Petition for Writ of Certiorari — Erickson v. United States (No. 07-316)

U.S.

() Smee

07-316 SFP 10 2007

NO. _ OFFICE OF THE CLERK

In The Supreme Court of the United States

STAFF SERGEANT KELLY S. ERICKSON,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Armed Forces

PETITION FOR WRIT OF CERTIORARI

MARK R. STRICKLAND, LT COL, USAF

Counsel of Record

GRIFFIN S. DUNHAM, Capt, USAF

Counsel for Petitioner

APPELLATE DEFENSE DIVISION

AIR FORCE LEGAL OPERATIONS AGENCY

112 LUKE AVENUF, SUITE 343

BOLLING AFB, DC 20332-8000

(202) 767-1562

QUESTION PRESENTED

Whether Article 3(a), Uniform Code of Military

Justice, was unconstitutionally applied to the

appellant and thereby precluded court-martial

jurisdiction.

iil

TABLE OF CONTENTS

Page

BARREes SI PU TEE CBS eicrcccvrecosenscosvevensceneons iv

CITATIONS AND OPINIONS .........cc ccc ceceeeeeeeeees l

ey EE saint resists ectintacesininabiniienabions l

CONSTITUTIONAL AND STATUTORY

PRP Bette BU V OL VED cncsenereccicccsverccesessosverss |

BE FEES COO FEMS CP lence conienicscesseserstcsovenste 2

REASONS FOR ISSUING THE WRIT.................. 5

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APPENDIX A

Opinion of the United States Court of Appeals for

the Armed Forces. (22 June 2007) ................0ecceee la

APPENDIX B

Opinion of the United States Air Force Court of

Criminal Appeals (10 May 2006) ..................000 17a

TABLE OF AUTHORITIES

Constitutional Provisions

ARE 1 Be. Siti etticitcinintesicanind 12,13

United States Supreme Court Decisions

Kahn v. Anderson,

Re Re SEES cchccnibceliocsvvesechounentanioniapcoeccans’ 18

Toth v. Quarles,

Fa es CE tities inatabetr tome Passim

Military Court Decisions

Pearson v. Bloss,

Be is FT eh. SD i cdicsvisotecitiovenettonrssets 19

Smith v. Vanderbush,

BPE. FO APT PFT itieccecvcsscivevsayennes 17,18

Willenbring v. Neurater,

Be ES. Fe Le PRI UI hicscinctienticeiceane 15-19

United States v. Clardy,

De lt, Per Rs ERE). cn tsccsovessavivssseves 18-19

United States v. Nelson.

ee ee Ac SSD wdicccdsdsexcceedsounmoace 18

United States v. Sloan,

Fe NE MIs BUD sco sss endsceosacadcdepebavauans 19

United States v. Smith,

ee as 0 cetcisicccesacecaeasiivervintcinte 14

Federal Statutes

PASEO Fe Tee. Ce ers OD teens saseevaveciesncovesies 2

Article 2, UCMJ, 10 U.S.C. § 802.................006. 18,19

Misc.

Zeigler, The Termination of Jurisdiction over the

Person and the Offense, 10 Mil. L. Rev 139, 142

| RCRA eee eyo mmrenemennee 10,11

The petitioner, Staff Sergeant Kelly S. Erickson,

respectfully prays **at a writ of certiorari issue to

review the order ..« judgment of the United States

Court of Appeals for tne Armed Forces entered in his

case on June 22, 2007.

CITATIONS AND OPINIONS

The order and judgment of the United States

Court of Appeals for the Armed Forces, United

States v. Erickson, 65 M.J. 221 (C.A.A.F. 2007),

dated 22 June 2007, is located at Appendix A. The

published opinion of the United States Air Force

Court of Criminal Appeals, United States v.

Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006),

dated 28 April 2006, is located at Appendix B.

JURISDICTION

The judgment of the United States Court of

Appeals for the Armed Forces was entered on June

22, 2007. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1259(3).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article 3(a), UCMJ, 10 U.S.C. § 803(a), states:

...a@ person who is in a status in

which the person is subject to this

chapter and who committed an

offense against this chapter while

.

formerly in a status in which

the person was subject to this chapter

is not relieved from amenability to

the jurisdiction of this chapter for

that offense by reason of a

termination of that person’s former

status.

STATEMENT OF THE CASE!

This case presents the question of whether

Article 3(a), UCMJ, 10 U.S.C. § 803(a), subjected

the appellant to court-martial jurisdiction when the

crimes he allegedly committed occurred during a

previous enlistment and he thereafter separated the

Army, experienced a break in_ service, and

subsequently enlisted in the Air Force.

The appellant enlisted in the United States

Army on 22 January 1993. He served in the Army

until 14 June 2001, when he received an honorable

discharge. On 29 August 2001, the appellant

enlisted in the United States Air Force for a term of

four years.

During the appellant’s court-martial, the

military judge sua sponte questioned the trial

' Facts contained within this writ are provided as determined

by the Air Force Court of Cnminal Appeals. See United States

v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006)

(Appendix B).

3

counsel about their position regarding the

appellant’s “break in service and how it may affect

the very specifications that go back beyond

September of -- excuse me, August of 2001.” The

trial counsel’s position was

that during all the relevant charged

time frames the accused was a

member of the United States Army

and that the break in service does not

in any way vitiate or affect the

United States’ jurisdiction over the

charged offenses. At all the relevant

charged time frames the accused was

a member of the United States Army

or the United States Air Force and

was at all relevant times subject to

the Uniform Code of Military

Justice.

The defense concurred with this position with

regard to the charged offenses. The military judge

admitted that the “jurisdictional impact of a break in

service” and a change in branch of service was an

issue that he had not considered.

Although he could not find any cases directly

on point, the military judge concluded:

Article 3(a), Uniform Code _ of

Military Justice, which the current

version became effective on 23

4

October 1992, clearly states that

despite a break in service, that when

somebody reenters military service

and I don’t believe it makes any

difference which branch it may be,

whether they are the same, different,

or what have you, that once an

individual comes back on active duty

then for offenses that occurred

during a previous service over which

the military courts had subject matter

jurisdiction, given the fact that the

court’s [sic] currently have in

personam jurisdiction by virtue of

the fact that the individual is

currently on active duty, that Article

3(a) would change a previous state of

the law to indicate that the court

retains jurisdiction over the offenses

occurring in the previous enlistment.

Trial counsel and defense counsel both

concurred with the military judge’s understanding

of Article 3(a), UCMJ, and its application to the

appellant's offenses. As a result, the military judge

continued his guilty plea inquiry. In accordance

with his pleas, the military judge found the

appellant guilty of one specification of violating a

lawful order, two specifications of raping a female

5

under the age of 12 years, one specification

of sodomy with a female under the age of 12 years,

two specifications of committing an indecent act

upon a female under the age of 16, three

specifications of taking indecent liberties with a

female under the age of 16, and one specification of

communicating indecent language to a female under

the age of 16, in violation of Articles 92, 120, 125,

and 134, UCMJ. Additionally, the appellant pled

not guilty to one specification of perjury, in

violation of Article 134, UCMJ. The appellant was

found not guilty of perjury, but guilty of obstruction

of justice. The military judge sentenced the

appellant to a dishonorable discharge, confinement

for life with the possibility of parole, and reduction

to E-1.

REASONS FOR ISSUING THE WRIT

Appellant cites United States ex rel. Toth v.

Quarles, 350 U.S. 11 (1955), as the leading

Supreme Court case relevint to this issue. Since

Toth’s publication a half century ago, it has been

universally accepted that courts-martial possess

limited jurisdiction, aimed at specific ends.

Toth served the Air Force in Korea and was

then honorably discharged. He returned to his

home in Pittsburgh and worked in a steel plant.

Five months later, he was arrested by military

authorities for murder and conspiracy to commit

6

murder while in Korea. He was returned from

Pittsburgh to Korea to stand trial before a court-

martial. The District of Columbia Court of Appeals

held that civilian ex-servicemen like Toth could

constitutionally be tried by court-martial. This

Court granted ceritiorari on the issue. /d. at 13.

This landmark case held that 1950 legislation

purporting to permit military trials in such cases

exceeded the outer limits of court-martial

jurisdiction; it could not be sustained on the

constitutional power of Congress “To raise and

support Armies,” “To declare War,” or to punish

“Offences against the Law of Nations.” Neither

could authority over civilians rest on the President’s

power as commander-in-chief, or on any theory of

martial law. Finally, the power granted Congress

“To make Rules for the Government and Regulation

of the land and naval Forces,” as supplemented by

the Necessary and Proper Clause could not salvage

jurisdiction. /d. at 13-14.

