United States v. Gurfein

This opinion is subject to administrative correction before final disposition.
United States Navy-Marine Corps
Court of Criminal Appeals
_________________________
UNITED STATES
Appellee
v.
Jonathan D. GURFEIN
Major (O-4), U.S. Marine Corps
Appellant
No. 201700345
_________________________
Appeal from the United States Navy-Marine Corps Trial Judiciary.
Decided 10 May 2019.
Military Judge:
Commander Arthur Gaston, JAGC, USN.
Sentence adjudged 2 July 2017 by a general court-martial convened at
Marine Corps Base Quantico, Virginia; Naval Support Activity Na-
ples, Italy; and Kelley Barracks, Stuttgart, Germany, consisting of of-
ficer members. Sentence approved by convening authority: forfeiture
of all pay and allowances, confinement for 2 years, and a dismissal.
For Appellant:
Mr. John N. Maher, Esq.;
Lieutenant Commander William L. Geraty, JAGC, USN.
For Appellee:
Captain Brian L. Farrell, USMC;
Major Kelli A. O’Neil, USMC.
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under NMCCA
Rule of Appellate Procedure 30.2.
_________________________
Before WOODARD, FULTON, AND CRISFIELD,
Appellate Military Judges
United States v. Gurfein, No. 201700345
Judge CRISFIELD delivered the opinion of the Court, in which Chief
Judge WOODARD and Senior Judge FULTON joined.
CRISFIELD, Judge:
A general court-martial consisting of officer members convicted the appel-
lant, contrary to his pleas, of one specification of committing a lewd act
against a child, one specification of indecent exposure to a child, and one
specification of false official statement in violation of Articles 120b, 120c, and
107, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920b, 920c, and
907 (2016). 1
The appellant raises eight assignments of error (AOEs): (1) the evidence
is factually and legally insufficient to sustain the findings and sentence;
(2) the trial counsel violated his discovery obligations by failing to provide
material evidence to the defense; (3) the military judge abused his discretion
by denying the defense request for the production of cellular telephone tower
data related to the appellant’s cell phone; (4) the trial counsel made improper
comments during trial and in his closing argument by referring to the “dark
web” and “child pornography”; (5) the military judge abused his discretion by
failing to sever the sexual abuse specifications related to two separate inci-
dents; (6) the cumulative effect of errors (1) through (5) resulted in a trial
that was not correct in law and fact; (7) it was plain error for the military
judge to fail to order a mistrial sua sponte after the trial counsel disobeyed
his order to avoid certain argument in his closing statement; and (8) unlawful
command influence adversely affected the results of the trial. 2
After careful consideration of the record of trial and the pleadings of the
parties, we are convinced that the findings and sentence are correct in law
and fact, find no error materially prejudicial to the substantial rights of the
appellant, and affirm the approved findings and sentence.
1 Appellant was acquitted of one specification of committing a lewd act and one
specification of indecent exposure, both alleged to have been committed against a dif-
ferent child victim in 2014.
2 AOEs (7) and (8) were raised, pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982), in an unsigned appendix following appellate defense counsel’s
signatures and appear to have been drafted personally by the appellant. See Appel-
lant’s Brief of 20 Jun 2018, Appendix I at 1 (“Appellant, Major Jonathan D. Gurfein,
personally requests the court to consider the following assignments of error.”) Having
considered them, we find them to be without merit. See United States v. Clifton, 35
M.J. 79 (C.M.A. 1992).
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I. BACKGROUND
The appellant was assigned to the headquarters of Marine Corps Forces
Europe and Africa, in Stuttgart, Germany. He was charged with committing
lewd acts upon children and indecent exposure to children for allegedly ex-
posing his penis to two local national girls who were under the age of 12 in
two separate incidents, one in 2014 and the other in 2016. The incidents took
place in an area known as Leinfelden-Echterdingen, Germany, which is near
Stuttgart. He was also charged with making a false official statement about
the incidents when interrogated by a special agent of the Army Criminal In-
vestigation Division (CID).
In the first incident, a 10-year-old German girl alleged that as she walked
from her train stop to school on the morning of 5 December 2014, a black,
two-door sports car with a license plate that included the letters “SIR” fol-
lowed by 3 or 4 digits repeatedly drove past her, stopped, waited for her to
pass, and then drove past her again. After doing this multiple times, the
driver of the car said something to the young girl in a language other than
German. When the girl looked over, the driver was sitting in the car “shak-
ing” his exposed penis with his hand.
The girl immediately reported what she saw to a teacher at her school.
The teacher informed the school principal who then notified the German po-
lice. The German police searched for the vehicle description and partial li-
cense plate in their databases, but did not search the database for vehicles
registered to U.S. service members.
The members acquitted the appellant of the offenses related to this inci-
dent.
In the second incident, L.S., an 11-year-old German girl, alleged that as
she was pushing her bicycle home from a horseback riding lesson on the af-
ternoon of 20 September 2016, a black sports car repeatedly pulled in front of
her, waited for her to pass, then pulled in front of her again. After doing this
multiple times, the driver of the car said something to L.S. in a language oth-
er than German. When she looked over, the driver had his penis in his hand
and was moving it around.
