent in making these improper argu-
ments, I conclude that, taken as a whole, they constituted
serious error. 3
2. The Measures Adopted to Cure the Misconduct
The military judge instructed the panel members to dis-
regard only two of the improper arguments made by trial
counsel: (a) the “What kind of man has 118 photos” argu-
ment (cited at 1(b)(i), supra) and (b) the “If he won’t take no
for an answer” argument (cited at 1(b)(ii), supra). The mili-
tary judge did not instruct the panel regarding the many
2 At trial, defense counsel did not object to all of trial counsel’s
improper arguments. In those instances, a plain error analysis
applies. Appellant bears the burden of establishing the following
three prongs: (1) there is error; (2) the error is plain or obvious;
and (3) the error materially prejudices a substantial right. United
States v. Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006). In my view,
all of the improper arguments cited above rise to the level of plain
error and thus there is no need to distinguish between those in-
stances where defense counsel made an objection and those in-
stances where defense counsel did not do so. Moreover, I note that
at oral argument Government counsel admirably and appropriate-
ly conceded plain error in regard to those statements in which tri-
al counsel vouched for the Government’s witnesses.
3 It is notable that the trial counsel in this case was quite sen-
ior—he was a lieutenant colonel (0-5)—and was designated as a
special victims prosecutor. (Additionally, the record reflects that
he previously served as a military judge.) Presumably, a person of
that rank and in that position would have received significant
training and courtroom experience before prosecuting a case such
as this one. And yet, as demonstrated by the above listing of his
improper arguments, trial counsel’s performance was quite trou-
bling. It is to be hoped that junior officers in the Judge Advocate
General’s Corps who may have viewed trial counsel as a role mod-
el will not emulate his trial advocacy techniques in future cases.
Indeed, this Court’s customary admonition bears repeating: “Pros-
ecutorial misconduct occurs when trial counsel oversteps the
bounds of that propriety and fairness which should characterize
the conduct of such an officer in the prosecution of a criminal of-
fense.” United States v. Hornback, 73 M.J. 155, 159–60 (C.A.A.F.
2014) (citation omitted) (internal quotation marks omitted).
4
United States v. Sewell, No. 16-0360/AR
Judge OHLSON, dissenting
other improper arguments involving trial counsel’s (a) per-
sonal opinions as to the truth of the evidence, (b) inflamma-
tory comments, and (c) citation to facts not in evidence.
Thus, in my view, the military judge’s instructions did not
provide the panel members with “a sufficient sense of judi-
cial disapproval of both content and circumstance needed to
dispel the harm in the core of [trial counsel’s improper ar-
guments].” United States v. Simtob, 901 F.2d 799, 806 (9th
Cir. 1990).
3. The Weight of the Evidence Supporting the Convic-
tion
Trial counsel’s improper arguments did not fatally taint
Appellant’s convictions pertaining to the photograph-
associated specifications. However, the other specifications
where the Government obtained a conviction are different.
For example, the charges related to one complainant were
not supported by any physical evidence or injury, at some
points the complainant’s testimony conflicted with the tes-
timony of another witness, and defense witnesses testified
that the complainant had a reputation for being untruthful.
Further, Appellant’s demeanor during his interrogation—
which has been cited by the Government as bolstering the
prosecution’s case—may easily be explained by Appellant’s
initial desire to avoid admitting that he had permitted a fe-
male to come into his barracks room. Therefore, I conclude
that the weight of the evidence supporting all of Appellant’s
conviction was not overly compelling. 4
CONCLUSION
Weighing the repeated and clearly erroneous improper
arguments by trial counsel, the limited scope of the instruc-
tions provided by the military judge, and the less than com-
pelling nature of the Government’s evidence regarding some
of the charges for which Appellant was convicted, I cannot
be confident that the members convicted Appellant on the
basis of the evidence alone. Therefore, I concur with respect
to the indecent exposure findings of guilty, and I respectfully
4 I view this case as being very different from our recent deci-
sion in United States v. Pabelona, __ M.J. __ (C.A.A.F. 2017). In
that case, the evidence of the appellant’s guilt was overwhelming.
5
United States v. Sewell, No. 16-0360/AR
Judge OHLSON, dissenting
dissent with respect to the remaining findings of guilty and
the sentence. Accordingly, I would authorize a rehearing on
the appropriate charges and the sentence.
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