It has never been intimated by the Supreme

Court, however, that Article I military jurisdiction

could be extended to civilian ex-soldiers who had

severed all relationship with the military and its

institutions. To allow this extension of military

authority would require an extremely broad

construction of the language used in_ the

constitutional provision relied on. Given its natural

7

meaning, the power granted Congress “To

make Rules” to regulate “the land and naval Forces”

would seem to restrict court-martial jurisdiction to

persons who are actually members or part of the

armed forces. There is a compelling reason for

construing the clause this way: any expansion of

court-martial jurisdiction like that in the 1950 Act

necessarily encroaches on the jurisdiction of federal

courts set up under Article III of the Constitution

where persons on trial are surrounded with more

constitutional safeguards than in military tribunals.

Id. at 15.

The Court continued:

We find nothing in the history or

constitutional treatment of military

tribunals which entitles them to rank

along with Article III courts as

adjudicators of the guiit or innocence

of people charged with offenses for

which they can be deprived of their

life, liberty or property. Unlike

courts, it is the primary business of

armies and navies to fight or be

ready to fight wars should the

occasion arise. But trial of soldiers

to maintain discipline is merely

incidental to an army's primary

fighting function. To the extent that

8

those responsible for performance

of this primary function are diverted

from it by the necessity of trying

cases, the basic fighting purpose of

armics 1s not served.

Id. at 17.

Appellant contends that Article 3, UCMSJ, as

applied here, flouts bedrock principles enunciated in

Toth. One who is discharged from the service or

who otherwise terminates his status subject to the

Code may not be tried by court-martial for an

offense committed prior to discharge or termination

of status; this is so even if that person later again

becomes subject to the UCMJ.

The new, anarchic view carries military

jurisdiction far beyond the rationale set forth in

Toth: Military jurisdiction in a free Republic goes

only to the point necessary for the armed forces to

achieve their primary business -- fighting wars. The

military cannot try former military personnel

accused of stateside offenses when civilian courts

are open and functioning.

Congressional legislation is circumscribed by

the safeguards of the Constitution and interpretation

of the courts. Nothing has changed since Toth.

Toth invalidated Article 3(a) of the Code -- at least

insofar as it purported to grant jurisdiction to courts-

martial over persons who had severed all military

9

connections. See Zeigler, The Termination

of Jurisdiction over the Person and the Offense, 10

Mil. L. Rev 139, 142 (October 1960).

Civilian courts remain open and ready to

proceed, especially in cases such as this when the

offenses are not uniquely military in nature.

Furthermore, it was the understanding of both this

appellant and the Army that he was being returned

to civilian status. See generally Zeigler, supra at

164. The hiatus was a half year in duration. His

subsequent entry into the Air Force was an entirely

new term of service.

Congress creates court-martial jurisdiction

pursuant to its supervisory powers over the military.

Fulfilling its role under the Separation of Powers,

the judiciary sets acceptable limits on military

jurisdiction. As already noted, Toth held that 1950

legislation purporting to extend court-martial

jurisdiction to the crimes of former service

members improper under any of the various

constitutional powers enjoyed by Congress. Justice

Black explained that while Congress’s authority to

create court-martial jurisdiction:

sprang from the belief that within the

military ranks there is need for a

prompt, ready-at hand means of

compelling obedience and order{,]...

Army discipline will not be

10

improved by court-martialing

rather than trying by jury some

civilian ex-soldier who has been

wholly separated from the service for

months, years or perhaps decades.

Consequently considerations of

discipline provide no excuse for new

expansion of court-martial

jurisdiction at the expense of the

normal and constitutionally

preferable system of trial by jury.

Id. at 22-23 (emphasis added).

Because it exceeds constitutional limitations,

Article 3(a) was unconstitutionally applied here.

Playing its part in the Separation of Powers, the

Supreme Court has ruled that Congress enjoys no

more and no less jurisdiction than permitted by

Article I, Section 8, Clause 14 of the Constitution

and its judicial interpretations. Toth, supra, at 15.

Legitimacy of a court-martial proceeding depends

on whether military authority validly exists over

both the person and the act.

In examining the exercise of military

jurisdiction, the Court in Joth emphasized that

Article I, § 8, Cl. 14 limits military jurisdiction, and

that Congress could never claim continuing court-

martial jurisdiction. /d.

11

The Court first reasoned that the nexus

between the military and _ unconditionally

discharged ex-soldiers was too attenuated. It then

determined that such an extension of court-martial

sway exceeded “the least possible power adequate

to the end proposed;” 1.c., supervisory regulation of

the armed forces.

Toth has never been overruled. The broadened

claim of jurisdiction deemed unconstitutional in

1955 remains unconstitutional today:

Whenever an enactment of Congress

to cure weaknesses in criminal

procedure is declared

unconstitutional by this Court on the

ground of lack of legislative power,

the door is closed for all practical

purposes forever on the method that

Coryzress deems’ effective for

correcting crime. Only an overruling

of this case can change today’s

constitutional determination.

Toth, supra at 24 (Reed, J. dissenting) (emphasis

added).

The appellant argues that the claimed

jurisdiction over him fails for the precise reasons

enunciated in Toth. His later enlistment in the Air

Force does not alter the fact that his relationship to

12

the Army was completely severed for

six months after his honorable discharge. He held

no continuing service obligation of any sort. Like

Toth, the appellant became a civilian and was

available to be tried before an Article III court.

Military jurisdiction is created by statute.

However, it is limited to those constitutionally

brought to court-martial. See United States vy.

Smith, 4 M.J. 265, 266 (C.M.A. 1978). Appellant’s

case involves a novel prosecution theory of revived

or continuing jurisdiction. Congress’s grant of

court-martial jurisdiction may under extremely

limited circumstances, extend after a person has

been separated from the service. However, courts

have applied this concept most sparingly:

objectively, the handful of exceptions _ lic

comfortably within Constitutional standards.

In Willenbring v. Neurater, 48 MJ. 152

(C.A.A.F. 1998), the Court decided a case on

similar facts to the case at bar. However, it does not

resolve the Constitutional jurisdictional challenge

posed here. Willenbring was an Army Reservist

seeking extraordinary relief. The Court held that,

under applicable military statutes, jurisdiction

existed over him after his military status had

completely terminated -- but only since the offense

could not be tried in civil court and the maximum

possible confinement was five years or more. The

13

Court also held that the statute authorizing

Reserve activation for disciplinary purposes

extended to offenses occurring during either prior

regular or reserve duty. This case fails to resolve

whether it was constitutionally permissible to

extend the reach of Article 3.

The Court began by reiterating long-established

rules:

Jurisdiction of courts-martial is

governed by statutes enacted under

the constitutional power of Congress

to establish ‘Rules’ for the

Government and Regulation of the’

armed forces. U.S. Const. art. 1, § 8,

cl. 14. Congress and the courts have

ensured that military trials are

similar in many respects to civilian

proceedings, but it is well established

that courts-martial--which are

authorized by _— statutes enacted

pursuant to Article 1 of the

Constitution -- need not provide a

military accused with the same

procedural rights available to a

civilian defendant in a criminal trial

conducted under Article III.

Id. at 157 (emphasis added).

14

Given these differences, both the

Supreme Court and military courts have insisted

that courts-martial not exercise jurisdiction beyond

that granted by applicable statutes.

The Willenbring Court then listed some

examples:

As a matter of constitutional law, the

Supreme Court has held _ that

Congress may not extend court-

martial jurisdiction to cover civilians

who have no military status in

peacetime, even if they are

accompanying United States forces

overseas as employees or

dependents. Likewise, a court-

martial may not exercise jurisdiction

over a former service member whose

relationship with the armed forces

has been severed completely as a

result of a valid discharge and who is

not otherwise in a status that is

subject to court-martial jurisdiction.

See United States ex rel. Toth vy.

Quarles, 350 U.S. 11, 14-15 (1955);

Smith v. Vanderbush, 47 M.J. 56, 58-

59 (C.A.A.F. 1997).

Id. at 157.

15

The Court suggested that discharge or other

separation from military service need not preclude

trial by court-martial if, at the time military

jurisdiction is claimed, the individual is still a

member of the armed forces “or is otherwise in a

status subject to military law”:

For example, a prisoner in_ the

custody of the armed forces as a

result of a court-martial sentence

remains subject to court-martial

jurisdiction regardless of a discharge

from military service. See Art.

2(a)(7); Kahn v. Anderson, 255 U.S.

1, 7-8 (1921); United States v.

Nelson, 33 C.M.R. 305, 306-07

(C.M.A. 1963). In addition, a

service member who is discharged

before his enlistment expires and

immediately reenlists may be tried

for pre-discharge offenses occurring

during the prior enlistment. See

United States v. Clardy, 13 M.J. 308,

316 (C.M.A. 1982). Likewise,

certain statutorily designated

categories of military retirees are

subject to trial by court-martial,

including trial for offenses

committed during a prior enlistment,

16

even though they no longer are

performing military dutics. See Arts.

2(a)(4)-(S) and 3(a); United States

v. Sloan, 35 M.J. 4, 7-8 (C.M.A.

1992); Pearson v. Bloss, 28 M.J.

376 (C.M.A. 1989).

Id. at 158.

The Court noted that Willenbring was subject to

an earlier version of Article 3(a). Accordingly, the

case does not resolve an attempted expansion of

military jurisdiction under subsequent legislation.