L.S. ran with her bike the rest of the short distance up a hill to her house
and immediately told her parents, Mr. and Mrs. S, what had happened. Mr. S
and L.S. got into the family’s car and drove around to search for the vehicle
while Mrs. S called the German police. In the car, L.S. told her father that
the vehicle they were looking for was black and similar to the type used by a
driving school they knew, which Mr. S knew to be a BMW Z3. Soon after leav-
ing their house, L.S. and her father spotted a black BMW Z4, a vehicle visual-
ly similar to a Z3. L.S. said it was the car. Mr. S pulled his car up alongside
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United States v. Gurfein, No. 201700345
the suspect vehicle while the vehicle was stopped at a traffic light. L.S. iden-
tified the driver of the vehicle as the man who had exposed himself to her.
Mr. S immediately called the German police and described what was happen-
ing. He dropped back behind the vehicle and took two pictures of it with his
cell phone. The license plate was legible in the photos and read “S-IR2684.”
The first photo was time-stamped “1901” by Mr. S’s cell phone.
Mr. S and L.S. followed the vehicle, which appellant subsequently admit-
ted he was driving, through two traffic circles before the appellant abruptly
made a U-turn and went back in the direction they had come from. Mr. S was
able to follow. The appellant’s vehicle got onto a highway on-ramp and quick-
ly accelerated away from Mr. S’s vehicle. After being on the highway for a
short time, Mr. S noticed the appellant’s vehicle up ahead veer from the left
lane across the right lane and onto an exit ramp. Mr. S was unable to follow
the appellant across the lanes of traffic and lost sight of the appellant’s vehi-
cle soon after the appellant took the exit ramp.
In the course of their investigation into the incident involving L.S., the
German police extended their vehicle license plate search to a database that
includes vehicle information for U.S. service members stationed in Germany.
The license plate and vehicle type photographed by Mr. S matched a black
BMW Z4 belonging to the appellant. During the time period of both incidents,
the appellant was stationed in Stuttgart, lived off base, and commuted to
work. At a German police photo lineup, Mr. S identified the appellant’s photo
as the man he saw driving the BMW Z4 on 20 September 2016.
When questioned on 3 October 2016 by special agents of the CID regard-
ing the two incidents, the appellant waived his rights and admitted to being
in the proximity of L.S.’s house on 20 September 2016 as he was returning
home from work. He remembered stopping at the side of the road 5 to 10
minutes after leaving work to make cell phone calls to his wife and uncle on
his government-issued Blackberry cell phone. He also recalled being followed
by a vehicle after making the calls, but denied ever exposing himself to any
young girls at any time or having any sexual ideations about children. The
appellant’s denial that he ever exposed his penis to any young girls was the
factual basis for the false official statement specification.
CID determined that the appellant had used his government-issued iden-
tification card to “swipe-out” of his office building in Stuttgart just before
1834 on 20 September. He made a cell phone call to his wife at 1842, which
lasted for less than four minutes, and a cell phone call to his uncle at 1847
that went unanswered.
Members acquitted the appellant of both alleged offenses related to the
2014 allegation. They convicted him of the Article 120b specification (commit-
ting a lewd act upon a child under 12) related to the 2016 incident, but did so
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United States v. Gurfein, No. 201700345
by exceptions. 3 They also convicted him of the Article 120c specification (in-
decent exposure) related to the 2016 incident. Following the members’ pro-
nouncement of their findings, the military judge conditionally dismissed the
Article 120c specification, finding it to be an unreasonable multiplication of
charges. The members also convicted the appellant of the Article 107 false
official statement specification.
Additional facts necessary to resolution of the assignments of error are
discussed below.
II. DISCUSSION
A. Legal and Factual Sufficiency
We review questions of legal and factual sufficiency de novo. Art 66(c),
UCMJ; United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002).
“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 v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)).
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, [this court is] convinced of appellant’s guilt beyond a reasona-
ble doubt.” Rosario, 76 M.J. at 117 (citation, internal quotation marks, and
emphasis omitted). In conducting this unique appellate function, 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.” Washington, 57 M.J. at 399. Proof beyond a rea-
sonable doubt does not mean, however, that the evidence must be free from
conflict. United States v. Goode, 54 M.J. 836, 841 (N-M. Ct. Crim. App. 2001).
In order to sustain the appellant’s Article 120b conviction, the govern-
ment must have proven beyond a reasonable doubt that:
1. The appellant committed a lewd act against L.S. by inten-
tionally exposing his genitalia to her;
2. L.S. was under the age of twelve; and
3 Excepting the words “abuse, humiliate and.”
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United States v. Gurfein, No. 201700345
3. The appellant had the intent to degrade L.S. and to arouse
and gratify his sexual desire.
10 U.S.C. § 920b(c) (2012); MANUAL FOR COURTS-MARTIAL (MCM), UNITED
STATES (2016 ed.), Part IV, ¶45b.b(4)(c); Charge Sheet.
The appellant claims on appeal, as he did at trial, that he did not expose
himself to the victim, L.S. He challenges L.S.’s and her father’s identification
of him as L.S.’s offender. He also claims that it was physically impossible for
him to be at the scene of the 20 September 2016 exposure at the time L.S.
claims the exposure occurred given the time that he departed from his office
and the amount of time he would have needed to travel to the location of the
exposure.
After carefully reviewing the record of trial and considering the evidence
in the light most favorable to the prosecution, we are convinced that a ration-
al fact-finder could have found all the essential elements beyond a reasonable
doubt. Additionally, after weighing the evidence and having made allowances
for not having personally observed the witnesses, we are convinced beyond a
reasonable doubt of the appellant’s guilt.
