United States v. Palacios Cueto

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Manuel PALACIOS CUETO, Airman First Class
United States Air Force, Appellant
No. 21-0357
Crim. App. No. 39815
Argued May 10, 2022—Decided July 19, 2022
Military Judge: Matthew N. McCall
For Appellant: Major Sara J. Hickmon (argued); Major
Abhishek S. Kambli and Mark C. Bruegger, Esq. (on brief).
For Appellee: Major Cortland Bobczynski (argued); Colonel
Naomi P. Dennis, Lieutenant Colonel Matthew J. Neil, and
Mary Ellen Payne, Esq. (on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS, Judge
HARDY, and Senior Judge STUCKY joined.
_______________

Judge MAGGS delivered the opinion of the Court.
In this appeal, we decide two assigned issues concerning
the conduct of counsel during a general court-martial at
which Appellant was found guilty of two specifications of
abusive sexual contact. The first assigned issue is “[w]hether
trial defense counsel were ineffective.” In addressing this
issue, Appellant faults his civilian defense counsel and trial
defense counsel (hereinafter referred to collectively as defense
counsel) for several deficiencies: failing to admit evidence of a
potentially mitigating matter during sentencing; not advising
him to address this and two other potentially mitigating
matters in his unsworn statement; and not requesting
tailored instructions regarding these matters. The second
assigned issue is “[w]hether trial counsel committed
prosecutorial misconduct when they stated that they
represented ‘the pursuit of justice’ and argued justice would
only be served if appellant was convicted and adjudged a
sufficient punishment.” Appellant contends that circuit trial
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counsel and assistant trial counsel (hereinafter referred to
collectively as trial counsel) made improper statements and
may have caused the court-martial to find him guilty and to
sentence him on considerations beyond the admitted
evidence. For reasons explained below, we conclude that
defense counsel were not ineffective and that any misconduct
by trial counsel was harmless.
I. Background
In May 2018, Appellant and Airman First Class (A1C)
M.T. had drinks and dinner together at a restaurant in
Boston and also had drinks at two bars. They then returned
to Hanscom Air Force Base, where they both were stationed,
and had more drinks. A1C M.T. became intoxicated. A video
from a security camera in A1C M.T.’s dormitory hallway
shows Appellant kissing A1C M.T. on the lips and following
her into her room. A1C M.T. testified that she went to bed
soon after entering her room, and that her last memory before
falling asleep was feeling Appellant touching her stomach.
When A1C M.T. later awoke, she saw Appellant sleeping
in her bed and wearing only his underwear. Suspecting that
Appellant had sexually assaulted her, she directed him to
leave her room and then promptly reported the incident. A
medical examination revealed redness in her pubic area. A
forensic examination later determined that Appellant’s DNA
was inside A1C M.T.’s underwear and shorts and that her
DNA was on Appellant’s underwear.
Appellant was charged with one specification of sexual
assault and two specifications of abusive sexual contact in
violation of Article 120, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920 (2012).1 The sexual assault

1 The version of Article 120 in the 2012 edition of the U.S.C.
applies in this case because Appellant committed his offenses on
May 27, 2018. Although Congress enacted amendments to Article
120, UCMJ, in 2016 and 2017 (which are reflected in the version of
Article 120, UCMJ, included in the 2018 edition of the U.S.C.), the
amendments do not apply to offenses committed before January 1,
2019. See National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114–328, §§ 5430(a)–(b) & 5542, 130 Stat. 2000, 2949,
2967 (Dec. 23, 2016); National Defense Authorization Act for Fiscal

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specification accused Appellant of penetrating A1C M.T.’s
vulva with his penis. One of the abusive sexual contact
specifications accused Appellant of touching A1C M.T.’s
stomach and thighs with his hand, while the other
specification accused him of kissing her lips.
A general court-martial with officer and enlisted members
tried Appellant. Following the close of evidence, the military
judge gave the members standard instructions, the
correctness of which are not contested in this appeal. The
court-martial found Appellant not guilty of the sexual assault
specification but guilty of both of the abusive sexual contact
specifications.2 The court-martial sentenced Appellant to
reduction to the lowest enlisted grade, a bad-conduct
discharge, and ninety days of hard labor without
confinement. The convening authority disapproved the
adjudged hard labor without confinement and took no other
action on the sentence. The United States Air Force Court of
Criminal Appeals (AFCCA) affirmed with one judge
dissenting. United States v. Palacios Cueto, No. ACM 39815,
2021 CCA LEXIS 239, at *54, 2021 WL 1999440, at *19 (A.F.
Ct. Crim. App. May 18, 2021) (unpublished); id. at *54–55,
*78, 2021 WL 1999440, at *20, *28 (Meginley, J., dissenting
in part and in the result). We provide further relevant
background in discussing each of the assigned issues.
II. Ineffective Assistance of Counsel
The first assigned issue is whether Appellant’s defense
counsel provided ineffective assistance of counsel in violation
of the Sixth Amendment. Appellant alleges five specific
deficiencies in defense counsel’s performance: (1) “failing to
advise Appellant to reference his pending sex offender status
in his unsworn statements”; (2) “failing to advise Appellant
to . . . reference [a] change in the law that removed his
convicted offenses from the list of mandatory registerable sex
offenses”; (3) “failing to seek a tailored instruction from the
military judge explaining this extraordinary latter fact”; (4)

