UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
F.D. MITCHELL, K.J. BRUBAKER, M.C. HOLIFIELD
Appellate Military Judges
UNITED STATES OF AMERICA
v.
MICHAEL Z. PABELONA
CHIEF HOSPITAL CORPSMAN (E-7), U.S. NAVY
NMCCA 201400244
GENERAL COURT-MARTIAL
Sentence Adjudged: 14 February 2014.
Military Judge: CAPT J.K. Waits, JAGC, USN.
Convening Authority: Commander, Navy Region Europe, Africa,
Southwest Asia, Naples, Italy.
Staff Judge Advocate's Recommendation: CDR J.A. Link, JAGC,
USN.
For Appellant: Capt M. Brian Magee, USMC.
For Appellee: CDR James E. Carsten; LT James M. Belforti,
JAGC, USN.
15 October 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A general court-martial, consisting of members with
enlisted representation, convicted the appellant of signing a
document knowing the information contained therein to be false
and larceny, in violation of Articles 107 and 121, Uniform Code
of Military Justice, 10 U.S.C §§ 907 and 921. The members
sentenced the appellant to total forfeiture of pay and
allowances, a reduction to pay grade E-5, 60 days’ restriction,
confinement for 60 days, and a $60,000.00 fine that included an
enforcement provision of 16 additional months of contingent
confinement. The convening authority (CA) approved the adjudged
sentence. 1
On appeal, the appellant alleges four assignments of error:
(1) that plain error was committed when the trial counsel
engaged in prosecutorial misconduct and the trial defense
counsel did not object; (2) that the appellant was subjected to
a greater sentence than that awarded at trial as all of his pay
and allowances were continued to be withheld after his release
from the brig; (3) that said withholding of his pay was a
violation of the Fifth and Eighth Amendments of the
Constitution; and (4) that he was prejudiced by a comment made
by the military judge which caused the members to deliberate
less than three hours prior to a four day weekend. 2 After
reviewing the record of trial and the pleadings of the parties,
we determine the findings and approved sentence to be correct in
law and fact. We also find that no errors materially
prejudicial to the substantial rights of the appellant occurred.
Arts. 59 (a) and 66(c), UCMJ.
\
1
The Government contends that the court lacks jurisdiction as the appellant
was not awarded a punitive discharge and the CA approved only 8 months’
confinement. The CA took action on 5 June 2014 and approved the sentence as
adjudged. The appellant’s case was docketed with this court on 1 July 2014.
The CA subsequently executed supplemental court-martial orders on 23 and 25
July 2014, and 6 August 2014, ultimately attempting to reduce the additional
months of contingent confinement from 16 to six. While the Government argues
that through his supplemental court-martial orders the CA ultimately approved
only eight months’ confinement (to include the contingent confinement if the
fine was not paid), we find the three supplemental court-martial orders taken
after 1 July 2014 to be nullities as the case had already been docketed with
this court. See RULE FOR COURTS-MARTIAL 1107(f)(2), MANUAL FOR COURTS-MARTIAL, UNITED
STATES (2012 ed.) (allowing modifications of previous actions prior to
forwarding the record for review). See also the “Background” section under
the discussion of assignments of error II and III for further amplification
of the CA’s actions in this case.
2
This assignment of error is raised pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982). We have thoroughly considered this assignment of
error and find it to be without merit. United States v. Clifton, 35 M.J. 79,
83 (C.M.A. 1992).
2
Background
On 3 February 2011, the appellant married YN. After the
marriage, the appellant enrolled YN into the Defense Enrollment
Eligibility Reporting System and in May 2011 he requested and
received authorization to receive Basic Allowance for Housing
(BAH) at the “with dependents” rate. It was later determined
that this was a sham marriage as the appellant never intended to
establish a life with YN, but married her just to collect BAH at
the higher rate. The appellant received BAH at the with
dependents rate from May 2011 until April 2013.
Additional facts necessary to resolve the appellant’s
assignments of error are provided below.