Willenbring should not be interpreted to say that

one subject to military jurisdiction at the time of the

court-martial and at the time of the offense might be

tried by the military. First, Willenbring was still a

Reservist. Second, his case was decided under a

different statute. It follows that his case did not

push beyond the Constitutional cautions and

limitations declared in Toth. What is not decided

or addressed in Willenbring is the instant question:

Is this extension of “jurisdiction” on the appellant's

fact pattern Constitutionally permissible under

Toth?

As universally conceded. Toth held that it was

Constitutionally impermissible to try a former

service member by court-martial for prior service

offenses. The ruling was definitive. Justice Black

stated:

17

Court-martial jurisdiction

sprang from the belicf that within the

military ranks there is need for a

prompt, ready-at-hand means of

compelling obedience and order.

But Army discipline will not be

improved by court-martialing rather

than trying by jury some civilian ex-

soldier who has_ been’ wholly

separated from the service for

months, years or perhaps decades.

Consequently considerations of

discipline provide no excuse for new

expansion of court-martial

jurisdiction at the expense of the

normal and constitutionally

preferable system of trial by jury.

Id. at 22-23 (emphasis added).

Despite any Willenbring dicta to the contrary,

the Supreme Court did not say reentry into the

service would revive jurisdiction. If anything, Toth

held the precise opposite. So does a century and a

half of precedent.

Willenbring 1s distinguishable. It deals with an

earlier version of the UCMJ designed to permit

courts-martial to hear cases where civilian courts

are unavailable. More importantly, it did not

resolve the precise Constitutional issue raised here —

i8

whether a_ legislative attempt to _— establish

“revived” jurisdiction is unconstitutional under Toth

as a violation of Separation of Powers.

This appellant insists he is not subject to a

military trial. He argues that his reenlistment

following a total discharge does not resurrect court-

martial authority for pre-discharge offenses. This is

particularly true when there was no intent of the

parties (individual and Government) to effectuate

continuous service.

CONCLUSION

The UCMJ did not have jurisdiction to court-

martial the appellant. Article 3(a) legally precluded

the government from prosecuting the appellant for

prior enlistment crimes when a clear break in

service subsequently occurred. The petitioner

therefore respectfully requests that this Court grant

his petition for a writ of certiorari.

Respectfully submitted,

MARK R. STRICKLAND

Lt COLONEL, U.S. AIR FORCE

Counsel of Record

19

GRIFFIN S. DUNHAM

CAPTAIN, U.S. AIR FORCE

Counsel for Petitioner

Appellate Defense Division

Air Force Legal Operations Agency

112 Luke Avenue, Suite 343

Bolling AFB, DC 20332-8000

(202) 767-1562

la

APPENDIX A’

UNITED STATES, Appellee

Vv.

Kelly S. ERICKSON, Staff Sergeant, U.S. Air

Force, Appellant

No. 06-0715

UNITED STATES COURT OF APPEALS FOR

THE ARMED FORCES

65 M.J. 221

February 27, 2007, Argued

June 22, 2007, Decided

COUNSEL: For Appellant: Captain Griffin S.

Dunham (argued); Lieutenant Colonel Mark R.

- Although the Court of Appeals for the Armed Forces opinion

does not contain reference to the jurisdictional issue currently

petitioned before this Court, it nevertheless affirmed the

decision of the Air Force Court of Criminal Appeals and

thereby preserved the issue for this Court.

2a

Strickland and Major David P. Bennett (on brief).

For Appellee: Major Kimani R. Eason (argued);

Colonel Gerald R. Bruce, Lieutenant Colonel

Robert V. Combs, and Major Matthew S. Ward (on

brief).

JUDGES: ERDMANN, J., delivered the opinion of

the court, in which EFFRON, C.J., and RYAN, J.,

joined. STUCKY, J., filed a separate opinion

concurring in the result, in which BAKER, J.,

joined.

OPINION BY: ERDMANN

Staff Sergeant Kelly S. Erickson was tried at

McChord Air Force Base (AFB), Washington, by a

military judge sitting as a general court-martial. He

was charged with numerous sexual offenses

involving his minor daughters as well as

subornation of perjury and violating a no-contact

order. Under a pretrial agreement, Erickson entered

guilty pleas to the sexual offenses and a plea of not

guilty to the perjury charge. The military judge

accepted Erickson's guilty pleas and found him

guilty of the lesser included offense of obstruction

of justice under the perjury charge.

3a

Erickson was sentenced to reduction to airman

basic (E-1), dishonorable discharge and

confinement for life with eligibility for parole. The

sentence was approved by the convening authority

with mandatory forfeitures deferred and waived for

the benefit of Erickson's family. The United States

Air Force Court of Criminal Appeals affirmed the

findings and sentence. United States v. Erickson, 63

M.J. 504 (A.F. Ct. Crim. App. 2006).

When arguing for what is perceived to be an

appropriate sentence, the trial counsel is at liberty to

strike hard, but not foul, blows." United States v.

Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).

We granted review in this case to determine

whether trial counsel committed plain error during

his sentencing argument by comparing Erickson to

Hitler, Saddam Hussein, and Osama bin Laden, and

describing him as a demon belonging in hell. We

conclude that Erickson has failed to establish plain

error and therefore affirm the decision of the Court

of Criminal Appeals.

BACKGROUND

Erickson admitted to a number of sexual

offenses that occurred between 1996 and 2002,

including the rape of his older daughter and rape,

sodomy, indecent acts, indecent liberties and using

indecent language withhis younger daughter.

During sentencing, the Government introduced

4a

Stipulations of Expected Testimony from the two

girls as evidence in aggravation. The older daughter

stated that when she was about cight years old,

Erickson would kiss and fondle her, put his hands

down her pants and penetrate her with his fingers.

On one occasion he had sex with her after offering

her gifts. He later told her not to tell anyone about

his conduct or he would” go to jail.

Erickson abused the younger daughter starting

when she was five and continuing until she was ten.

He had sex with her as often as several times a day:

had oral sex with her; attempted anal sex: fondled

and kissed her; took showers and baths with her;

penetrated her with a_ dildo; showed her

pornographic videos; placed her in sexual situations

with her brother and the family dog; took naked

pictures of her; and had phone sex with her.

At the sentencing phase of Erickson's court-

martial, trial counsel introduced his sentencing

argument to the military judge with the following

remarks:

What is evil? It's a dramatic

question. It is not a concrete question

and it defies a scientific answer. It

likely means something different to

virtually everyone. History. current

events, are replete with examples of

people who have been argued who

are the embodiments of evil, Adolph

Sa

Hitler, Saddam Hussein, Osama bin

Laden. Men who have _ killed

innocent women and_ children,

poisoned the world with their rage

and their fanaticism. Well, as awful

as those men and those actions are

there is an advantage, frankly, to evil

that eventually becomes so open and

notorious. You can see it coming.

You can prepare your defenses. It

has been quipped countless times

that the greatest trick the devil ever

performed was convincing the world

that he didn't exist. The message

there is that the evil that you can't

see coming, the evil that ts hidden,

that is so insidious. Evil can hide the

pitchfork, hide the horns, hide the

tail. It can hide behind a facade of

respectability, a facade of caring.

Even a facade of, well, this accused.

Staff Sergeant Erickson, sitting here

in this courtroom, right here, right

now, is evil. The insidious type.

This demon so —_— masterfully

manipulated his victims for so long a

period of time, the little girls still

don't see the evil.

6a

In closing, trial counsel continued: "He is evil.

The place for evil, of course, is hell. His children

should not suffer him a single day of freedom

before he goes there. Society should not suffer him

a single day of freedom before he goes there."

Defense counsel did not object at any point to

this part of trial counscl’s argument. On appeal to

the Court of Criminal Appeals, Erickson argued that

"the trial counsel improperly inflamed the passions

and appealed to potential religious biases of the

military judge during his argument" and asked the

lower court to order a rehearing on the sentence or

reduce it to no greater than forty years. Erickson, 63

M.J. at 509. While the Air Force court held that the

comments in this case went well outside the bounds

of fair comment and amounted to plain and obvious

error, it found no material prejudice to Erickson's

substantial rights. /d. at 509-10. The lower court

held that there was no clear evidence the military

judge considered the comments and that the

misconduct in this case was so severe that the

military judge would have imposed the same

sentence regardless of the comments. /d.

DISCUSSION

When a defense attorney fails to object to a

sentencing argument at the time of trial, appellate

7a

courts review the statement for plain error. United

States v. Barrazamartinez, 58 M.J. 173, 175

(C.A.A.F. 2003); United States v. Gilley, 56 M.J.

113, 123 (C.A.A.F. 2001). In order to prevail under

a plain error analysis, Erickson must demonstrate

that: "(1) there was an error; (2) it was plain or

obvious; and (3) the error materially prejudiced a

substantial right." United States v. Kho, 54 M.J. 63,

65 (C.A.A.F. 2000); United States v. Finster, 51

M.J. 185, 187 (C.A.A.F. 1999).