Year 2018, Pub. L. No. 115–91, §§ 1081(c)(1)(O) & (c)(4), 131 Stat.
1283, 1598 (Dec. 12, 2017).
2 The court-martial found Appellant guilty of the second
specification except the words “and thighs.”

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“failing to advise Appellant to reference [in his unsworn
statement] the mandatory administrative separation he
would face if a punitive discharge were not adjudged”; and (5)
“failing to attempt to admit such evidence during sentencing.”
Appellant also argues that, even apart from these specific
problems, “defense counsel’s overall performance” in
sentencing was deficient.
A. Standard of Review and Governing Law
This Court reviews de novo allegations of ineffective
assistance of counsel. United States v. Gooch, 69 M.J. 353, 362
(C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470,
474 (C.A.A.F. 2009)). To establish that ineffective assistance
of counsel occurred, an appellant must prove both that the
defense counsel’s performance was deficient and that the
deficiency caused prejudice. United States v. Captain, 75 M.J.
99, 103 (C.A.A.F. 2016) (citing Strickland v. Washington, 466
U.S. 668, 698 (1984)). With respect to the first prong of this
test, courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance”; and “[a]s to the second prong, a challenger must
demonstrate “a reasonable probability that, but for counsel’s
[deficient performance] the result of the proceeding would
have been different.” Id. (second alteration in original)
(internal quotation marks omitted) (quoting Strickland, 466
U.S. at 689, 694).
As discussed below, most of Appellant’s claims of
ineffective assistance of counsel touch upon our decisions
concerning “collateral consequences.” A collateral
consequence is “ ‘[a] penalty for committing a crime, in
addition to the penalties included in the criminal sentence.’ ”
United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006)
(alteration in original) (quoting Black’s Law Dictionary 278
(8th ed. 2004) (citing as 1999 in original)), overruled in part
by United States v. Riley, 72 M.J. 115, 116–17 (C.A.A.F. 2013).
“The general rule concerning collateral consequences is that
‘courts-martial [are] to concern themselves with the
appropriateness of a particular sentence for an accused and
his offense, without regard to the collateral administrative
effects of the penalty under consideration.’ ” United States v.
Griffin, 25 M.J. 423, 424 (C.M.A. 1988) (alteration in original)
(quoting United States v. Quesinberry, 12 C.M.A. 609, 612, 31

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C.M.R. 195, 198 (1962)). In United States v. Talkington, 73
M.J. 212, 213 (C.A.A.F. 2014), this Court held that a “[s]ex
offender registration [requirement] is a collateral
consequence of the conviction alone, not the sentence.” The
Court further held that “[w]hile an accused may raise a
collateral consequence in an unsworn statement, . . . the
military judge may instruct the members essentially to
disregard the collateral consequence in arriving at an
appropriate sentence for an accused.” Id. (citations omitted).
B. Additional Background and Discussion
Appellant’s five assertions of deficient performance
concern three subjects: sex offender registration
requirements, a recent amendment to Article 120, UCMJ, and
the possibility that the Air Force would administratively
discharge Appellant if the court-martial did not sentence him
to a punitive discharge. We address these subjects separately
because they involve different considerations. We also
address the overall performance of defense counsel in
sentencing.
1. Sex Offender Registration Requirements
During the sentencing phase of the court-martial,
Appellant made an oral unsworn statement and also
submitted a written unsworn statement. In these unsworn
statements, Appellant did not address sex offender
registration requirements. Trial defense counsel, in his
sentencing argument, also did not expressly address sex
offender registration requirements. A few of trial defense
counsel’s remarks, however, touched upon this subject
indirectly. Trial defense counsel specifically told the members
that Appellant “is now a federal convict for the rest of his life,
of a sexual assault offense,” and he asked them to consider
“what punishment is necessary beyond that.”
The topic of sex offender registration first arose explicitly
when the members were deliberating on the sentence. The
members specifically asked the military judge whether
Appellant would have to register as a sex offender. The
military judge instructed them that “[u]nder DoD
instructions, when convicted of certain offenses, including the
offenses here, the accused must register as a sex offender with
the appropriate authorities in the jurisdiction in which he