Prosecutorial Misconduct
In his initial assignment of error, the appellant contends
that the trial counsel committed prosecutorial misconduct during
his closing and rebuttal arguments when he: (1) made disparaging
remarks about the appellant; and, (2) interjected his personal
opinions on the evidence adduced by both the Government and
defense.
Background
During closing argument prior to the members deliberating
on findings, the trial counsel, in arguing for a finding of
guilty on all charges and specifications, referred to the
appellant as a “liar” and said that the appellant “sleeps in a
bed of lies.” Record at 678. The trial counsel also, inter
alia, referred to the appellant as a “second rate con artist”
and “a manipulator and user.” Id. at 680, 710. See also
Appellant’s brief at 9-11. The trial counsel additionally
commented on the sufficiency of the Government’s evidence by
using words such as “clear” and “obvious” when describing the
evidence against the appellant. Id. at 672, 677, 682. Finally,
the appellant contends that the trial counsel interjected his
personal opinion on the defense’s evidence by calling the
appellant’s assertions “ridiculous” and stating that “[the trial
counsel] heard a lot of fanciful suggestions” and “a lot of
conjecture” and that “[he] didn’t hear reasonable doubts”. Id.
at 710. The defense did not object to the trial counsel’s
closing or rebuttal arguments.
3
Law
Prosecutorial misconduct occurs when a prosecutor
“‘oversteps 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. Fletcher,
62 M.J. 175, 178 (C.A.A.F. 2005) (quoting Berger v. United
States, 295 U.S. 78, 84 (1935)). “Prosecutorial misconduct can
be generally defined as action or inaction by a prosecutor in
violation of some legal norm or standard, e.g., a constitutional
provision, a statute, a Manual rule, or an applicable
professional ethics canon.” United States v. Meek, 44 M.J. 1, 5
(C.A.A.F. 1996) (citing Berger, 295 U.S. at 88). “[T]he
argument by a trial counsel must be viewed within the context of
the entire court-martial. The focus of our inquiry should not
be on words in isolation, but on the argument as ‘viewed in
context.’” United States v. Baer, 53 M.J. 235, 238 (C.A.A.F.
2000) (quoting United States v. Young, 470 U.S. 1, 16 (1985)).
The failure of the trial defense counsel to object to
improper argument by the trial counsel constitutes forfeiture of
the issue on appeal absent plain error. RULES FOR COURTS-MARTIAL
919(c) and 1001(g), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
To show plain error, the appellant must persuade this court
that: “‘(1) there was error; (2) the error was plain or obvious;
and (3) the error materially prejudiced a substantial right of
the accused.’” United States v. Tunstall, 72 M.J. 191, 193-94
(C.A.A.F. 2013) (quoting United States v. Girouard, 70 M.J. 5,
11 (C.A.A.F. 2011)). The plain error doctrine is “to be used
sparingly, solely in those circumstances in which a miscarriage
of justice would otherwise result.” United States v. Causey, 37
M.J. 308, 311 (C.M.A. 1993) (citations and internal quotation
marks omitted).
Analysis
1. Referring to the appellant as a liar/con artist
Calling the appellant a liar is a “dangerous practice”
which should be avoided. United States v. Clifton 15 M.J. 26,
30 n.5 (C.M.A. 1983). In the present case, the trial counsel
used the term “liar” or “lies” multiple times when referring to
the misconduct the appellant was accused of committing.
4
We first note that all of the charged offenses alleged
dishonest or deceitful conduct by the appellant. 3 In order to
establish a prima facie case against the appellant on these
charges, the trial counsel had to show that the appellant:
(1) conspired with another to commit a fraud upon the
United States;
(2) signed an official document knowing it to be
false;
(3) stole United States currency greater than
$500.00; and,
(4) impeded an investigation by instructing a
subordinate to lie to the Naval Criminal Investigative
Service agent investigating his misconduct.
As all of these offenses allege dishonesty and/or deceit by the
appellant. For the trial counsel to point out the appellant’s
dishonesty during closing arguments was hardly overly
inflammatory. We find that the trial counsel’s comments were
based on a fair reading of the record as it related to proof of
these charges, all involving deceit or dishonesty. We therefore
find that if the trial counsel’s comments were error, they do
not rise to level of plain error.
