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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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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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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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-

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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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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

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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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