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resides, works, or goes to school.” But the military judge
warned the members that the specific requirements are not
predictable and that it was not their duty to attempt to
predict them. The military judge added: “While the accused is
permitted to address these matters in an unsworn statement,
these possible collateral consequences should not [be] part of
your deliberations in arriving at a sentence.” Trial defense
counsel did not object to these instructions or ask for
additional instructions.
When Appellant raised the issue of ineffective assistance
of counsel in his appeal to the AFCCA, the AFCCA ordered
affidavits from Appellant’s defense counsel. Civilian defense
counsel did not recall what advice he had given Appellant
regarding his unsworn statement but asserted that any issue
raised by not including collateral consequences in the
unsworn statement was cured by the members’ question
about sex offender registration. Trial defense counsel stated
that he did not advise Appellant to mention federal sex
offender registration requirements as part of his unsworn
statement. The record contains no evidence that Appellant
desired to discuss his sex offender registration requirements
in his unsworn statements.
After receiving these affidavits, the AFCCA held that trial
defense counsel were not deficient for failing to advise
Appellant to discuss sex offender registration in his unsworn
statement. Palacios Cueto, 2021 CCA LEXIS 239, at *38, 2021
WL 1999440, at *14. Relying on this Court’s decision in
Talkington, the AFCCA ruled that sex offender registration
and administrative discharges are not proper considerations
at sentencing. Id., 2021 WL 1999440, at *14. The AFCCA
further reasoned that “[t]rial defense counsel had no duty to
inform the members of matters that are an improper
consideration for sentencing, much less do so through their
client’s unsworn statement.” Id., 2021 WL 1999440, at *14.
One judge dissented, concluding that defense counsel were
deficient in not advising Appellant to mention sex offender
registration. Id. at *76, 2021 WL 1999440, at *26 (Meginley,
J., dissenting in part and in the result).
In his appeal to this Court, Appellant contends that his
defense counsel had a duty to provide him guidance on
unsworn statements based on their general obligation to act

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in a client’s best interest. He asserts that just as a defense
counsel would be deficient for failing to caution a client
against including information that might increase the
sentence, defense counsel also would be deficient for failing to
recommend that the client include information likely to
decrease the sentence. Appellant acknowledges that the
military judge could have tempered any remarks that he
made about sex offender registration requirements with
additional instructions. But he argues that the defense faced
no risk in bringing these matters to the attention of the panel
and that he might have benefitted by making the members
aware of the impact sex offender registration would have on
him personally. Appellant concludes that defense counsel’s
failure to advise him to address these matters was therefore
unreasonable and consequently deficient.
We are not persuaded that defense counsel’s performance
was deficient. In determining whether an attorney’s conduct
was deficient we do not simply ask whether the attorney did
everything possible that posed little or no risk to the client.
Instead, as explained above, the test is whether “counsel’s
conduct falls within the wide range of reasonable professional
assistance.” United States v. Scott, 81 M.J. 79, 84 (C.A.A.F.
2021). In our view, defense counsel reasonably could have
decided not to advise Appellant to mention sex offender
registration requirements in his unsworn statements because
mentioning them would prompt the military judge to
“instruct the members essentially to disregard [such a]
collateral consequence in arriving at an appropriate sentence
for an accused.” Talkington, 73 M.J. at 213. Indeed, the
military judge gave just such an instruction to the members
after they asked about sex offender registration. An
attorney’s decision to forego taking actions that likely would
be futile is not deficient. Vieux v. Pepe, 184 F.3d 59, 64 (1st
Cir. 1999) (“Obviously, counsel’s performance was not
deficient if he declined to pursue a futile tactic.”); see also
United States v. Wright, 573 F.2d 681, 684 (1st Cir. 1978)
(“Counsel is not required to waste the court’s time.”).
2. The Amendment to Article 120, UCMJ
Appellant’s second and third assertions of deficient
representation concern a recent amendment to Article 120,
UCMJ. At the time that Appellant committed his abusive

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sexual contact offenses, Article 120(g)(2)(B), UCMJ, defined
“sexual contact” to mean “any touching . . . either directly or
through the clothing, of any body part of any person, if done
with an intent to arouse or gratify the sexual desire of any
person.” 10 U.S.C. § 920(g)(2)(B) (2012). Under this
definition, Appellant committed a sexual contact when he
touched A1C M.T.’s stomach and kissed her on the lips with
the requisite intent. But a recent amendment to Article 120,
UCMJ—which applies only to offenses committed on or after
January 1, 2019—has changed the definition of “sexual
contact.” Under the new definition, sexual contact now must
involve the touching of “the vulva, penis, scrotum, anus,
groin, breast, inner thigh, or buttocks.” Article 120(g)(2), 10
U.S.C. § 920(g)(2) (2018). The revised definition would not
cover the touching of a person’s stomach or lips. Accordingly,
if Appellant had kissed and touched A1C M.T. in 2019 instead
of in 2018, his actions would not have constituted abusive
sexual contact, and consequently he would not have to
register as a sex offender.
Appellant did not mention the amendment to Article 120,
UCMJ, in either of his unsworn statements. Trial defense
counsel also did not address the amendment in his sentencing
argument and did not request an instruction regarding the
amendment. The military judge did not instruct the panel
about the amendment. In addition, neither counsel
mentioned this issue in the affidavits that they provided to
the AFCCA. The AFCCA also did not address this issue in its
majority opinion. But in his separate opinion, Judge Meginley
concluded that defense counsel were deficient because they
did not advise Appellant to discuss this amendment in his
unsworn statement and he also concluded that this deficiency
was prejudicial. Palacios Cueto, 2021 CCA LEXIS 239, at *67,
2021 WL 1999440, at *24 (Meginley, J., dissenting in part and
in the result).
In his briefs before this Court, Appellant argues his
counsel were deficient for failing to advise him to mention the
change in the law in his unsworn statement. He also argues
that defense counsel were deficient in failing to seek a tailored