L.S. had a good opportunity to observe the man who exposed himself to
her and the vehicle he was driving. She immediately ran home—less than
100 meters away—after the incident. Within seconds of getting home she de-
scribed the perpetrator and his vehicle to her father. Within seconds of talk-
ing to her father, the two of them got into their family vehicle to search for
the perpetrator. Approximately two minutes later and in close proximity to
the place where L.S. said a man exposed himself to her, L.S. and her father
located a vehicle that matched L.S.’s description and photographed the vehi-
cle. The vehicle in the photograph was the appellant’s vehicle and the appel-
lant admitted to CID and at trial that he was driving the vehicle the evening
of 20 September 2016. The first photo of the appellant’s vehicle was time-
stamped 1901, placing the appellant close to the scene of the exposure shortly
after it occurred. When Mr. S pulled up next to the suspect vehicle, L.S. iden-
tified the appellant as the man who had exposed himself to her just minutes
before.
The appellant’s argument that it was physically impossible for him to
have been at the location where the exposure occurred at the time alleged is
substantially undermined by the appellant’s own evidence. The appellant
used his identification card to “swipe out” of his office shortly before 1834 on
20 September 2016. When interrogated by CID, the appellant stated that he
stopped to make a cell phone call about 5 to 10 minutes after leaving his
base. He did not recall the street he stopped on to make the call, but he re-
membered that there were some stairs next to the road where he stopped.
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United States v. Gurfein, No. 201700345
Mrs. S., L.S.’s mother, had been with L.S. at her horseback riding lesson
that afternoon. She and L.S. left the stables separately to get home: she in
her car and L.S. on her bicycle. Mrs. S. testified that when she was driving
home from the stables she saw a vehicle matching the appellant’s vehicle
stopped in the road down the street from her home. There were stairs near
the road where Mrs. S saw the car stopped.
Examination of the appellant’s Blackberry cell phone showed that he
made a call to his wife at 1842, which lasted for less than four minutes, and a
call to his uncle at 1847 which went unanswered. This timeframe was shortly
before the time the crime occurred.
Furthermore, the appellant introduced substantial evidence to prove that
he was a fast driver and regularly drove much faster than other drivers. This
fact substantially undercuts the multiple estimates that the defense intro-
duced regarding how long it would typically take a driver to travel from the
appellant’s office to the scene of the incident.
Most significantly, at 1901 L.S.’s father photographed the appellant in his
car close to the site of the exposure, which was within minutes of the expo-
sure. On that evidence alone a reasonable factfinder could have determined
that appellant had sufficient time to drive from his office to the scene of the
indecent exposure. We are convinced beyond a reasonable doubt of the same.
We are also convinced beyond a reasonable doubt that the evidence satisfies
the other elements of the offense.
B. Trial Counsel’s Pretrial Disclosure Obligations and the Military
Judge’s Denial of the Defense Request for Production of German Cell
Phone Tower Data 4
The appellant alleges that the government possessed and failed to
produce certain items of evidence that were material to the preparation of the
defense. Specifically, the appellant claims the government possessed
(1) German cell phone tower locating data; (2) “location data” contained with-
in the appellant’s government-issued Blackberry cell phone; and (3) global
positioning system (GPS) data contained within the appellant’s vehicle. With
regard to the German cell phone tower locating data, the appellant addition-
ally alleges in a separate AOE that the military judge abused his discretion
in denying the appellant’s motion to compel production of that data. We will
address each category of evidence separately.
4 This subsection combines our discussion of AOEs 2 and 3.
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1. German cell phone tower data
The appellant challenges both the trial counsel’s failure to discover the
requested German cell phone tower locating data and the military judge’s de-
nial of the appellant’s motion to compel production of such data.
The trial counsel argued at trial that the government was not in posses-
sion of any cell tower data and, since the data was proprietary to a German
telecommunications company, it was not amenable to subpoena from a U.S.
court-martial. The military judge denied the appellant’s motion to compel
production of the cell tower data on the bases that the appellant had not
shown its relevance and that the data was not subject to compulsory process
issued by the court-martial. The military judge also invited the appellant to
re-raise the motion at a later date if he could meet the burden for relevance. 5
The motion was not re-raised by the appellant.
The defense is entitled to an equal opportunity to obtain evidence. Art. 46,
UCMJ. However, it is not entitled to production of evidence that is “de-
stroyed, lost, or otherwise not subject to compulsory process.” RULE FOR
COURTS-MARTIAL (R.C.M.) 703(f)(2), MCM. The data sought by the appellant
was proprietary information possessed by a German telecommunications
company. Contrary to the appellant’s assertion that the U.S. government was
in “direct possession” of the German cell phone tower data, 6 we find, as did
the military judge, that the U.S. government was not in possession of the da-
ta. Also contrary to the appellant’s claim, and consistent with the military
judge’s finding, we determine that the data was not subject to the compulsory
process of a U.S. court-martial. The appellant’s reliance on the North Atlantic
Treaty Organization Status of Forces Agreement, which Germany and the
United States are party to, is misplaced. The treaty provides for mutual law
enforcement assistance, but not for mandatory evidence sharing between par-
ties. 7
The trial counsel stated that he would submit a request for the data
through the German authorities and the military judge stated that that was
5 Record at 235-6.
6 Appellant’s Brief at 33.
7 “The authorities of the receiving and sending States shall assist each other in
the carrying out of all necessary investigations into offences, and in the collection and
production of evidence, including the seizure and, in proper cases, the handing over of
objects connected with an offence.” Agreement Between the Parties to the North At-
lantic Treaty Regarding the Status of Their Forces, art. VII(6)(a), June 19, 1951, 4
U.S.T. 1792, T.I.A.S. No. 2846 (emphasis added).