The sole issue before this court concerns the

third element of the plain error test -- whether the

error materially prejudiced a substantial right.’ In

assessing prejudice under the plain error test where

prosecutorial misconduct has been alleged: [WlJe

look at the cumulative impact of any prosecutorial

misconduct on the accused's substantial rights and

the fairness and integrity of his trial... . We believe

the best approach involves a balancing of three

factors: (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). Although the second Fletcher

factor adds little to the analysis in a judge alone

trial, there is no reason not to apply the first and

third factors in that context. We consider the

Fletcher factors to determine whether "trial

counsel's comments, taken as a whole, were so

Sa

damaging that we cannot be confident" that

Erickson was sentenced "on the basis of the

evidence alone." /d.

FOOTNOTES

1 The Court of Criminal Appeals’ decision

concerning the first two prongs of the plain error

test was not appealed to this court. Where neither

party appeals a ruling of the court below, that ruling

will normally be regarded as law of the case and

binding upon the parties. United States v. Parker, 62

M.J. 459, 464 (C.A.A.F. 2006). Where there is no

appeal, this court will not review the lower court’s

ruling unless “the lower court’s decision is ‘clearly

erroneous and would work a manifest injustice’ if

the parties were bound by it.” United States v. Doss,

57 M.J. 182, 185 (C.A.A.F. 2002) (citation

omitted). Neither party argued that the rulings were

clearly erroneous or would work a manifest

injustice.

Severity of the misconduct. Erickson argues that

trial counsel's misconduct was severe because he

invoked infamous enemies of the United States and

sought to identify Erickson as a demonic figure. As

a result, he concludes, the military judge could not

separate his personal religious views from his

sentencing decision. The Government responds that

9a

because the improper references constituted a

relatively limited portion of trial counsel's lengthy

sentencing argument, the misconduct was _ not

severe.

In Fletcher, this court evaluated the severity of

trial counsel's improper comments based on, inter

alia, "the raw numbers -- the instances of

misconduct as compared to the overall length of the

argument,” and the degree to which the improper

references were spread throughout the argument or

the case as a whole. 62 M.J. at 184; see also United

States v. Modica, 663 F.2d 1173, 1181 (2d Cir.

1981). Here, the improper comments amounted to

less than a single page out of trial counsel's twenty-

two page sentencing argument. Although the

improper references appeared at both the beginning

and the end of the sentencing argument, they were

confined to those locations and did not permeate the

entire argument. No improper references were made

during the Government's rebuttal sentencing

argument.

The lower court found that the trial counsel's

comparison of Appellant to Hitler, bin Laden, and

Hussein was improper and "went well beyond the

norm and were outside the bounds of fair

comment." Erickson, 63 M.J. at 510. Nevertheless,

these comments were made in the context of a

permissible theme -- that unseen evil is worse than

open and obvious evil. It reflected both the gencral

10a

belief of young children that their father would not

wish to do them harm and Erickson's actions to

conceal his conduct. While we do not condone the

references, in this context, and in view of the

limited number of references in a lengthy argument,

we do not consider the misconduct to be "severe."

Judge alone trial. Erickson contends that

because the military judge listened to the argument

without interruption, there were no measures taken

to cure the error. The Government responds that in

an argument before a military judge alone, the

military judge need not act to cure misconduct

because he is presumed to know and follow the law.

United States v. Rodriguez, 60 M.J. 87, 90

(C.A.A.F. 2004).

In United States v. Knickerbocker, 25 C.M.A.

346, 2 M.J. 128, 129, 54 C.M.R. 1072 (C.M.A.

1977), this court emphasized the importance of

swift corrective action by the military judge to

remedy the effects on a court-martial panel of a

prosecutor's improper comments. See also Baer, 53

M.J. at 239; Berger v. United States, 295 U.S. 78,

85, 55 S. Ct. 629, 79 L. Ed. 1314 (1935). In this

case, however, no panel heard trial counsel's

improper remarks and the military judge had no

obligation to provide an instruction. Cf United

States v. Horn, 9 MJ. 429, 430 (C.M.A. 1980).

Military judges are presumed to know the law and

lla

to follow it absent clear evidence to the contrary.

United States v. Mason, 45 M.J. 483, 484 (C.A.A.F.

1997). As part of this presumption we further

presume that the military judge is able to distinguish

between proper and improper sentencing arguments.

Erickson argues that since the military judge did not

note that the references were improper and state on

the record that he would not consider them, we do

not know how he perceived the argument. Erickson

fails, however, to provide any evidence that would

rebut the presumption. There is nothing in the

record that reflects that the military judge was

biased or in any way swayed by the comments.

FOOTNOTES

2 While not the case here, if a defendant introduced

evidence to rebut the presumption, we would then

consider whether the military judge undertook

“curative measures,” such as a clear statement on

the record that he would not consider the improper

comments.

Weight of evidence supporting the sentence.

Erickson argues that although the evidence against

him was strong, it did not justify a sentence of

confinement for life with eligibility for parole,

which was greater than the usual sentence in child

sexual abuse cases. The Government responds that

12a

the evidence weighed heavily in favor of the

sentence imposed because of the negative and

ongoing impact of the abuse on Erickson's young

victims.

While we recognize that Erickson received a

sentence at the higher end of the sentencing

spectrum for child sexual abuse cases, the facts in

this case are particularly egregious. The sentence

was not the highest possible sentence and the Court

of Criminal Appeals found that it was appropriate in

light of the evidence. Erickson's offenses carried the

possibility of a sentence of confinement for life

without the possibility of parole. Manual for

Courts-Martial, United States pt. 1V, para 45.e.(1)

(2002 ed.); Rule for Courts-Martial (R.C.M.)

1003(b)(7). His adjudged sentence of confinement

for life with eligibility for parole is therefore a

lower sentence than he could have received.

R.C.M. 1001 allows the military judge to

consider Erickson'’s admitted conduct with his

children as well as the negative and continuing

impact of that conduct as an aggravating factor. The

sentence adjudged must be based on all relevant

sentencing factors. R.C.M. 1001(b)(4); United

States v. Holt, 33 M.J. 400, 408 (C.M.A. 1991). The

evidence revealed not only that Erickson had

sexually abused his two daughters over a sustained

period, but that he manipulated them into believing

13a

that the conduct was appropriate. He told them that

if they revealed what he had done to them he would

leave them and go to jail. As a consequence both

girls lied to protect the very person abusing them.

Erickson's abuse has left his children

emotionally scarred. His son provided testimony as

to the impact of his father's abuse. His older

daughter stated that she felt immense guilt,

confusion, and fear about her ability to lead a

normal life in the future. Perhaps the most tragic

consequence of Erickson's conduct is that the

younger daughter was so influenced by her father

that she continued to defend him through the time

of trial.’ The clinical psychologist who was treating

Erickson's son and younger daughter at the time of

trial testified as to the lasting negative impact of

Erickson's actions on both these children and the

extended treatment they would require.

FOOTNOTES

3. In a Stipulation of Expected Testimony, the

younger daughter stated: None of the things that

happened between me and Dad would matter if no

one else Knew about it. | have never been scared of

Dad. I don’t like it that people only talk about the

bad things about Dad. He is a really good man, and

does lots of good things for me. | love him.

l4a

The offenses to which Erickson entered guilty

pleas and his admitted conduct in connection with

those offenses support a significant sentence. Added

to this is the compelling evidence of the lasting

negative impact of his offenses on his children.

Erickson's comparison of his sentence to those in

other cases involving child sexual abuse fails to

account for the egregious record before us and

therefore does not establish an "obvious

miscarriage{] of justice or abuse[] of discretion.”

United States v. Lacv, 50 M.J. 286, 288 (C.A.A.F.

1999) (quoting United States v. Dukes, 5 M.J. 71,

73 (C.M.A. 1978)). We find that the weight of

evidence clearly supports the Court of Criminal

Appeals’ determination that Erickson would have

received the same sentence irrespective of trial

counsel's improper comments.

Having reviewed the Fletcher factors, we

conclude that there was no material prejudice to

Erickson's substantial rights and therefore no plain

error.

DECISION

The decision of the United States Air Force Court

of Criminal Appeals is affirmed.

CONCUR BY: STUCKY

l5a

STUCKY, Judge, with whom BAKER, Judge, joins

(concurring):

| agree with the majority's conclusion that the

military judge did not commit plain error, but write

separately because the Court's reliance on the

balancing test in United States v. Fletcher, 62 M.J.

175, 184 (C.A.A.F. 2005) appears misplaced in a

judge-alone trial such as this.

In Fletcher, we appropriately found that

determining the existence of prejudice caused by

trial counsel's improper comments made before a

court-martial including members depends on

balancing the severity of counsel's misconduct

against the military judge's curative measures and

the weight of the evidence supporting conviction.

See id. In other words, the more improper the

argument, the greater the counterweight of curative

measures and the weight of the evidence must be to

overcome any potential prejudice.

