UNITED STATES, Appellee
v.
Paul H. SCHRODER, Chief Master Sergeant
U.S. Air Force, Appellant
No. 06-0657
Crim. App. No. 35855
United States Court of Appeals for the Armed Forces
Argued February 6, 2007
Decided May 31, 2007
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Mary T. Hall, Esq. (argued); Major John N. Page
III (on brief); Major Sandra K. Whittington.
For Appellee: Major Kimani R. Eason (argued); Colonel Gerald R.
Bruce and Major Matthew S. Ward (on brief); Lieutenant Colonel
Robert V. Combs.
Military Judge: Kevin P. Koehler
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schroder, No. 06-0657/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a general court-martial composed of
officer and enlisted members. Contrary to his pleas, he was
convicted of one specification of rape of a child under sixteen
and one specification of indecent acts1 in violation of Articles
120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 920, 934 (2000). The adjudged sentence included a
dishonorable discharge, confinement for ten years, forfeiture of
all pay and allowances, and reduction to E-4. The convening
authority approved the sentence as adjudged. The United States
Air Force Court of Criminal Appeals affirmed. United States v.
Schroder, No. ACM 35855 (A.F. Ct. Crim. App. Mar. 31, 2006).
On Appellant’s petition, we granted review of the following
issues:
WHETHER THE MILITARY JUDGE ERRED IN ADMITTING
EVIDENCE OF ALLEGED SEXUAL MOLESTATION ACTS BY
APPELLANT INVOLVING [SC] AND [JR] AND FAILED TO
ADEQUATELY INSTRUCT THE PANEL ON HOW TO USE SUCH
EVIDENCE.
WHETHER THE TRIAL COUNSEL IMPROPERLY ENGAGED IN
INFLAMMATORY, IRRELEVANT, AND PREJUDICIAL
COMMENTS DURING ARGUMENT BY URGING THE MEMBERS
DURING THE MERITS AND SENTENCING TO RENDER
JUSTICE NOT ONLY FOR THE ALLEGED VICTIMS OF THE
CHARGED OFFENSES BUT FOR AN ALLEGED VICTIM OF
UNCHARGED MISCONDUCT AS WELL.
1
Appellant was charged with indecent acts with a child under
sixteen, Manual for Courts-Martial, United States pt. IV, para.
87 (2002 ed.) (MCM), but convicted of the lesser offense of
“indecent acts with another.” MCM pt. IV, para. 90.
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Finding no error prejudicial to the substantial rights of
Appellant, we affirm.
Background
Appellant was accused of raping his then twelve-year-old
daughter, JPR, in 1987, and of committing indecent acts with his
twelve-year-old neighbor, SRS, in 2001. The indecent acts with
SRS, which were alleged in a single specification, included
“having her sit on his lap, placing his hand upon her leg,
placing his hand upon her buttocks, placing his hand upon her
groin area, kissing her on the neck, and grabbing her buttocks
and pulling her toward his groin.”
Before trial, the Government moved to admit evidence of
other acts of child molestation pursuant to Military Rule of
Evidence (M.R.E.) 414 and M.R.E. 404(b). This evidence included
testimony by Appellant’s stepdaughter, SJS, that Appellant had
molested her in 1981 when she was nine years old. The evidence
also included testimony by JPR that Appellant had committed
other acts of molestation and sodomy with her in 1987.
The military judge ruled that the uncharged acts of
molestation with SJS and JPR were admissible under M.R.E. 414 to
prove that Appellant had raped JPR. He further determined that
the uncharged acts with SJS and JPR, as well as the charged rape
of JPR, were admissible under M.R.E. 414 in order to prove that
Appellant had committed indecent acts with SRS.
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Issue I -- The M.R.E. 414 Evidence
M.R.E. 414(a) provides that “[i]n a court-martial in which
the accused is charged with an offense of child molestation,
evidence of the accused’s commission of one or more offenses of
child molestation is admissible and may be considered for its
bearing on any matter to which it is relevant.”
Before admitting evidence of other acts of child
molestation under M.R.E. 414, the military judge must make three
threshold findings: (1) that the accused is charged with an act
of child molestation as defined by M.R.E. 414(a); (2) that the
proffered evidence is evidence of his commission of another
offense of child molestation; and (3) that the evidence is
relevant under M.R.E. 401 and M.R.E. 402. United States v.
Wright, 53 M.J. 476, 482 (C.A.A.F. 2000) (requiring threshold
findings before admitting evidence under M.R.E. 413); United
States v. Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001) (“[a]s
Rules 413 and 414 are essentially the same in substance, the
analysis for proper admission of evidence under either should be
the same”). The military judge must also conduct a M.R.E. 403
balancing analysis, applying among other factors those
identified in Wright, including: “[s]trength of proof of prior
act -- conviction versus gossip; probative weight of evidence;
potential for less prejudicial evidence; distraction of
factfinder; and time needed for proof of prior conduct. . . .