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United States v. Gurfein, No. 201700345
all he would ask the trial counsel to do. 8 It appears that the request was ei-
ther denied or went unanswered since the record of trial is silent on any fur-
ther developments.
Embedded in the appellant’s argument is an unassigned allegation of er-
ror that by failing to turn over the cell tower records the trial counsel violated
Brady v. Maryland, 373 U.S. 83 (1963) because the evidence would tend to
negate the appellant’s guilt. 9 Brady is implemented in the military justice
system through R.C.M. 701. United States v. Williams, 50 M.J. 436, 400
(C.A.A.F. 1999). R.C.M. 701(a)(6) requires the trial counsel to disclose to the
defense the existence of evidence known to the trial counsel which reasonably
tends to, inter alia, negate the guilt of the accused.
In this case the cell tower data was not possessed by nor known to the tri-
al counsel. Indeed, the appellant failed to establish at trial that the data even
existed. We find that it is extremely unlikely that the cell tower data, assum-
ing it existed, would have negated the appellant’s guilt. The appellant argues
without explanation that the “cell tower data” could have been used to trian-
gulate the appellant’s location at the time he made cell phone calls from his
car on the date in question. He argues that this information could have prov-
en that he was not close enough at the time he made the calls to have been at
the scene of the crime when it was committed. The fault with this theory is
that we know precisely where the appellant was located within a few minutes
of the exposure because he was photographed by the victim’s father at 1901.
The appellant admits that the photo is of his vehicle at a time he was driving
it. No matter where the cell tower data might have shown the appellant was
at the moment he made a cell phone call, we know that he was close enough
to the scene of the crime within minutes of the crime to have been there when
it was committed. For these reasons, we find no Brady violation and no prej-
udice to appellant in the trial counsel’s inability to procure cell phone tower
data from the German telecommunications company.
Turning to the military judge’s ruling on the production motion, we re-
view the denial of this motion for abuse of discretion. United States v. Stella-
to, 74 M.J. 473, 480 (C.A.A.F. 2015). An abuse of discretion occurs when the
military judge’s “findings of fact are clearly erroneous, the court’s decision is
influenced by an erroneous 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
8 Record at 221.
9 Appellant’s Brief at 31.
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United States v. Gurfein, No. 201700345
applicable facts and the law.” United States v. Miller, 66 M.J. 306, 307
(C.A.A.F. 2008).
We find the military judge did not abuse his discretion in denying the mo-
tion. The military judge’s findings of fact are supported by the record and he
applied the appropriate rule of law. The military judge found, contrary to the
appellant’s claims, that the data sought was not possessed by the U.S. gov-
ernment and that he had no authority to compel its production. He also found
that the appellant had not carried his burden for establishing that the re-
quested evidence was relevant and necessary under MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 703, primarily because the appellant failed to show
that he used his cell phone around the time of the exposure. 10
The military judge’s only alternative remedy, abatement, would have
been an unreasonably drastic choice given that he found that the appellant
had not met his burden of proving relevance. United States v. Khoi Pham, No.
201600313, 2018 CCA LEXIS 117, *16 (N-M. Ct. Crim. App. 8 A.K. Marsh. 2018).
The military judge’s ruling was a reasonable choice based on the facts and
applicable law.
Finally, the military judge advised the appellant to re-raise the motion if
he could build a case for its relevance. The trial defense counsel acknowl-
edged their burden:
I would say the defense has met its burden if we can prove to
the satisfaction of the Court that we can establish a phone call
was made by Major Gurfein at this point in time. And I would
say when we’re able to do that, that should make the phone call
logs relevant, which in turn makes the cell tower data relevant
because we need the cell tower data to show where he was. 11
In spite of the fact that the government later turned over the cell phone
call log to the defense and that log revealed that the appellant had made two
cell phone calls shortly before the time of the alleged indecent exposure, the
appellant did not re-raise the motion.
2. Blackberry cell phone location data
The appellant requested his government-issued Blackberry cell phone call
records in discovery. Location data from the phone was not part of his re-
10 Although the call log from the appellant’s cell phone was later introduced by
the government, it was apparently not available when this motion was litigated.
11 Record at 236.
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United States v. Gurfein, No. 201700345
quest. When initially told that the government could not produce the Black-
berry call logs, the appellant moved to compel their production. Again, loca-
tion data was not part of the motion to compel. The government presented
evidence during the Article 39(a) motion session that it had tried but failed to
extract call logs and location data from the Blackberry. The failure was at-
tributed to an unspecified encryption problem with the phone. The military
judge denied the motion to compel based on his finding that the defense had
failed to meet its burden of persuasion for the relevance of the data. The mili-
tary judge ordered the government to continue its efforts to extract the call
logs and location data from the phone and invited the appellant to re-raise
the motion later if he could establish its relevance. The government eventual-
ly extracted the call logs and provided them to the defense, but no location
data was ever found by the government’s digital forensic examiner. The ap-
pellant did not re-raise the motion.