In a judge-alone case like this one, curative

measures are superfluous because the military judge

is presumed to know and apply the law correctly.

United States v. Rodriguez, 60 MJ. 87, 90

(C.A.A.F. 2004). The facts of this case are

fortuitous in that the improper conduct is balanced

by overwhelming evidence supporting conviction.

As such, curative measures are unnecessary under

16a

the Fletcher rubric. However, when this Court

considers a future case in which trial counsel's

egregious conduct is balanced against evidence of

guilt of less than overwhelming weight, a Fletcher

analysis would seem to require the military judge in

that case to impose significant curative measures on

himself to counterbalance the improper argument.

This could not only lead to an absurd result, but also

would contradict the principle that the military

judge is presumed to know and apply the law

correctly.

As an alternative to the Court's Fletcher

analysis, | would have reviewed the record for any

evidence of prejudice sufficient to rebut the

presumption that the military judge knew and

applied the law correctly. Seeing no such evidence,

i concur with my colleagues that there was no

material prejudice to Appellant's rights and,

therefore, no plain error.

17a

Appendix B

UNITED STATES AIR FORCE COURT OF

CRIMINAL APPEALS

UNITED STATES

v.

Staff Sergeant KELLY S. EkKICKSON

United States Air Force

ACM 35495

63 M.J. 504

28 April 2006

Sentence adjudged 31 October 2002 by

GCM convened at McChord Air Force Base,

Washington. Military Judge: Rodger A.

Drew (sitting alone).

Approved sentence: Dishonorable discharge,

confinement for life with the eligibility for

parole, and reduction to E-1.

18a

Appellate Counsel for Appellant: Joseph

Kastl, Esq. (argued), Colonel Beverly B.

Knott, Colonel Carlos L. McDade, Major

Terry L. McElyea, Major Sandra K.

Whittington, Major L. Martin Powell, and

Major David P. Bennett. ,

Appellate Counsel for the United States: ‘

Captain Kimani S. Eason (argued), Colonel

LeEllen Coacher, Lieutenant Colonel Gary

F. Spencer, Lieutenant Colonel Robert V.

Combs, Major Shannon J. Kennedy, Major

Michelle M. McCluer, Major Carrie E.

Wolf, and Jesse Coleman (legal intern).

Before

ORR, JOHNSON, and FINCHER

Appellate Military Judges

OPINION OF THE COURT

This opinion is subject to editorial correction before

final publication.

ORR, Senior Judge:

The appellant was tried at McChord Air Force

Base (AFB), Washington, by a military judge sitting

as a general court-martial. In accordance with his

pleas, the military judge found the appellant guilty

19a

of one specification of violating a lawful order, two

specifications of raping a female under the age of

12 years, one specification of sodomy with a female

under the age of 12 years, two specifications of

committing an indecent act upon a female under the

age of 16, three specifications of taking indecent

liberties with a female under the age of 16, and one

specification of communicating indecent language

to a female under the age of 16, in violation of

Articles 92, 120, 125, and 134, UCMJ, 10 U.S.C. §§

892, 920, 925, 934. Additionally, the appellant pled

not guilty to one specification of perjury, in

violation of Article 134, UCMJ, 10 U.S.C. § 934.

The appellant was found not guilty of perjury, but

guilty of obstruction of justice. The military judge

sentenced the appellant to a dishonorable discharge,

confinement for life with the possibility of parole,

and reduction to E-l. The convening authority

approved the sentence as adjudged.

The case is before this Court for review under

Article 66, UCMJ, 10 U.S.C. § 866. The appellant

initially asserted four errors for our consideration: (1)

Whether his sentence is inappropriately severe; (2)

Whether he received ineffective assistance of counsel

because his trial defense counsel erroneously advised

him that he would be eligible for parole in 10 years so

he rejected a pretrial agreement (PTA) that would

have limited his confinement to 38 years; (3) Whether

20a

the military judge erred by admitting uncharged

misconduct; and (4) Whether trial counsel improperly

compared him to Osama Bin Laden, Adolph Hitler,

and the Devil during his sentencing argument. In a

supplemental filing, the appellant raised four

additional errors: (1) Whether his pleas were

improvident because of his mental and emotional

state at trial; (2) Whether the court-martial lacked

jurisdiction to try him because Article 3(a), UCM,

10 U.S.C. § 803({a), is unconstitutional as applied to

him; (3) Whether his plea to Charge | and its

Specification was improvident; and (4) Whether his

plea to Charge IV, Specification 5 was improvident. *

On 14 February 2006, we heard oral argument in this

case.

Background

On 31 January 2002, the appellant went to his

church bishop for counseling. During the counseling

session the appellant told the bishop that he had done

something wrong in the past with his daughter. The

bishop encouraged the appellant to reveal these

wrongs to his wife as part of his repentance process.

After the appellant confided in his wife that he had

molested their daughter, he asked her for some time

to turn himself in. After talking to several of her

friends, she gave him an ultimatum. Specifically, if

‘ All four supplemental issues are raised pursuant to United

States v. Grostefon, 12 M.J. 431 ¢C.M.A. 1982).

21a

the appellant did not report himself to the authorities

by the following Monday, 4 February 2002, she

would. Her primary concern was that she did not

want to risk losing her children because she did not

turn the appellant in. She then took their ten-year-old

daughter, BE, out to dinner and asked her whether her

father had done anything wrong with her. BE

disclosed that she had engaged in sexual intercourse

and oral sodomy with her father. Additionally, she

stated that her father had used sex toys on her, made

her watch pornographic movies, and tried to get her

to have sex with the neighbor’s dog.

On 4 February 2002, the appellant told his

commander, after mghts advisement, that he had

started sexually molesting his daughter a few years

before. On 9 February 2002, agents from the Air

Force Office of Special Investigations (AFOSI)

interviewed BE. She said that she started having

sexual intercourse with her father when she was four

years old, and that her father fondled or had sexual

intercourse with her almost every day since then,

except on Sundays. She also described occasions

when she showered with her father, engaged in oral

and anal sodomy with him, and_ watched

pornographic movies with the appellant.

Additionally, BE revealed she lied at her father’s

previous court-martial involving indecent acts and

indecent liberties with her then ten-year-old frend,

22a

because her father discouraged her from telling the

truth. She went on to talk about a phone conversation

she had with her father during which he asked her to

rub her private parts. The appellant also took nude

photographs of BE during the 2001 Christmas break.

Lastly, BE told the investigators that her father sat her

atop her nude |-year-old brother, and, encouraged her

to have sex with a dog and with her 12-year-old

brother, JE.

On 20 March 2002, AFOSI agents interviewed

AE, the appellant’s daughter from a_ previous

marriage. AE told them that the appellant inserted his

fingers into her vagina when she was nine years old

and masturbated in her presence. When she was ten

years old, he had sexual intercourse with her. He also

placed his hands near her crotch during a game called

“Chicken.”

Ineffective Assistance of Counsel

The appellant believes he received ineffective

assistance of counsel because his trial defense

counsel misinformed him about the minimum time

that he would have to serve in confinement to be

* From the record, it appears that “Chicken” is played when

one person starts moving their hand up another person's leg,

and when that person fecls uncomfortable with where the

other person's hand ts at. they shout “chicken.”

23a

eligible for parole. Specifically, he asserts that his

trial defense counsel told him he would be eligible

for parole after serving 10 years’ of confinement if

he received a sentence that included confinement

for life. Additionally, he claims his counsel told

him he would also be eligible for parole in 10 years

if he received any confinement greater than 30

years. Based on his understanding of his potential

parole cligibility, he decided not to accept an offer

for a PTA limiting his confinement to 38 years

because he saw no practical benefit. However, once

the appellant entered confinement, he discovered

that he would not be eligible for parole until he had

served at least 20 years of his sentence. See

Department of Defense Instruction 1325.7,

Administration of Military Correctional Facilities

and Clemency and Parole Authority, 4 6.17.1.2.3

(17 Jul 2001). He avers that if his trial defense

counsel had given him accurate information, he

would have opted to accept the PTA. Based on his

belief that he received erroneous advice, he asks

this Court to reduce his sentence to include no more

than 38 years’ of confinement.

Claims of ineffective assistance of counsel are

reviewed de novo. United States v. Wiley, 47 M.J.

158, 159 (C.A.A.F. 1997). To prevail on a claim of

ineffective assistance of counsel, the appellant must

show (1) that counsel's performance was deficient;

24a

and (2) that counsel’s deficient performance

resulted in prejudice. Strickland v. Washington,

466 U.S. 668, 687 (1984). The deficiency prong of

Strickland requires that the appellant show

counsel’s performance fell below an “objective

standard of reasonableness,” according to the

prevailing standards of the profession. Id. at 688.

There is a “strong presumption” that counsel was

competent. Id. at 689. The prejudice prong

requires that the appellant show a “reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different.” Id. at 694.