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instruction from the military judge.3 He asserts that
providing a complete explanation of the amendment to Article
120, UCMJ, would have helped him at sentencing because the
explanation might have dispelled the members’ potentially
erroneous beliefs about the seriousness of Appellant’s
offenses.
We are not persuaded. Even if Appellant faced little risk
in mentioning the amendment to Article 120, UCMJ, we
cannot say that defense counsel were deficient for failing to
advise him to address it. If Appellant had mentioned the
amendment in his unsworn statement, the military judge
would have been correct in instructing the members that the
amendment to the law does not apply to Appellant because it
had not yet gone into effect and that the members must follow
the preamended law in sentencing Appellant. United States
v. Barrier, 61 M.J. 482, 484 (C.A.A.F. 2005) (holding that an
accused’s unsworn statement “may be tempered by
appropriate instructions from the military judge”); United
States v. Lilly, 25 M.J. 403, 406 (C.M.A. 1988) (explaining
that amendments to the law that do not apply to the accused
are irrelevant). Such an instruction would have reduced or
eliminated the possible benefit from mentioning the change
in the law. As explained above, attorneys do not need to
undertake futile acts. Defense counsel thus reasonably could
decide not to advise Appellant to address the amendment in
his unsworn statement.
3. Administrative Discharge
The parties generally agree that under Air Force
Instruction 36-3208, if a court-martial finds an accused guilty
of a sex offense but does not sentence the accused to a punitive
discharge, the Air Force would still discharge the accused
administratively unless the accused seeks and obtains a
waiver. Dep’t of the Air Force, Instr. 36-3208, Administrative
Separation of Airmen para. 5.55.3.2 (July 2, 2013)
(incorporating through Change 7 to Instr. 36-3208, July 9,
2004). In his unsworn statements, Appellant did not discuss
this Air Force Instruction or the very likely possibility that
the Air Force would discharge him administratively if the

3 Appellant does not specify what such an instruction might
have said.

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court-martial did not sentence him to a punitive discharge.
Appellant also did not expressly ask the members to allow
him to stay in the Air Force but he did ask the members to
consider “how much the Air Force means to me” and he did
stress that the Air Force is “a way for me to help my sick
brother.”
Trial defense counsel, in his sentencing argument, did not
expressly mention the Air Force Instruction but he did tell the
members that Appellant “doesn’t need a discharge from the
military.” He asked the members for a “situation where
[Appellant] can make a life here in this country.” He added:
“a dishonorable or a bad[-]conduct discharge, it’s not that.” In
the affidavits that they submitted to the AFCCA, defense
counsel did not discuss the issue of administrative discharges.
The AFCCA held that their performance was not deficient,
concluding that administrative discharges, like sex offender
registration requirements, were collateral consequences
under Talkington and were not proper considerations at
sentencing. Palacios Cueto, 2021 CCA LEXIS 239, at *38,
2021 WL 1999440, at *14.
In his briefs before this Court, Appellant asserts that
under Talkington, a court-martial may consider at sentencing
collateral matters that are a “possible result of the sentence
itself, as opposed to the conviction.” 73 M.J. at 217. For
example, a court-martial may consider the possible loss of
retirement benefits that follow from a punitive discharge. Id.
Applying this principle to this case, Appellant argues that he
faced a mandatory administrative discharge as a result of his
sentence because the Air Force Instruction at issue requires a
mandatory discharge if his sentence does not include a
punitive discharge.4 He therefore contends that his
mandatory discharge was a proper matter for the panel to
consider and his defense counsel were deficient for not
attempting to admit evidence of the mandatory discharge, for
not advising him to discuss the Air Force Instruction in his

4 The Government disagrees with this interpretation of the Air
Force Instruction, asserting that the administrative discharge is
triggered only by the offense and not the sentence. We need not
resolve this disagreement because we reject Appellant’s theory on
other grounds explained below.