2. Interjecting personal opinions
It is improper for a trial counsel to interject himself or
herself into the proceedings by expressing a personal belief or
opinion as such is “a form of unsworn, unchecked testimony and
tend[s] to exploit the influence of his office and undermine the
objective detachment which should separate a lawyer from the
cause for which he argues.” United States v. Horn, 9 M.J. 429,
430 (C.M.A. 1980). One of the ways a trial counsel might
violate the rule against expressing personal beliefs or opinion
is “by offering substantive commentary on the truth or falsity
of the testimony and evidence.” United States v. Fletcher 62
M.J. 175, 180 (C.A.A.F. 2005) (citing Young, 470 U.S. at 8).
3
In addition to the charges of which he was found guilty, the appellant was
charged with a violation of Article 81, conspiracy to commit fraud, and
Article 134, impeding an investigation by directing a subordinate to lie to
the Naval Criminal Investigative Service agent investigating the appellant’s
misconduct. The members found the appellant not guilty of these offenses.
5
The appellant cites to the Court of Appeals for the Armed
Forces’s (CAAF) decision in Fletcher to argue that counsel’s
comments were plain error. In Fletcher the trial counsel
repeatedly vouched for the credibility of the Government’s
witnesses and evidence; interjected her personal views of the
evidence; and told the members the accused was “guilty.” The
trial counsel in Fletcher also made references to the
Government’s evidence as “‘unassailable,’ ‘fabulous,’ and
‘clear’” and described the defense’s evidence as
“‘unbelievable,’ ‘ridiculous’ and ‘phony.’” Id. at 180. The
CAAF found plain error concluding that the trial counsel
“repeatedly inserted herself into the proceedings by using the
pronouns ‘I’ and ‘we.’” Id. at 181. In doing so “[s]he put the
authority of the Government and her office behind the
prosecution’s witnesses . . . .” Id.
In the appellant’s case, assuming arguendo trial counsel’s
comments constituted error, we find no prejudice. In assessing
whether there was prejudice from prosecutorial misconduct, we
examine three factors: (1) the severity of the misconduct; (2)
curative measures taken; and (3) the strength of the
Government’s case. Id. at 184.
Unlike in Fletcher, here the severity was low. In a
lengthy four day trial, the appellant points to relatively
isolated comments covering a small fraction of the trial and was
limited to the trial counsel’s summation and rebuttal arguments.
The members, who deliberated for almost four hours, made
findings that demonstrate their ability to make an independent
assessment of the evidence and reach their own conclusions.
There is no evidence of the trial counsel failing to abide by
the military judge’s rulings. Although the instruction came
prior to argument by counsel, the military judge instructed the
members that counsel’s arguments are not evidence. The
Government’s case for those offenses resulting in a conviction
was reasonably strong. Finally, we note that the members
acquitted the appellant of two of the four charges he faced at
court-martial. Given all this, we are confident in the members’
ability to adhere to the military judge’s instructions and put
trial counsel’s comments in their proper context. Said another
way, on this record, we have no cause to question the fairness
or integrity of the trial and are confident that the members
convicted the appellant on the evidence alone. Accordingly, we
find this assigned of error to be without merit.
6
Assignments of Error II & III
Background
The appellant served his 60 days’ confinement from the date
his adjudged sentence was announced (14 February 2014) until 2
April 2014. 4 During his period of confinement the appellant
continued to receive pay notwithstanding the fact that he was
awarded a total forfeiture of all pay and allowances. 5 From
February through April 2014, he was paid $23,194.23. 6 Starting
in May 2014, the Defense Financial Accounting Service (DFAS)
suspended the appellant’s account and he did not receive any pay
after that date. 7 The CA approved the sentence as adjudged on 5
June 2014 and ordered the appellant to pay the adjudged fine of
$60,000.00 by 9 June 2014. The appellant did not pay the
adjudged fine by 9 June 2014 and DFAS posted a $60,000.00 debt
to his pay account in June 2014. 8 On 1 July 2014, the
appellant’s case was docketed with this court.