On appeal, the appellant only challenges the trial counsel’s failure to turn
over the Blackberry cell phone location data as a general violation of the trial
counsel’s discovery obligations. He does not challenge the military judge’s de-
cision to deny his request to compel production of data from the phone.
The UCMJ guarantees an even playing field for prosecution and defense.
They are entitled to an equal opportunity to obtain evidence. Art. 46, UCMJ.
However, as noted above, they are not entitled to production of evidence that
is “destroyed, lost, or otherwise not subject to compulsory process.” R.C.M.
703(f)(2). Here, the government’s investigators were unable to obtain the
phone’s location data from the Blackberry. Accordingly, the appellant could
not meet his threshold burden of establishing that the location data existed.
United States v. Rodriguez, 60 M.J. 239, 246 (C.A.A.F. 2004); United States v.
Watkins, No. 201700073, 2018 CCA LEXIS 315, at *29-30 (N-M. Ct. Crim.
App. 28 June 2018). Even if the appellant had requested the Blackberry loca-
tion data in its discovery request, there was simply nothing in the govern-
ment’s possession to turn over. We find no error in the government’s failure
to disclose evidence that it had not been able to find.
3. GPS Data from the appellant’s vehicle
The appellant did not request that the government produce GPS data
from the appellant’s vehicle, which had been impounded by the government.
Nevertheless, the government attempted, but was unsuccessful in extracting
the data from the vehicle and informed the appellant of that fact. The appel-
lant did not make a motion to compel production of the vehicle’s GPS data
before he entered pleas. Such failure constitutes waiver if the appellant af-
firmatively declined to raise it. R.C.M. 905(e); United States v. Avery, 52 M.J.
496, 498 (C.A.A.F. 2000); United States v. Owens, No. 201300485, 2015 CCA
LEXIS 1, at *8-11 (N-M. Ct. Crim. App. Jan. 8, 2015). Since the data was dis-
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United States v. Gurfein, No. 201700345
cussed as a subject of discovery at trial, but not raised in a defense motion,
we will not say that the appellant affirmatively declined to pursue a motion
to compel. As a result, we will test for plain error. Avery, 52 M.J. at 498.
Under the plain error standard, the appellant has the burden to show
that: “(1) an error was committed; (2) the error was plain, or clear, or obvious;
and (3) the error resulted in material prejudice to substantial rights.” United
States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008).
Here, the appellant fails to prove any plain or obvious error. The govern-
ment attempted to extract GPS data relevant to the dates of the allegations
from the appellant’s car and was unable to do so. 12 There was no evidence to
turn over to appellant.
C. Trial Counsel’s Invocation of the “Dark Web” and “Child Pornog-
raphy” During Cross-Examination of Dr. Clipson and Rebuttal Ar-
gument
The appellant alleges that the trial counsel committed prosecutorial mis-
conduct during his cross-examination of the defense expert psychologist, Dr.
Clipson, and during rebuttal argument.
Prosecutorial misconduct is “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). The legal standard for prosecutorial mis-
conduct was set by the Supreme Court in Berger v. United States, 295 U.S. 78
(1935), in which the Court described prosecutorial misconduct as behavior by
the prosecuting attorney that “overstep[s] the bounds of that propriety and
fairness which should characterize the conduct of such an officer in the prose-
cution of a criminal offense.” Berger, 295 U.S. at 84. The prosecutor, the
Court said, “may prosecute with earnestness and vigor . . . . But while he may
strike hard blows, he is not at liberty to strike foul ones. It is as much his du-
ty to refrain from improper methods calculated to produce a wrongful convic-
tion as it is to use every legitimate means to bring about a just one.” Id. at 88.
“It is not the number of legal norms violated but the impact of those viola-
tions on the trial which determines the appropriate remedy for prosecutorial
misconduct.” Meek, 44 M.J. at 6. Reversal is warranted “when the trial coun-
sel’s comments, taken as a whole, were so damaging that we cannot be confi-
dent that the members convicted the appellant on the basis of the evidence
alone.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014). When
12 Record at 1204, 1227; PE 23.
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United States v. Gurfein, No. 201700345
weighing the damage caused by a prosecutor’s misconduct appellate courts
“should gauge the overall effect of counsel’s conduct on the trial, and not
counsel’s personal blameworthiness.” United States v. Thompkins, 58 M.J. 43,
47 (C.A.A.F. 2003).
With a proper objection at trial, appellate courts review questions of im-
proper argument and prosecutorial misconduct de novo. United States v. Sew-
ell, 76 M.J. 14, 18 (C.A.A.F. 2017). Here, the appellant objected to both inci-
dents he now claims to be prosecutorial misconduct.
Appellate courts balance three factors to test for prejudice: (1) the severity
of the misconduct; (2) the measures adopted to cure the misconduct; and
(3) the weight of the evidence supporting the conviction. United States v.
Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).
1. Cross-examination of Dr. Clipson
At trial on the merits the defense called Dr. Clark Clipson, a forensic and
clinical psychologist, as an expert witness. Dr. Clipson testified that he con-
ducted a sexual offender evaluation on the appellant. The evaluation consist-
ed of an interview and a battery of seven psychological tests. Based on Dr.