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unsworn statement, and for not seeking a tailored instruction
addressing the subject.5 He asserts that he was prejudiced by
this deficiency because telling the panel about the required
administrative discharge would have dispelled the members’
possible “erroneous belief that should they not adjudge a
punitive discharge, Appellant would remain in the Air Force.”
We cannot accept this argument because a key step of
Appellant’s reasoning is flawed. Although Appellant asserts
that the Air Force Instruction would make an administrative
discharge “mandatory” if he did not receive a punitive
discharge, he recognizes—in a footnote—that this is not
actually so. The Air Force Instruction does not make
administrative discharges mandatory because the Instruction
permits a person convicted of a sex offense to apply for a
waiver. Appellant contends that the provisions on waiver do
not matter in this case because a waiver here would be out of
the question. He explains that the Air Force Instruction
makes waivers dependent on several criteria, including the
views of the victim, and a waiver here would “never be an
option for him due to A1C M.T.’s continued animosity.”
We have no reason to question Appellant’s good faith in
predicting that he would not obtain a waiver. But we do not
see how a military judge could determine whether an
administrative discharge would occur based on the Air Force
Instruction without holding a trial within a trial, and even
such a trial within a trial could produce only a speculative
result. We think that this makes administrative discharges
different from the loss of retirement benefits. As such, we
cannot conclude that defense counsel were deficient for failing
to address them in the manner that Appellant now says they
should have.
4. Overall Performance of Defense Counsel in Sentencing
Finally, we consider Appellant’s argument that defense
counsel’s overall performance in sentencing was deficient
within the meaning of Strickland even if his specific
assertions of deficient performance lack merit. See United
States v. Loving, 41 M.J. 213, 252 (C.A.A.F. 1994), aff’d, 517

5 Appellant does not indicate in his briefs what this tailored
instruction would say.

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U.S. 748 (1996) (considering such an argument). Perhaps in a
rare case an attorney’s overall performance could be deficient
even though the attorney did not make specific errors. See,
e.g., People v. Raosto, 50 A.D.3d 508, 509 (N.Y. App. Div.
2008) (holding that a defense counsel’s overall performance
was deficient where the defense counsel “displayed general
carelessness and inattention throughout the trial,” “appeared
to be confused,” and was generally unsuccessful in cross-
examining witnesses). But such cases usually would arise
only when “the defendant can point to a long series of
questionable omissions by counsel” that “were not simply the
product of human fallibility, but the result of a lack of
conscientious effort.” Wayne R. LaFave et al., Criminal
Procedure § 11.10(c) (4th ed. 2015). Reviewing the entire
record, we see nothing like that here.
Because defense counsel were not deficient in their
performance, we need not address the question of prejudice.
We hold that Appellant did not have ineffective assistance of
counsel under the Strickland standard.
III. Prosecutorial Misconduct
Appellant separately argues that this Court should set
aside the findings and sentence in this case because the trial
counsel engaged in prosecutorial misconduct by repeatedly
referring to “justice” when speaking to the members.
A. Additional Background
Appellant’s brief addresses eight instances in which trial
counsel made an appeal or reference to “justice”:
(1) During initial voir dire, the circuit trial counsel
introduced himself to the members detailed to the court-
martial by saying: “Good morning, panel members. My name
is [G.F.]. I’m the circuit trial counsel and I’m stationed at
Langley Air Force Base. I am TDY here to represent the
United States of America in the pursuit of justice in this
case.”6

6 The court-martial took place at Hanscom Air Force Base in
Massachusetts. Langley Air Force Base is in Virginia. The
abbreviation “TDY” refers to being on temporary duty at a location
other than a permanent duty station.

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(2) Additional members later were detailed to the court-
martial. During the ensuing additional voir dire, circuit trial
counsel again introduced himself to the new members by
saying: “I’m TDY here to represent the United States of
America in the pursuit of justice in this case.”
(3) During his opening statement, circuit trial counsel said
to the members: “Now I ask you all to repair the little that
can be repaired and bring justice to [A1C M.T.] by finding the
accused guilty of all charges and specifications that he faces
today.”
(4) During his argument on the findings, circuit trial
counsel stated to the members: “And you will have the
ultimate decision on what happened in this case and whether
justice will be served, or whether the accused will be
acquitted.”
(5) Also during the argument on findings, circuit trial
counsel commented that “[t]he government has no obligation
to prove its case with 100 percent mathematical certainty.
The world doesn’t work like that. If that were the standard,
there would be no justice.”
(6) In response the circuit trial counsel’s statement that
the court-martial had to choose between serving justice or
finding Appellant not guilty, Appellant’s civilian defense
counsel argued that the Government was presenting a “false
choice.” He stated:
I sat there at the table and I listened to the
prosecutor at the beginning of his closing statement
utter words that should never come out of a
prosecutor’s mouth. He gave you a false choice. He
said, “You can render justice and find him guilty, or
you can find him not guilty.”
During rebuttal argument, circuit trial counsel said in reply:
It’s not a false choice. It’s a simple choice: guilty or
not guilty. And that decision has to be based upon
the evidence and the law. And when that decision is
made, that’s what we call justice. And the evidence
in this case supports guilt beyond a reasonable
doubt. That’s not a false choice. That is justice. And
that is what the evidence requires you to do in this
case.