Although the appellant claims his trial defense

counsel gave him erroneous advice concerning the

earliest date he could be considered for parole, his

trial defense counsel disputes this assertion. In an

affidavit filed with this Court, the defense counsel

who was primarily responsible for preparing the

sentencing portion of the case asserts that she never

told the appellant there was no “practical difference,

based on parole between a sentence of life

confinement and a sentence of 38 years’

confinement.” After considering the factual

allegations in the appellant’s affidavit, the affidavit

from his defense counsel, and the record as a whole,

we find no reason to order a post-trial factfinding

hearing pursuant to United States v. DuBay, 37

25a

C.M.R. 411, 413 (C.M.A. 1967), to resolve any

factual disputes. See United States v. Ginn, 47 M.J.

236, 248 (C.A.A.F. 1997).

Arguably, there is some dispute on the advice the

appellant received about his earliest parole eligibility

date, however, his counsel advised him to accept the

PTA limiting confinement to 38 years on more than

one occasion. Regardless of this advice, the appellant

chose to reject the PTA limiting confinement to 38

years. Instead, he chose to offer and accept a PTA

without a limitation on the amount of confinement

hoping to receive a lower sentence from the military

judge and leniency from the convening authority. As

a result, the appellant has not convinced us that his

decision to disregard his trial defense counsel’s

advice was based solely on the earliest possible

parole eligibility date. Even if we assume that his

trial defense counsel provided inaccurate information,

their overall recommendation to accept the PTA was

correct. Therefore, when viewing the possibility that

the appellant received incorrect advice in the context

of their entire representation, we are not convinced

that he received ineffective assistance. See

Kimmelman v. Mormson, 477 U.S. 365, 383-84

(1986).

Uncharged Misconduct

Next, the appellant argues that the military

judge abused his discretion by denying a defense

26a

motion to exclude portions of the stipulated

testimony of his two daughters, AE and BE. The

trial defense counsel argued that portions of the

stipulated testimony should have been excluded

because many of the incidents took place outside

the charged timeframe or when the appellant was

not subject to court-martial jurisdiction. The

appellant also contends that portions of the

stipulated testimony were inadmissible because his

children described sexual activity that he was either

not present for, or did not initiate. Although the

appellant is not contesting the veracity of his

children or the accuracy of their stipulated

testimony, he asserts that the probative value of this

evidence is substantially outweighed by the danger

of unfair prejudice. See Mil. R. Evid. 403. Asa

result, the appellant asks this Court to set aside the

sentence and order a rehearing or otherwise grant

other meaningful relief.

The appellant’s trial defense counsel objected to

all or portions of 15 paragraphs of AE’s stipulated

testimony because they contained references that

the appellant sexually molested her prior to the rape

alleged in Charge II, Specification 1. Specifically,

AE stated that the appellant French-kissed and

fondled her at her grandmother’s house. She also

described how her father molested her in a motel

swimming pool in her brother's presence and

27a

ejaculated on her leg later that night inside the

mote! room while she was sleeping with him. She

also stated that the appellant fondled her “a bunch

of times” and attempted to have her perform oral

sex upon him.

Additionally, the appellant’s trial defense

counsel objected to all or portions of seven

paragraphs of BE’s_ stipulation of expected

testimony. The primary focus of their objection

was to paragraph 21, which reads as follows:

One time, the summer before Dad

started the Air Force, he called me

into the computer room to look at

something. This was after he was

out of the Army. He showed me a

picture of a woman having sex with

a dog. He asked me if I would do

that with Sammie. I said OK.

Sammie was a dog we _ were

watching for some friends. Dad took

me and Sammie into the basement. |

took off my pants and underwear. |

got down on my hands and knees.

Dad put Sammie behind me on my

back. Sammie’s nails were

scratching up my back and it hurt. |

stood up so Sammie could not be on

my back anymore. I said that |

28a

didn’t want to do that anymore and

Dad said OK and we went upstairs.

The only thing that happened

between me and Sammie was his

nails scratched my back.

After hearing argument on the defense motion

from counsel for both sides, the military judge

found that the contested portions of the statements

appeared to be either earlier than the charged

timeframe or during the time after the appellant left

the Army and before he joined the Air Force. As

such, he said he would not sentence him for these

offenses. Nevertheless, the military judge ruled that

the lack of jurisdiction did not make it improper for

him to consider the offenses as aggravation

evidence because they were part of a “continuous

course of conduct involving the same victim and the

same types of misconduct.” The military judge

acknowledged that although the misconduct

described in paragraph 21 of BE’s stipulation of

expected testimony was “different in some unique

aspects from the charged misconduct,” it was still a

matter of sexual misconduct upon the same victim.

Having determined that he could properly

consider the uncharged misconduct, the military

judge performed a Mil. R. Evid. 403 balancing test.

Our review of a military judge’s decision to admit

evidence is limited to whether he has abused his

29a

discretion. United States v. Dorsey, 38 M.J. 244,

246 (C.M.A. 1993). To find an abuse of discretion,

we must be convinced that the military judge's

decision was “clearly untenable” and deprived the

accused of a “substantial right such as to amount to

a denial of justice.” United States v. Travers, 25

M.J. 61, 62 (C.M.A. 1987) (quoting Guggenmos v.

Guggenmos, 359 N.W.2d 87, 90 (1984).

In sentencing, “the trial counsel may present

evidence as to any aggravating circumstances directly

relating to or resulting from the offenses of which the

accused has been found guilty.” Rule for Courts-

Martial (R.C.M.) 1001(b)(4). Evidence of

aggravating circumstances qualifying for admission

during presentencing must also pass the evidentiary

rule requiring that the probative value of evidence

outweigh its prejudicial effect. The military judge

has wide discretion in applying this rule. United

States v. Bailey, 55 M.J. 38, 41 (C.A.A.F. 2001).

The military judge, in allowing the stipulated

testimony, stated:

I believe that all this evidence is

highly probative. It is certainly

extremely prejudicial, but it is not

unfairly prejudicial. That's the key.

Indeed its prejudicial impact ties

directly with its probative value. On

the other hand, the fact that this is a

30a

judge alone trial is something that |

am mindful of in that I can certainly

put this evidence in its proper

context, and without instructing

myself, certainly will not sentence

the accused for offenses of which he

was not found guilty in this court-

martial.

The military judge concluded his Mil. R. Evid.

403 balancing test by stating that the events

described occurred and that the evidence was not

unduly cumulative, a waste of time, or confusing.

We agree.

We find that the evidence was clearly relevant,

directly related to, and resulted from the appellant's

acts. See R.C.M. 1001(b)(4). Furthermore, the

probative value of the stipulated expected testimony

was not substantially outweighed by undue

prejudice. See Mil. R. Evid. 403. We note that the

uncharged acts of misconduct were close in time to

the charged offenses and involved the same victims.

Additionally, this evidence illustrates a continuous

course of conduct and is admissible as aggravation

evidence during presentencing to show victim

impact. See United States v. Nourse, 55 M.J. 229,

232 (C.A.A.F. 2001). The military judge expressly

performed the balancing test of Mil. R. Evid. 403

and said he was confident he could avoid confusion

3la

of the issues and would not be misled as to the

appropriate weight to give the evidence. “It is

undisputed that military judges are presumed to

know the law and to follow it, absent clear evidence

to the contrary.” United States v. Mason, 45 M.J.

483, 484 (C.A.A.F. 1997) (citing United States v.

Prevatte, 40 M.J. 396, 398 (C.M.A. 1994)). See

also United States v. Hill, 62 M.J. 271, 276

(C.A.A.F, 2006). “When a judge indicates that he

will not consider inadmissible evidence . . . we

presume he will do as he says.” United States v.

Davis, 44 M.J. 13, 17.

In the instant case, the military judge correctly

stated the law and expressed his intent to follow it.

We find nothing that causes this Court to believe

otherwise. The military judge did not abuse his

discretion in admitting this evidence.

Improper Argument of Counsel

Next, the appellant asserts that the trial counsel

improperly inflamed the passions and appealed to

potential religious biases of the military judge

during his argument in the sentencing portion of the

trial and asks this Court to set aside the sentence

and order a rehearing on sentence or approve a

period of confinement no greater than 40 years.

Specifically, the appellant contests the following

portions of the trial counsel's argument:

32a

What is evil? It’s a dramatic

question. It is not a _ concrete

question and it defies a scientific

answer. It likely means something

different to virtually everyone.

History, current events, are replete

with examples of people who have

been argued who- are _ the

embodiments of evil, Adolph Hitler,

Saddam Hussein, Osama bin Laden.

Men who have killed innocent

women and children, poisoned the

world with their rage and_ their

fanaticism. Well, as awful as those

men and those actions are there is an

advantage, frankly, to evil that

eventually becomes so open and

notorious. You can see it coming.

You can prepare your defenses. It

has been quipped countless times

that the greatest trick the devil ever

performed was convincing the world

that he didn’t exist. The message

there is that the evil that you can’t

see coming, the evil that is hidden,

that is so insidious. Evil can hide the

pitchfork, hide the hors, hide the

tail. It can hide behind a facade of

respectability, a fagade of caring.

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Even a facade of, well, this accused.