Clipson’s analysis of the results, he found no evidence of any kind of antiso-
cial, narcissistic, or borderline personality traits or other psychopathology of
the type associated with individuals who commit sexual offenses against
children. Dr. Clipson testified that the psychological tests contain validation
questions designed to reveal a test-taker who was trying to manipulate the
test results by giving misleading answers. 13 Dr. Clipson testified that he
found no indication from the validation questions that the appellant had at-
tempted to manipulate his test results.
On direct examination, the defense counsel asked Dr. Clipson whether the
appellant could have searched the internet to find the test questions to pre-
pare for the test. Dr. Clipson replied: “He cannot. This test is rigorously pro-
tected by its publishers . . . . So there’s no way — I mean, I have gone online
and tried to see what you can find out about this test. There is nothing
there.” 14
On cross-examination, the trial counsel sought to elicit testimony that the
validation questions could be defeated if the test-taker had access to or
knowledge of the test before taking it. Dr. Clipson testified that it was true,
13 Record at 1458-63.
14 Record at 1891-92.
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but that the creators of the test had extremely stringent measures in place to
protect their test from unauthorized disclosure. The trial counsel asked
Dr. Clipson whether he was aware of the existence of the “dark web” and
whether he knew that there were communities of child pornographers who
used the “dark web” to trade pornography. 15 Dr. Clipson said he was aware of
both. 16
This portion of the cross-examination went as follows:
Q. Have you reviewed the dark web?
A. I have never been on the dark web. I read about it.
Q. You are aware there is child pornography on the dark web?
A. Very much so.
Q. You’re aware that people trade child pornography on the
dark web?
A. Yes.
Q. So you are aware that is a resource — you are aware that
there is a — that there are child pornography communities
on the dark web?
DC: Objection, Your Honor. No child pornography was found
anywhere on any of Major Gurfein’s electronics.
TC: That’s not entirely accurate.
DC: The electronics were with CID and no child pornography
was found during their search.
MJ: Response?
TC: For one, that’s not an accurate statement. But for another,
I am just establishing that there would be such things on
the dark web. That’s all I was going to do.
MJ: Well, all right. Let’s –
DC: Your Honor, let’s go to 39(a), please. 17
We find that the trial counsel’s line of cross-examination was an appro-
priate way for the trial counsel to test the witness’ prior testimony that the
15 Record at 1917.
16 Record at 1917.
17 Record at 1917-18.
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United States v. Gurfein, No. 201700345
tests he administered to the appellant were well protected from those indi-
viduals who were most likely to be subjected to them, i.e., those who commit
sex offenses against children.
The defense counsel’s objection before members, “[n]o child pornography
was found anywhere on any of Major Gurfein’s electronics,” although literally
true, was misleading because it implied that all the appellant’s electronic
media had actually been searched for child pornography and none was found.
In fact, his electronic devices had not been searched for child pornography.
Some of his devices had been partially searched for GPS data. Trial counsel’s
response, “that’s not entirely accurate,” was also misleading because it im-
plied that child pornography had been found on the appellant’s electronics.
The defense counsel’s subsequent statement, “The electronics were with CID
and no child pornography was found during their search,” simply doubled-
down on his initial misleading statement.
Under the invited reply doctrine, a trial counsel may fairly respond to a
claim made by the defense. United States v. Carter, 61 M.J. 30, 33 (C.A.A.F.
2005). Trial defense counsel’s speaking objection invited such a reply, but the
reply had to be fair, even if the defense claim was not. We find that the trial
counsel’s statements, “That’s not entirely accurate,” and “that’s not an accu-
rate statement,” were unfair because they were misleading. There was no ev-
idence of child pornography in appellant’s case. As the trial counsel explained
to the military judge in the subsequent Article 39(a) session, his intended
point was that not all of the appellant’s electronic media had been searched
by law enforcement and so it was misleading for the trial defense counsel to
imply that it had been searched and nothing had been found.18
None of this back-and-forth should have been conducted in front of the
members. The defense counsel should not have made a speaking objection in
front of the members in an effort to introduce evidence, even though true,
that there was no evidence of child pornography in the case. And trial counsel
undoubtedly erred in responding to the speaking objection with such a mis-
leading statement.
Both trial counsel and trial defense counsel bear some measure of respon-
sibility for this situation. The defense counsel recognized his error when he
acknowledged that he was “wrong” and that the trial counsel’s response was
“partly . . . my own fault in the speaking objection.” 19
18 Record at 1922.
19 Record at 1921.
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Having found that the trial counsel’s response was improper, we must
next determine whether his response was so prejudicial “that we cannot be
confident that the members convicted the appellant on the basis of the evi-
dence alone.” United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 2014).
We look at “the overall effect of counsel’s conduct on the trial, and not coun-
sel’s personal blameworthiness.” United States v. Thompkins, 58 M.J. 43, 47
(C.A.A.F. 2003).
We find that all three factors of the Fletcher analysis resolve against the
appellant.
a. The severity of the misconduct
The trial counsel’s erroneous statement, “that’s not entirely true,” was one
isolated instance of misconduct in a very long trial. It occurred only once in
the course of his cross-examination. He never uttered it again or repeated the
idea before members. The misconduct took place during the trial and not dur-
ing argument. The members deliberated for over nine hours before rendering
a verdict. They acquitted the appellant of one of the two charged instances of
indecent exposure. In the Article 120b specification of which they found the
appellant guilty, they excepted out specific language. When directed by the
military judge to move on to a different topic in his cross examination, the
trial counsel complied. Finally, the fact that the trial counsel’s cross-exam-
ination questions were appropriate and the defense counsel’s speaking objec-
tion was misleading also tend to mitigate the severity of the misconduct.