On 15 July 2014, a fine enforcement hearing was held due to
the appellant’s failure to pay. 9 The hearing officer found that
the appellant had paid $10,000.00, had made good faith efforts
to pay the fine, and was otherwise indigent. The hearing
officer recommended against further confinement based on the
appellant’s inability to continue payment. Instead, he
recommended that the appellant should pay back the remainder of
the fine according to a payment schedule. 10 The staff judge
advocate concurred that the appellant both made good faith
efforts to pay the fine and was indigent, but recommended
further confinement of up to sixteen months.
4
See Appellant’s Motion to Attach filed on 19 Dec 2014, Appellant’s
Declaration dated 18 Dec 2014 at ¶ 2.
5
See Government’s Motion to Attach filed on 27 Apr 2015, Appellant’s Leave
and Earnings Statements (LES) of February, March and April 2014.
6
See id.
7
See Government’s Motion to Attach filed on 27 Apr 2015, Appellant’s LES of
May 2014.
8
See Government’s Motion to Attach filed on 27 Apr 2015, Appellant’s LES of
June 2014.
9
See Appellant’s Brief of 19 Dec 2014, Appendix 3.
10
See id. at ¶ 18.
7
On 23 July 2014, the CA issued Supplemental Court-Martial
Order 1-13 in which he attempted to approve further confinement
not to exceed 12 months and remitted the 60 days’ restriction
and the unpaid portion of the fine, which he believed was
$50,000.00 when he issued the supplemental order. 11 The
appellant was ordered into confinement the same day.
Between 23 July 2014 and 25 July 2014, the CA learned that
the appellant had actually paid $29,529.64 towards his fine vice
$10,000. 12 In light of the higher amount paid on the fine, the
CA issued a second supplemental order on 25 July 2014, attempted
to remit all confinement in excess of 6 months. 13
The appellant then petitioned this court for a Writ of
Habeas Corpus on 28 July 2014. On 6 August 2014, the CA ordered
the appellant released from confinement and remitted all further
confinement. 14 The appellant returned again to a duty status and
was discharged on 28 August 2014 without receiving final pay or
an accounting thereof. 15 Based on the appellant’s LES records,
absent a hardship payment 16 of $6,463.49, DFAS deducted the
entire amount of the appellant’s paycheck between 1 May 2014 and
28 August 2014, which meant the appellant did not receive any
income during that timeframe. 17
Law
The appellant argues that his sentence was in excess
of the adjudged sentence. He also argues that his punishment
was increased without due process and constituted cruel and
unusual punishment. We review these issues de novo. United
States v. White, 54 M.J. 469, 471 (C.A.A.F. 2001).
11
See Appellant’s Brief at Appendix 5.
12
See Government’s Response to Court Order to Produce Documents filed on 15
Apr 2015, Second Supplemental Court-Martial Order No. 1-13 of 25 Jul 14.
13
See id.
14
See Appellant’s Brief at Appendix 6.
15
See Appellant’s Motion to Attach filed on 19 Dec 2014, Appellant’s
Declaration dated 18 Dec 14 at ¶ 6.
16
See Government’s Motion to Attach filed on 27 Apr 2015, Affidavit of PS1
Anthony Hodge of 14 Apr 2015.
17
See Appellant’s Brief at Appendix 7, Appellant’s LES of May, June, July,
and August.
8
When an appellant’s sentence of “forfeiture of all pay and
allowances” does not expressly provide for partial forfeitures
following release from confinement, only those forfeitures
coterminous with the appellant’s confinement will be upheld.
United States v. Stewart, 62 M.J. 291, 294 (C.A.A.F. 2006).
Similarly, where a total forfeiture is adjudged, it shall run
until the service member is discharged or returns to a duty
status. Id. In short, “a service member released from
confinement and still in a duty status may not be deprived of
more than two-thirds of his or her pay.” Id. (citing United
States v. Warner, 25 M.J. 64, 67 (C.M.A. 1987)) (additional
citation omitted). Similarly, 37 U.S.C. § 1007(c)(2) requires
that pay forfeited as a part of a court-martial sentence or
otherwise legally withheld may not reduce the received pay of a
service member to less than one-third of the member’s monthly
pay.