[The appellant], sitting here in this

courtroom, right here, right now, is

evil. .. . This demon so masterfully

manipulated his victims for so long a

period of time, the little girls still

don’t see the evil. . . . Simply put, —

this accused, is the boogeyman. .

He is evil. The place for evil, of

course, is hell. His children should

not suffer him a single day of

freedom before he goes there [Hell].

Society should not suffer him a

single day of freedom before he goes

there.

The standard of review for an improper

argument depends on the content of the argument

and whether the defense counsel objected to the

argument. The legal test for improper argument is

whether it was error 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). If the defense counsel fails to object or

request a curative instruction, the court will grant

relief only if the improper argument amounts to

plain error. United States v. Gilley, 56 M.J. 113,

123 (C.A.A.F. 2001); United States v. Boyd, 55

M.J. 217, 222 (C.A.A.F. 2001); United States v.

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Powell, 49 M.J. 460, 464 (C.A.A.F. 1998); United

States v. Fisher, 21 M.J. 327, 328 (C.M.A. 1986).

See also R.C.M. 919(c), 1001(g). In the case sub

judice, the trial counsel clearly expressed highly

inflammatory opinions of the appellant in his

sentencing argument. However, the trial defense

counsel did not object to the improper argument and

thus we apply a plain error analysis to determine

whether relief should be granted.

The appellant argues that it was plain error for

the trial counsel to refer to Adolph Hitler, Saddam

Hussein, and Osama bin Laden, because their

names were used only for their sensational value

and to inflame the passions of the military judge.

The government maintains that such matters were

permissible because the references did not call for a

particular result. The government also asserts that

the appellant “opened the door to comments about

religion” in his unsworn statement, when he said, “‘I

grew up with a religious background.” We find that

the trial counsel’s comparison of the appellant to

these public and religious figures was error because

it was designed to improperly influence the military

judge’s deliberations. See United States v. Clifton,

15 M.J. 26, 30 (C.M.A. 1983). Although references

to “contemporary history” or other matters of

common knowledge may be = allowed, the

specificity, detail, and provocation of his comments

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went well beyond the norm and were outside the

bounds of fair comment. See United States v.

Barrazamartinez, 58 M.J. 173, 175 (C.A.A.F. 2003).

Moreover, this error was plain and obvious.

When the trial counsel compared the appellant to

these religious and public figures, he was inviting

the military judge to increase the appellant’s

punishment based solely on an emotional basis.

These arguments were clearly improper and should

have been prohibited or stricken by the military

judge. See Clifton, 15 M.J. at 30. To summarize,

we find error in the trial counsel’s open criticism

and personal attack upon the appellant.

Because there was no objection to these

plain and obvious errors, we must next determine

whether they resulted in material prejudice to a

substantial right of the appellant. Powell, 49 M.J. at

464-65. As stated earlier, this was a military judge

alone trial. After reviewing the improper comments

from the trial counsel’s argument in the context that

they were presented, we find that they did not

materially prejudice the substantial rights of the

appellant. See Baer, 53 M.J. at 237. Even though

the military judge should not have heard the

improper comments by the trial counsel, we found

“no clear evidence” that he improperly considered

them. See Mason, 45 M.J. at 484. Additionally, the

misconduct in this case 1s so severe that we are

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confident the military judge would have imposed

the same sentence without considering the

comments. See United States v. Fletcher, 62 M.J.

175, 184 (C.A.A.F. 2005).

Jurisdiction

Next, the appellant claims that the court-martial

lacked jurisdiction to try him for the majority of the

charged offenses because Article 3(a), UCMJ, is

unconstitutional. Article 3(a), UCMJ, states:

a person who is in a status in which

the person is subject to this chapter

and who committed an offense

against this chapter while formerly in

a status in which the person was

subject to this chapter is not relieved

from amenability to the jurisdiction

of this chapter for that offense by

reason of a termination of that

person’s former status.

The appellant enlisted in the United States

Army on 22 January 1993. He served in the Army

until 14 June 2001, when he received an honorable

discharge. On 29 August 2001, the appellant

enlisted in the United States Air Force for a term of

four years.

Shortly after the appellant entered his pleas, the

military judge sua sponte questioned the trial

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counsel about their position regarding the

appellant’s “break in service and how it may affect

the very specifications that go back beyond

September of -- excuse me, August of 2001.” The

trial counsel’s position was

that during all the relevant charged

time frames the accused was a

member of the United States Army

and that the break in service does not

in any way vitiate or affect the

United States’ jurisdiction over the

charged offenses. At all the relevant

charged time frames the accused was

a member of the United States Army

or the United States Air Force and

was at all relevant times subject to

the Uniform Code of Military

Justice.

The defense concurred with this position with

regard to the charged offenses. The military judge

admitted that the “jurisdictional impact of a break in

service” and a change in branch of service was an

issue that he had not considered.

Although he could not find any cases directly on

point, the military judge concluded:

Article 3(a), Uniform Code of

Military Justice, which the current

version became effective on 23

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October 1992, clearly states that

despite a break in service, that when

somebody reenters military service

and | don’t believe it makes any

difference which branch it may be,

whether they are the same, different,

or what have you, that once an

individual comes back on active duty

then for offenses that occurred

during a previous service over which

the military courts had subject matter

jurisdiction, given the fact that the

court’s [sic] currently have in

personam jurisdiction by virtue of

the fact that the individual is

currently on active duty, that Article

3(a) would change a previous state of

the law to indicate that the court

retains jurisdiction over the offenses

occurring in the previous enlistment.

Trial counsel and defense counsel both

concurred with the military judge’s understanding

of Article 3(a), UCMJ, and its application to the

appellant’s offenses. As a result, the military judge

continued his providence inquiry with the appellant.

During oral argument before this Court, the

appellant's counsel conceded that the trial

participants correctly interpreted Article 3(a),

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UCMJ. He acknowledged that the Article, as

written, conferred court-martial jurisdiction over the

appellant and the offenses the appellant committed

while serving in the Army. Nevertheless, the

appellant asks this Court to set aside the findings for

the offenses he committed while serving in the

Army because Article 3(a), UCMJ, is

unconstitutional as applied to him.

The appellant cites extensively to United States

ex rel. Toth v. Quarles, 350 U.S. I1 (1955), to

support his argument. In Toth, the Supreme Court

“restrict[ed] court-martial jurisdiction to persons

who are actually members or part of the armed

forces” and held that it could not “be extended to

civilian ex-soldiers who had severed all relationship

with the military.” Id. at 14. The appellant argues

that he could not constitutionally be subjected to a

trial by court-martial for offenses he committed

while he was in the Army because jurisdiction

terminated when he received a valid discharge from

the Army. He relies on R.C.M. 202(a), Discussion

(2), which provides: “In general, a person becomes

subject to court-martial jurisdiction upon enlistment

in or induction into the armed forces . . . [and

jurisdiction] ordinarily ends on delivery of a

discharge certificate or its equivalent to the person

concerned issued pursuant to competent orders.”

40a

The crux of the appellant’s argument is that

once he received his valid discharge from the Army,

he became a civilian. As a result, his valid military

discharge from the Army terminated jurisdiction

over him and the offenses he committed while

serving in the Army. He contends that once

military jurisdiction is properly terminated, it can

never constitutionally be revived. Although Article

3(a), UCMSJ, clearly authorizes revived jurisdiction,

the appellant contends that such authorization is

unconstitutional because it is inconsistent with the

Supreme Court’s decision in Toth. Additionally, he

asserts, as Toth stated, “any expansion of court-

martial jurisdiction like that in the 1950 Act[, 50

U.S.C. § 553,] necessarily encroaches on the

jurisdiction of federal courts set up under Article Ill

of the Constitution where persons on trial are

surrounded with more constitutional safeguards

than in military tribunals.” Id. at 15. Because

civilian courts are open, they are the proper place to

try the appellant for the offenses he committed

while serving in the Army. We disagree.

To distinguish Toth from the instant case, Toth

had severed all relationship with the military when

he was arrested for the crimes he committed while

in the military. Conversely, the appellant in this

case committed the charged offenses while in the

Army and he voluntarily returned to military control

4la

by enlisting in the Air Force. Moreover, the

Supreme Court found the 1950 version of Article

3(a), UCMJ, unconstitutional, whereas, Article 3(a),

UCMJ, enacted in 1986, and amended in 1992,

confers jurisdiction over the appellant in this case.

See R.C.M. 202(a), Discussion (2)(B)(ii). Thus,

Toth is inapplicable here. Without question the

appellant was validly discharged from the Army;

but, as an Air Force member on active duty at the

time of his trial, he was properly subject to court-

martial jurisdiction under the UCMJ. Because the

charged offenses occurred after 23 October 1992,

the appellant could be tried for offenses he

committed during the earlier term of service in the

Army. See id.