Based on these factors, we find that the trial counsel’s misconduct was not
severe.
b. Measures adopted to cure the misconduct
We note that defense counsel did not request a mistrial as a remedy. In-
stead, he requested that the trial counsel not be allowed to further cross-
examine Dr. Clipson regarding his knowledge of an unrelated subject: an ex-
tra-marital affair the appellant had had. The military judge stated that he
would not allow the trial counsel to ask any further questions regarding the
affair. The defense counsel also requested permission to put a CID investiga-
tor on the stand to ask about the scope of his search of the appellant’s elec-
tronic media. The military judge granted that request. The military judge al-
so directed the trial counsel to not ask any further questions about child por-
nography: “I’m inclined to just shut down this issue by not letting this wit-
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United States v. Gurfein, No. 201700345
ness be asked anything else about child pornography in association with this
case.” 20 He also instructed the members:
I just want to give you a brief instruction. Whenever counsel
object on issues, whatever the content of their objection may be,
that is not evidence in front of you. You must totally disregard
any statements that counsel make, substantive or otherwise, in
their objections to the Court about evidence. The only evidence
that you can consider in this case is the evidence that is proper-
ly admitted through witnesses on the stand or the evidence
that you receive through documents or in my instructions. 21
We find that the military judge took reasonable and effective measures to
remedy the trial counsel’s misleading statement.
c. The weight of the evidence supporting conviction
The evidence against appellant regarding the 2016 allegation of indecent
exposure was very strong. Multiple witnesses put the appellant close to the
scene of the crime at the time the crime was committed. Mrs. S testified that
she saw what appeared to be the appellant’s car stopped in the road down the
street from her home shortly before the offense took place. The timing of
Mrs. S’s observation is consistent with the time that the appellant stopped to
make two phone calls on his cell phone. The appellant told investigators that
he stopped to make his phone calls about 5 to 10 minutes after departing the
base where his office was. L.S. identified the appellant’s vehicle as the one
driven by the man who exposed himself to her and her description of the per-
petrator closely matched the appellant. Mr. S photographed the appellant’s
vehicle in close proximity to the scene of the crime just a few minutes after
the offense took place. The appellant appeared to be trying to evade Mr. S
when Mr. S started following him. We are confident that the members con-
victed the appellant on the basis of only the evidence properly admitted.
2. Trial counsel’s comments in his rebuttal argument
The appellant also argues that the trial counsel committed misconduct
during his rebuttal argument. “The legal test for improper argument is
whether the argument was erroneous and whether it materially prejudiced
the substantial rights of the accused.” United States v. Baer, 53 M.J. 235, 237
(C.A.A.F. 2000). We find that the trial counsel’s argument was not erroneous.
20 Record at 1923.
21 Record at 1927.
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In his closing argument the defense counsel highlighted Dr. Clipson’s tes-
timony that the tests he administered to the appellant were unavailable to
test takers: “And what did he say about those questions, gentlemen? It is im-
possible to track those questions down online. Impossible.” 22 During rebuttal
argument the trial counsel argued that Dr. Clipson testified that he had not
checked the dark web or studies of the dark web to see if the pedophilia and
paraphilia tests he administered to the appellant were available there. Trial
counsel argued, “it is fair to conclude that there is criminal activity on the
dark web where individuals could potentially get such tests.” 23
The trial defense counsel objected to this argument and the military judge
asked the trial counsel for his response. The trial counsel responded that
Dr. Clipson had testified on cross-examination that he had not searched the
dark web and was aware that child pornography was traded on the dark web.
Although the appellant now complains that the trial counsel’s response in
front of members constituted an impermissible speaking objection, it was the
military judge who invited the trial counsel’s response in front of members.
The military judge subsequently gave a general instruction to the members
that it is their recollection of what is in evidence that controls and not coun-
sels’ arguments.
A prosecutor may properly “argue the evidence of record, as well as all
reasonable inferences fairly derived from such evidence.” Baer, 53 M.J. at
237. A prosecutor may not inject his or her 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. United States v.
Burton, 67 M.J. 150, 153 (C.A.A.F. 2009).
We do not find the trial counsel’s statements during rebuttal argument to
be erroneous. They were fair and appropriate comment on the defense evi-
dence that the pedophilia test administered to the appellant was well pro-
tected from unauthorized disclosure.
D. The Military Judge’s Refusal to Sever the Specifications Concern-
ing the 2014 and 2016 Incidents
We review a military judge’s decision to deny an accused’s motion to sever
offenses for an abuse of discretion. United States v. Duncan, 53 M.J. 494, 497-
98 (C.A.A.F. 2000). A military judge abuses his discretion when: (1) he predi-
cates his ruling on findings of fact that are not supported by the evidence of
22 Record at 2146.
23 Record at 2172-73.
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United States v. Gurfein, No. 201700345
record; (2) he uses incorrect legal principles; (3) he applies correct legal prin-
ciples to the facts in a way that is clearly unreasonable; or (4) he fails to con-
sider important facts. United States v. Solomon, 72 M.J. 176, 180–81
(C.A.A.F. 2013).