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(7) During sentencing argument, assistant trial counsel
told the members: “I said you all had a duty, you all had a
responsibility to find justice in this case. And there is no
justice without an appropriate punishment.”
(8) Also during sentencing, assistant trial counsel told the
members: “A sufficient punishment that will bring justice
here to this case, and that will bring some form of closure to
[A1C M.T.] for all that she has . . . endured in this year-and-
a-half nightmare . . . . [is] two years of confinement, reduction
to the grade of E-1, and a dishonorable discharge.”
Civilian defense counsel did not object to any of these
statements. But as described above, civilian defense counsel
did respond to the fourth statement during his argument on
findings. The military judge gave the members a standard
instruction that “[a]rgument is made by counsel to assist you
in understanding and evaluating the evidence, but you must
base the determination of the issues in this case on the
evidence as you remember it, and apply the law as I instruct
you.” Appellant does not challenge the instructions in this
case.
On appeal, the AFCCA reasoned that a trial counsel’s use
of the word “justice” was neither always an error nor always
permissible. The AFCCA explained:
A prosecutor may argue that justice is required.
However, a prosecutor should be careful not to
confuse the jury by conflating “justice” and “criminal
conviction.” “Justice” must be tethered to the
evidence and the burden of proof lest it be confused
with justice for the victim or society or the military
justice system.
Palacios Cueto, 2021 CCA LEXIS 239, at *54, 2021 WL
1999440, at *19. Applying these principles, the AFCCA
concluded that the assistant trial counsel’s opening statement
and the circuit trial counsel’s closing argument were
improper. Id. at *48–49, 2021 WL 1999440, at *18. After
finding these comments amounted to obvious error, the CCA
applied the prejudice factors from United States v. Fletcher,
62 M.J. 175 (C.A.A.F. 2005), and found that the misconduct
was “moderately severe,” several curative measures were
taken, and the weight of the evidence supporting the
conviction was “moderate.” Id. at *50–52, 2021 WL 1999440,

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at *18–19. It then applied the harmlessness beyond a
reasonable doubt standard and found no prejudice. Id. at *52–
54, 2021 WL 1999440, at *19. One judge dissented,
concluding that trial counsel had committed prejudicial
prosecutorial misconduct. Id. at *54–55, 2021 WL 1999440, at
*20 (Meginley, J., dissenting in part and in the result).
B. Governing Law and Standards of Review
The Rules for Courts-Martial (R.C.M.) authorize trial
counsel to speak directly to the members during voir dire, see
R.C.M. 912(d); when making an opening statement, see
R.C.M. 913(b); when making an argument on the findings, see
R.C.M. 919(a); and when making argument on sentencing, see
R.C.M. 1001(h). What trial counsel may say while speaking
to the members is subject to various limitations. See, e.g.,
Fletcher, 62 M.J. at 179–84 (listing numerous kinds of
improper comments); R.C.M. 912(d) Discussion (explaining
that “counsel should not purposely use voir dire to present
factual matter which will not be admissible or to argue the
case”); R.C.M. 919(b) Discussion (explaining that “[c]ounsel
should not express a personal belief or opinion as to the truth
or falsity of any testimony or evidence or the guilt or
innocence of the accused, nor should counsel make arguments
calculated to inflame passions or prejudices”). Making
statements that violate these limitations can be one form of
“prosecutorial misconduct.” Fletcher, 62 M.J. at 179; United
States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (defining
“[p]rosecutorial misconduct” 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”).
In some cases, improper comments may not only violate
an R.C.M. but also may result in a constitutional violation.
The Supreme Court’s decision in Taylor v. Kentucky, 436 U.S.
478 (1978), is illustrative. In that case, a prosecutor
improperly made arguments based on evidence not in the
record and improperly suggested that the defendant’s
indictment was evidence of his guilt. Id. at 486–88. The
Supreme Court held that the defendant had been denied due
process because the trial judge had not corrected these errors.
Id. at 490; see also Fletcher, 62 M.J. at 185 (holding that “trial
counsel’s statements were so inflammatory and damaging