The appellant also contends that Willenbring

v. Neurauter, 48 M.J. 152 (C.A.A.F. 1998), supports

his constitutional challenge. In that case, our

superior court ruled that the military could assert

court-martial jurisdiction over a reservist who

committed misconduct while a member of the

regular component. Id. at 158. The accused in

Willenbring was discharged from the regular

component of the Army and enlisted in the reserves

the day atter. While as a reservist, he was charged

with rape, allegedly committed while he was

serving as a member of the regular component.

Pursuant to Article 2(d), UCMJ., 10 U.S.C. § 802(d),

42a

he was involuntarily recalled to active duty. Id. at

154.

The appellant is correct in asserting that the

holding in Willenbring precludes jurisdiction ove, a

former service member who has completely severed

all relationships with the military as a result of a

valid discharge. If the appellant had not reenlisted

in the Air Force, the military would not have

jurisdiction to try him by court-martial for the

offenses he committed in the Army. However, our

superior court in Willenbring, 48 M.J. at 158,

reaffirmed Article 3(a), UCMJ, and the concept of

revived jurisdiction when it held: “[I]f a person is

subject to military jurisdiction at the time of the trial

and was subject to military jurisdiction at the time

of the offense, that person may be tried [by court-

martial] for offenses occurring during a prior period

of military service.” Because of the 1992

amendment to Article 3(a), UCMJ, the military

retains jurisdiction for any offense committed in a

prior enlistment subject to the statute of limitations.

Additionally, court-martial jurisdiction is not

limited to military offenses so the fact that a civilian

court may have jurisdiction is not a bar to

prosecution under the UCMJ. R.C.M. 201(d)(2).

Therefore, once the appellant enlisted in the Air

Force, he became subject to prosecution for all the

offenses he committed while on active duty that

43a

were within the statute of limitations. See Article

3(a), UCM].

The quality and fundamental fairness of the

military justice system have improved significantly

since the 1955 Supreme Court decision in Toth.

Many of the concerns that the Supreme Court

expressed in Toth have been corrected by changes

to the UCMJ and the Military Rules of Evidence.

In fact, the Supreme Court's decision in Solorio v.

United States, 483 U.S. 435 (1987), to eliminate the

service-connection requirement for subject-matter

jurisdiction, is an indication of the Court’s increased

confidence in the system. The Congressional intent

expressed in Article 3(a), UCMJ, to expand military

jurisdiction to include all offenses committed in a

prior enlistment, is clear. Additionally, our superior

court has determined that the Constitution does not

preclude a trial by court-martial after a valid

discharge, as long as the individual is a member of

the armed forces or in a status subject to military

law at the time jurisdiction is_ exercised.

Willenbring, 48 M.J. at 158. Moreover, the facts of

this case give us no reason to conclude that Article

3(a), UCMJ, is unconstitutional as applied to the

appellant.

Sentence Appropriateness

The appellant claims his sentence is

inappropriately severe. Specifically, he

44a

acknowledges that his actions warrant lengthy

confinement, but he gives several reasons why he

believes that confinement for life is far too severe

based upon the facts of this case. First, he contends

that we should consider the fact that he voluntarily

turned himself in. Next, he avers that he protected

his “children from further psychological harm by

stipulating to their testimony” so they would not

have to testify during an Article 32, UCMJ,°

investigation or in court. He also provided evidence

that he was sexually molested for several years as a

young child. Most importantly, the forensic

psychologist that testified on the appellant’s behalf

at his court-martial opined that the appellant has

very good rehabilitation potential and has the ability

to become a productive member of society “without

any significant likelihood” that he will re-offend in

the future. For these reasons, coupled with his

assertion that this Court has never affirmed a case

where a child sex offender was sentenced to

confinement for life, the appellant asks this Court to

reduce the amount of his confinement to no more

than 38 years, which was the final offer from the

government in pretrial negotiations.

This Court may only affirm those findings and

sentences we find are correct in law and fact and

determine, on the basis of the entire record, should

“10 U.S.C. § 832.

45a

be approved. Article 66(c), UCMJ. In determining

sentence appropriateness, we must exercise our

judicial powers to assure that justice is done and

that the accused receives the punishment he

deserves. Performing this function does not

authorize this Court to grant clemency. United

States v. Healy, 26 M.J. 394, 395-96 (C.M.A.

1988). The primary manner in which we discharge

this responsibility is to give individualized

consideration to an appellant on the basis of the

nature and seriousness of the offenses and the

character of appellant. United States v. Snelling, 14

M.J. 267, 268 (C.M.A. 1982).

In the instant case, the appellant was

convicted of offenses that involved five different

children. First, he raped his daughter, AE, when

she was ten years old. He then repeatedly raped and

sodomized his other daughter, BE, almost daily

from the time she was four years old. Additionally,

he committed indecent acts, used indecent language,

and took indecent liberties with her over a period of

several years. According to BE’s stipulated

testimony, her two brothers were sometimes in the

room when the appellant touched her private parts.

She recalled one occasion when her father asked her

to take off her clothes and sit on top of her younger

brother. The appellant also pled guilty to

encouraging BE to put her hands down her older

46a

brother’s pants. Finally, his conviction for

obstruction of justice involved BE’s denial of the

appellant’s inappropriate activity with her and her

ten-year-old friend.

According to Dr. Thomas Coleman, a clinical

psychologist, BE and JE suffered behavioral and

emotional trauma as a result of their father’s sexual

abuse. He predicts they will struggle with

depression and have significant adjustment

problems throughout the rest of their lives. In her

stipulated testimony, AE expressed guilt and

remorse because of the appellant’s actions and

stated that she did not trust a lot of people. These

offenses also had a significant negative impact on

the appellant's former and present wives. They

both provided testimony describing their guilt and

self-doubt for not protecting their children from the

appellant.

Although the appellant had an excellent military

record, turned himself in, pled guilty, and stipulated

to the children’s testimony, the appellant committed

these offenses on almost a daily basis for several

years. Based on the serious nature of the

appellant's offenses and the number of victims in

this case, his sentence {ts not inappropriately severe.

See Healy, 26 M.J. at 39-96; Snelling, 14 M.J. at

268.

O#her Issues

47a

Finally, we considered the appellant’s remaining

assignments of error and find them to be without

merit. See United States v. Eberle, 44 M.J. 374,

375 (C.A.A.F. 1996); United States v. Jordan, 57

M.J. 236, 238-39 (C.A.A.F. 2002); United States v.

Matias, 25 M.J. 356, 361 (C.M.A. 1987).

Conclusion

The approved findings and sentence are correct

in law and fact, and no error prejudicial to the

substantial rights of the appellant occurred. Article

66(c), UCMJ; United States v. Reed, 54 M.J. 37, 41

(C.A.A.F. 2000). Accordingly, the findings and

sentence are

AFFIRMED.

Judge FINCHER participated in this decision prior

to his reassignment.

JOHNSON, Judge (concurring in the result):

I cannot concur with the majority as it relates to

the resolution of the third Issue; Whether the military

judge abused his discretion in considering, over

defense objection, sentencing evidence involving

uncharged misconduct. At issue ts the admission of a

portion of a stipulation of expected testimony of BE:

One time, the summer before Dad

started in the Air Force, he called me

48a

into the computer room to look at

something. This was after he was

out of the Army. He showed me a

picture of a woman having sex with

a dog. He asked me if I would do

that with Sammie. I said OK.

Sammie was a dog that we were

watching for some friends. Dad took

me and Sammie into the basement. |

took off my pants and underwear. |

got down on my hands and knees.

Dad put Sammie behind me and on

my back. Sammie’s nails were

scratching up my back and it hurt. |

stood up so Sammie could not be on

my back anymore. I said that |

didn’t want to do that anymore and

Dad said OK and we went upstairs.

The only thing that happened

between me and Sammie was his

nails scratched my back.

The military judge admitted the testimony and

addressed each of the stipulations of expected

testimony: “And again, I'd be a little bit concerned

if this was a members case, although | think that

with an appropriate instruction that could be

overcome given the amount of uncharged

misconduct. But, I can certainly put it into its

49a

proper context and believe that the probative value

of the victim impact is not substantially outweighed

by the undue prejudice or any of the other factors

listed in [Mil. R. Evid.] 403.” The military judge

overruled the defense counsel’s objection.

I cannot say the probative value of the

uncharged misconduct is not _ substantially

outweighed by the danger of unfair prejudice.

However, although | find it was error to consider

this evidence in aggravation, it was not prejudicial.

The test for prejudice is whether the sentence

adjudged was “no greater than that which would

have been imposed if the prejudicial error had not

been committed.” United States v. Kinman, 25 M.J.

99, 101 (C.M.A. 1987) (citing United States v.

Suzuki, 20 M.J. 248, 249 (C.M.A. 1985)). The

facts in this case are particularly egregious. The

majority opinion more than adequately describes the

heinous nature of this appellant’s crimes committed

against his minor children. Had the military judge

not admitted this uncharged misconduct, the

sentence adjudged would be “no greater than that

which would have been imposed if the prejudicial

error had not occurred.” See id.

OFFICIAL

50a

LOUIS T. FUSS, TSgt, USAF

Chief Court Administrator