There is a general preference in the military for the joinder of all known
offenses at one trial. United States v. Southworth, 50 M.J. 74, 76 (C.A.A.F.
1999). “Ordinarily all known charges should be referred to a single court-
martial.” R.C.M. 601(e)(2), Discussion. That preference improves judicial
economy and usually works to the benefit of an accused. “[U]nified sentencing
by a court-martial favors joining all known offenses into a single trial, thus
exposing the accused to only one sentence for his criminal misconduct, rather
than a series of separate sentences.” United States v. Giles, 59 M.J. 374, 379
(C.A.A.F. 2004) (quoting United States v. Haye, 29 M.J. 213, 215 (C.M.A.
1989)).
The burden is on the defense as the moving party to demonstrate by a
preponderance of the evidence that severance is required. R.C.M. 905(c). The
trial court has wide discretion in determining whether or not to sever offens-
es. An abuse of discretion will be found only “where the defendant is able to
show that the denial of a severance caused him actual prejudice in that it
prevented him from receiving a fair trial; it is not enough that separate trials
may have provided him with a better opportunity for an acquittal.” United
States v. Duncan, 53 M.J. 494, 497-98 (C.A.A.F. 2000) (citations omitted).
Severance of offenses is required only to prevent manifest injustice.
R.C.M 906(b)(10). The factors we consider when determining whether a mili-
tary judge has abused his discretion in applying the “manifest injustice” test
of R.C.M. 906(b)(10) are: (1) whether evidence of one offense would be admis-
sible in the trial of the charged offense; (2) whether the military judge gave a
limiting instruction to keep the evidence of the offenses separate; and
(3) whether the findings reflect an impermissible crossover. United States v.
Southworth, 50 M.J. 74, 76 (C.A.A.F. 1999); United States v. Curtis, 44 M.J.
106, 128 (C.A.A.F. 1996), rev’d as to sentence on recon., 46 M.J. 129 (C.A.A.F.
1997).
The military judge ruled that the defense did not carry its burden in
showing that severance was necessary to prevent a manifest injustice. Our
analysis of the Southworth/Curtis factors leads to the conclusion that the
military judge did not abuse his discretion in making this ruling.
On the first factor, the military judge found that evidence in each allega-
tion would be admissible under MIL. R. EVID. 404(b) in the trial of the other
allegations. Later in the trial the military judge modified his ruling to limit
the government’s use of MIL. R. EVID. 404(b) evidence such that evidence re-
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United States v. Gurfein, No. 201700345
garding the 2016 incident could be considered by the members to prove iden-
tity and intent in the 2014 incident, but not vice versa.
As to the second factor, the military judge gave both spillover and limiting
instructions to the members to ensure the evidence was only used for proper
purposes. The military judge’s MIL. R. EVID. 404(b) limiting instruction re-
flected his decision to only allow the members to consider evidence of the
2016 incident in determining identity and intent in the 2014 incident. Fur-
ther, the military judge instructed the members that they were not allowed to
consider the evidence to infer, assume, or prove that the appellant had com-
mitted any other offense.
On the third factor, the findings do not indicate an impermissible crosso-
ver. The appellant was acquitted of all criminal conduct regarding the 2014
incident.
“A military judge’s ruling constitutes an abuse of discretion only if it is
‘arbitrary, fanciful, clearly unreasonable or clearly erroneous,’ not if this
Court merely would reach a different conclusion.” United States v. Sullivan,
74 M.J. 448, 454 (C.A.A.F. 2015) (quoting United States v. Brown, 72 M.J.
359, 362 (C.A.A.F. 2013)). We find that the military judge’s ruling on the sev-
erance motion was fair, reasonable, and in compliance with the law. The mili-
tary judge appropriately and strictly limited the government’s use of the evi-
dence in question and the fact that the members acquitted the appellant of
the 2014 incident indicates that they did not use the evidence inappropriate-
ly. The military judge did not abuse his discretion.
E. Cumulative Error
We review allegations of cumulative error de novo. United States v. Pope,
69 M.J. 328, 335 (C.A.A.F. 2011).
“Under the cumulative-error doctrine, ‘a number of errors, no one perhaps
sufficient to merit reversal, in combination necessitate the disapproval of a
finding.’” Id. (quoting United States v. Banks, 36 M.J. 150, 170-71 (C.M.A.
1992)).
“Courts are far less likely to find cumulative error where evidentiary er-
rors are followed by curative instructions or when a record contains over-
whelming evidence of a defendant’s guilt.” United States v. Dollente, 45 M.J.
234, 242 (C.A.A.F. 1996) (citations and internal quotations omitted). An ap-
pellate court will reverse only if it finds the cumulative errors denied the ap-
pellant a fair trial. Id. at 242 (citing Banks, 36 M.J. at 170-71).
Having found appellant’s individual allegations of error to be without
merit or without prejudice to his substantial rights, there is no need for us to
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analyze the case further under the cumulative-error doctrine. United States
v. Gray, 51 M.J. 1, 61 (C.A.A.F. 1999).
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel,
we have determined that the approved findings and sentence are correct in
law and fact and that no error materially prejudicial to the appellant’s sub-
stantial rights occurred. Arts. 59 and 66, UCMJ. Accordingly, the findings
and sentence as approved by the convening authority are AFFIRMED.
Chief Judge WOODARD and Senior Judge FULTON concur.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
21