Here, the appellant’s adjudged and approved sentence was
lawful and appropriate. Nevertheless, the appellant does
highlight administrative issues that created confusion
surrounding the execution of his sentence. First, on 23 July
2014, the CA believed the appellant had only paid $10,000.00 of
his fine and issued Supplemental Court-Martial Order 1-13,
remitting “that portion of the fine which ha[d] not yet been
paid . . . .” However, the appellant had actually paid
$29,529.64 of his fine prior to the CA’s initial remittance
action. Therefore, when the CA issued Supplemental Court-
Martial Order 1-13 on 23 July 15, he actually attempted to remit
only $30,470.36 of the $60,000.00 adjudged fine. Second, the
members sentenced the appellant to total forfeitures, which were
in effect during his period of confinement. DFAS, however, did
not execute the total forfeiture provision of the appellant’s
sentence while the appellant was confined. And finally, the
Government paid the appellant over $45,000.00 in BAH that he was
not entitled to receive. 18
While we review an appellant’s sentence to determine
sentence appropriateness, Congress explicitly delegated matters
of pay termination and forfeiture to federal courts that have
“particular expertise in dealing with claims for pay,” such as
the U.S. Court of Federal Claims. United States v. Allen, 33
M.J. 209, 215-16 (C.M.A. 1991). The appellant’s initial
overpayment while in confinement followed by the subsequent
suspension of his account were a product of DFAS attempting to
both collect debts to the Government and enforce a fine. The
18
See Prosecution Exhibit 5.
9
suspension of the appellant’s account is a collateral matter
with respect to his sentence and his recovery of any pay that is
due to him should be resolved in an appropriate civil forum, not
in the Court of Criminal Appeals.
The appellant also argues that this deprivation of pay
constituted a violation of his Fifth and Eighth Amendment
rights. We disagree. As stated above, it was not a part of the
Government’s punishment to deprive the appellant of all pay and
allowances. Furthermore, while the Government may have paid the
appellant in a haphazard fashion, he did receive approximately
one third of his pay from March 2014 until appellant’s discharge
in August 2014. 19 Recognizing the consequences of the
appellant’s sentence did result in financial hardship, they do
not amount to Constitutional violations. Accordingly, we
decline to grant relief.
Sentence Appropriateness
While not raised as an assignment of error, our review
includes affirming only that much of the sentence appropriate
for this offender and these offenses. See Art. 66(c). On this
record, we affirm only that part of the sentence that extends to
total forfeitures, confinement for 60 days, reduction to pay
grade E-5, and fine in the amount of $29,529.64.
Incorrect Court-Martial Order
We additionally note that the court-martial order does not
reflect that the appellant was charged with and acquitted of
conspiracy to commit fraud and impeding an investigation. In
accordance with R.C.M. 1114(c)(1), the court-martial
promulgating order should include, inter alia, the pleas and
findings of each charge and specification on which the appellant
was arraigned, not just those in which the appellant was found
guilty. Because service members are entitled to records that
correctly reflect the results of court-martial proceedings, we
shall order the necessary corrective action. See United States
v. Crumpley, 49 M.J. 538, 539 (N.M. Ct. Crim. App. 1998).
19
The Government paid the appellant approximately $14,754.85, before taxes,
during the months of March and April, and he received a hardship payment of
$6,463.49 in June. See Government’s Motion to Attach filed on 27 Apr 2015,
Appellant’s LES of March and April 2014 and Affidavit of PS1 Anthony Hodge of
14 Apr 2015. Comparatively, without accounting for 60 days of total
forfeitures, one-third of the appellant’s pay for the months of March through
August would have totaled approximately $14,456.92, before taxes. See id.,
Appellant’s LES of March, April, May, and June, and Appellant’s Brief,
Appendix 7, Appellant’s LES of July and August 2014.
10
Conclusion
The findings and the sentence as noted above are affirmed.
The supplemental court-martial order shall reflect the pleas and
disposition of all charges upon which the appellant was
arraigned.
For the Court
R.H. TROIDL
Clerk of Court
11