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that we cannot be confident that the members convicted
Fletcher on the basis of the evidence alone”).
No specific rule prohibits trial counsel from using the word
“justice” when speaking to the members. But “a court-martial
must reach a decision based only on the facts in evidence.”
Fletcher, 62 at 183. Accordingly, we agree with the well-
phrased reasoning of the AFCCA: “[A] prosecutor should be
careful not to confuse the jury by conflating ‘justice’ and
‘criminal conviction.’ ‘Justice’ must be tethered to the
evidence and the burden of proof lest it be confused with
justice for the victim or society or the military justice system.”
Palacios Cueto, 2021 CCA LEXIS 239, at *54, 2021 WL
1999440, at *19. Similarly, trial counsel should not use the
word “justice” to imply that sentencing should be based on
unauthorized considerations. See R.C.M. 1002(f) (listing
permissible considerations).
Appellate judges must exercise care in determining
whether a trial counsel’s statement is improper or has
improper connotations. The Supreme Court has emphasized
that “a court should not lightly infer that a prosecutor intends
an ambiguous remark to have its most damaging meaning or
that a jury, sitting through lengthy exhortation, will draw
that meaning from the plethora of less damaging
interpretations.” Donnelly v. DeChristoforo, 416 U.S. 637, 647
(1974). A statement that might appear improper if viewed in
isolation may not be improper when viewed in context. Id. at
645. And even if a statement is improper, it may not be
sufficiently prejudicial, in the context of the entire trial, to
violate the accused’s due process rights. Id. at 642–43.
When a party does not object to comments by the
prosecutor during voir dire, opening statement, argument on
the findings, or argument on the sentence, we review for plain
error. United States v. Nieto, 66 M.J. 146, 147 (C.A.A.F. 2008)
(reviewing statement made during voir dire for plain error);
United States v. Clark, 69 M.J. 438, 443 (C.A.A.F. 2011) (same
for opening statement and argument on findings); United
States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007) (same for
sentencing argument). Under plain error review, Appellant
bears the burden of demonstrating that: “(1) there was error,
(2) the error was [clear] and obvious, and (3) the error
materially prejudiced a substantial right of the accused.”

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United States v. Jones, 78 M.J. 37, 44 (C.A.A.F. 2018)
(internal quotation marks omitted) (citation omitted).
For nonconstitutional errors, this Court may grant relief
only if “the error materially prejudice[d] the substantial
rights of the accused.” Article 59(a), UCMJ, 10 U.S.C. § 859(a)
(2018); United States v. Hamilton, 78 M.J. 335, 342–43
(C.A.A.F. 2019). In Fletcher, this Court asserted that the best
approach for assessing the prejudice from prosecutorial
misconduct “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.” 62 M.J. at 184.
The prejudice analysis is different if the errors involve
constitutional rights. If a constitutional error is “structural,”
then reversal is automatic. Neder v. United States, 527 U.S.
1, 8 (1999) (identifying denial of counsel, a biased trial judge,
a defective reasonable doubt instruction, and other errors as
structural). If a constitutional error is nonstructural, then
under our precedent, the Government must prove that the
error was harmless beyond a reasonable doubt even on plain
error review. United States v. Tovarchavez, 78 M.J. 458, 460
(C.A.A.F. 2019).
C. Discussion
As quoted above, trial counsel referred to “justice” in eight
statements. Two of these statements do not strike us as
problematic. Trial counsel tethered justice to the evidence
when he said during rebuttal argument: “It’s a simple choice:
guilty or not guilty. And that decision has to be based upon
the evidence and the law. And when that decision is made,
that’s what we call justice.” And during his sentencing
argument, trial counsel did not err when he defined justice to
mean “an appropriate punishment,” saying: “I said you all
had a duty, you all had a responsibility to find justice in this
case. And there is no justice without an appropriate
punishment.” Most military judges give members a
comparable instruction. Dep’t of the Army, Pam. 27-9, Legal
Services, Military Judges’ Benchbook ch. 8, § III, para. 8-3
(2020) (“As court members, it is your duty to hear the evidence
and . . . to adjudge an appropriate sentence.”). In addition,
R.C.M. 1002(f)(3)(C) directs courts-martial to take “into

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consideration . . . the need for the sentence to . . . provide a
just punishment for the offense.”
But the other six references to justice are not so easily
dismissed. If we were to review these other statements in
isolation, each of them would raise significant concerns. The
members might have understood the twice-repeated
statement during voir dire—“I’m here . . . in the pursuit of
justice in this case”—to imply that Appellant’s defense
counsel were not there to pursue justice. The members might
have understood trial counsel’s request in his opening
statement—“repair the little that can be repaired and bring
justice to [A1C M.T.] by finding the accused guilty”—to mean
that members should focus on providing relief to A1C M.T.
rather than assessing the evidence. The members similarly
might have understood trial counsel’s first remark during his
findings argument—“you will have the ultimate
decision . . . whether justice will be served, or whether the
accused will be acquitted”—to mean that they should focus on
justice rather than on the evidence. And both this remark and
the other statement during findings ignore the Government’s
burden of proving guilt. Finally, the second mention of justice
during sentencing argument—“[A] sufficient punishment
. . . will bring some form of closure to [A1C M.T.] for all that
she has . . . endured in this year-and-a-half nightmare”—may
have misguided the members. A court-martial certainly may
consider the “the impact of the offense on . . . [the]
psychological well-being of any victim.” R.C.M. 1002(f)(2)(A)
(emphasis added). But a court-martial should not consider
how the sentence would affect the victim. See United States v.
Davis, 39 M.J. 281, 283 (C.M.A. 1994) (holding that a question
about how the victim would feel if the accused received no
punishment was improper because the “question does not call
for impact testimony based upon the offense but rather calls
for impact testimony based upon the judicial process”).
Indeed, even counsel for the Government agreed at oral
argument that at least some of what trial counsel said, if
viewed in isolation, would be improper.7

7 As noted above, the circuit trial counsel on two occasions used
nearly identical language to introduce himself to the members
detailed to the court-martial. He stated: “[I am] TDY here to
represent the United States of America in the pursuit of justice in

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The Government, however, makes three responses. First,
the Government argues that this Court should not view trial
counsel’s statements in isolation, but instead under Donnelly,
416 U.S. at 637, must view them in context. Second, the
Government argues that, in viewing the six problematic
statements, we should not ascribe to them the “most
damaging meaning . . . from the plethora of less damaging
interpretations.” Id. at 647. Third, the Government argues
that even if some statements were improper, the AFCCA was
still correct in concluding that any error was harmless under
the Fletcher factors.
Of these three arguments, the Government appears to
place the most emphasis on the third, as did the AFCCA. We
think this is the most straightforward way to resolve the
assigned issue. Under plain error review, we will assume
without deciding that that the six statements discussed above
were all in error without getting into the Government’s
arguments that some of them might not have been error
because context showed that they had a permissible meaning.
We will further assume that the errors were plain and
obvious. We then will test for prejudice using the Fletcher
factors identified above: “(1) the severity of the misconduct,
(2) the measures adopted to cure the misconduct, and (3) the
weight of the evidence supporting the conviction.” 62 M.J. at
184.
We agree with the AFCCA’s conclusion that that the
misconduct was “moderately severe.” The Government made
multiple references to “justice” that were presumably
improper for the reasons explained above. But while this
misconduct occurred repeatedly, it was, in our judgment, not
as severe as the misconduct that this Court unfortunately has
seen in other cases. See, e.g., United States v. Norwood, 81
M.J. 12, 21 (C.A.A.F. 2021) (finding that it was improper for
the prosecution to vouch for the victim and to tell the panel to
consider how they would be perceived by others based on their
decision); United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F.
2019) (finding misconduct after the prosecution attacked the

this case.” We concur with Government appellate counsel who
laudably conceded at oral argument that this statement, at a
minimum, amounted to “a bit [of] grandstanding.”

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defense counsel, attacked the accused, expressed personal
opinions, bolstered, and vouched); United States v. Sewell, 76
M.J. 14, 17–19 (C.A.A.F. 2017) (finding it was improper for
the prosecution to use character evidence to show the accused
was a “deviant” for a propensity purpose); United States v.
Frey, 73 M.J. 245, 249 (C.A.A.F. 2014) (finding it was
improper for the prosecutor to argue the panel should, “in lieu
of evidence,” apply knowledge of the “ways of the world” for
sentencing); see also Berger v. United States, 295 U.S. 78, 84
(1935) (listing numerous egregious prosecutorial acts).
We also agree with the AFCCA that effective curative
measures were taken. The military judge gave the members
complete and correct instructions and informed the members
that these instructions should control their deliberations.
Civilian defense counsel also effectively responded to most of
what trial counsel said, especially with respect to the
suggestion that justice required a finding of guilt.
Finally, we agree with the AFCCA that the weight of the
evidence supporting the conviction was “moderate.” A1C M.T.
testified about what happened with respect to the offense of
which Appellant was found guilty. A video partially
corroborated her testimony by showing Appellant kissing her
and entering her room. The medical and forensic evidence
was not inconsistent with A1C M.T.’s testimony, although it
did little or nothing to prove the offenses of which Appellant
was found guilty. The panel members also gave a sentence
that does not appear to have resulted from inflamed passions.
Based on all of these factors, we cannot conclude that
Appellant suffered material prejudice to a substantial right.
The only question remaining is whether the improper
statements violated Appellant’s constitutional rights and
therefore require us to determine whether they were
harmless beyond a reasonable doubt. In some cases, as noted,
uncorrected statements by a prosecutor may lead to a
violation of due process if the judge does not adequately
correct them. See, e.g., Taylor v. Kentucky, 436 U.S. at 490.
But in this case the military judge gave proper instructions
that lead us to conclude that any error that occurred was not
constitutional in dimension. Accordingly, the harmlessness
beyond a reasonable doubt standard does not apply.

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IV. Conclusion
The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.

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