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United States v. Schroder, No. 06-0657/AF
temporal proximity; frequency of the acts; presence or lack of
intervening circumstances; and relationship between the
parties.” 53 M.J. at 482 (citations omitted).
Before this Court, Appellant argues that of the five acts
charged under the specification, two of the acts -- “placing his
hand upon her leg” and “kissing her on the neck” -- did not
satisfy M.R.E. 414’s definition of an “offense of child
molestation.” In particular, they did not fall within the
Rule’s definition of “sexual act” or “sexual contact.” As a
result, the military judge erred when he admitted the uncharged
acts with SJS and JPR to prove the single specification of
indecent acts with SRS, without further qualification.
M.R.E. 414(d)-(g) defines an “offense of child molestation”
in detail:
(d) For purposes of this rule . . .
‘offense of child molestation’ means an offense
punishable under the Uniform Code of Military
Justice, or a crime under Federal law or the law
of a State that involved --
(1) any sexual act or sexual contact
with a child proscribed by the Uniform Code
of Military Justice, Federal law, or the law
of a State;
(2) any sexually explicit conduct with
children proscribed by the Uniform Code of
Military Justice, Federal law, or the law of
a State;
(3) contact between any part of the
accused’s body, or an object controlled or
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United States v. Schroder, No. 06-0657/AF
held by the accused, and the genitals or
anus of a child;
(4) contact between the genitals or
anus of the accused and any part of the body
of a child;
(5) deriving sexual pleasure or
gratification from the infliction of death,
bodily injury or physical pain on a child;
or
(6) an attempt or conspiracy to engage
in conduct described in paragraphs (1)
through (5) of this subdivision.
(e) For purposes of this rule, the term
‘sexual act’ means:
(1) contact between the penis and the
vulva or the penis and the anus, and for
purposes of this rule, contact occurs upon
penetration, however slight, of the penis
into the vulva or anus;
(2) contact between the mouth and the
penis, the mouth and the vulva, or the mouth
and the anus;
(3) the penetration, however slight,
of the anal or genital opening of another by
a hand or finger or by any object, with an
intent to abuse, humiliate, harass, degrade,
or arouse, or gratify the sexual desire of
any person; or
(4) the intentional touching, not
through the clothing, of the genitalia of
another person who has not attained the age
of 16 years, with an intent to abuse,
humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
(f) For purposes of this rule, the term
“sexual contact” means the intentional touching,
either directly or through clothing, of the
genitalia, anus, groin, breast, inner thigh, or
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United States v. Schroder, No. 06-0657/AF
buttocks of any person with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.
(g) For purposes of this rule, the term
“sexually explicit conduct” means actual or
simulated:
(1) sexual intercourse, including
genital-genital, oral-genital, anal-genital,
or oral-anal, whether between person of the
same or opposite sex;
(2) bestiality;
(3) masturbation;
(4) sadistic or masochistic abuse; or
(5) lascivious exhibition of the
genitals or pubic area of any person.
This definition provides an exclusive list of offenses that
qualify as “offense[s] of child molestation.” Thus, it does not
give the military judge the discretion to admit uncharged
misconduct in every case in which the accused has allegedly
committed indecent acts or indecent liberties with a child as
those offenses are defined by MCM pt. IV, para. 87. The charged
acts must fall within the specific definition of an “offense of
child molestation” set out in M.R.E. 414.
Appellant is correct that the acts of “placing his hand
upon [SRS’s] leg” and “kissing her on the neck,” are not within
the Rule’s definitions for “sexual act” or “sexual contact.” In
contrast, the intentional touching of the “inner thigh” with
intent to gratify the sexual desires is included as an act of
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“sexual contact” under M.R.E. 414(f), which in turn is included
in the definition of “offense of child molestation” in M.R.E.
414(d)(1). Neither the record nor the specification indicates
that Appellant touched SRS’s inner thigh. Further, there is
nothing in M.R.E. 414’s definition of “offense of child
molestation” similar to the alleged act of kissing SRS on the
neck. As a result, had these acts been charged in separate
specifications, other acts of child molestation would not be
admissible under M.R.E. 414 to prove that they occurred.
However, in this case, these acts were charged in a single
specification that included factual allegations that fit the
M.R.E. 414(f) definition of “sexual contact,” including “placing
his hand upon [SRS]’s buttocks, placing his hand upon her groin
area . . . and grabbing her buttocks.” Consequently, the
specification alleged “an offense of child molestation.”
Having determined that the indecent acts charge alleged an
offense of child molestation under M.R.E. 414, we consider
whether the military judge abused his discretion in admitting
other acts evidence under M.R.E. 414 to prove the charged
offenses. Wright, 53 M.J. at 483. The military judge made the
required threshold findings and conducted a lengthy on-record
M.R.E. 403 balancing analysis. As the military judge correctly
noted, there was direct evidence in the form of eyewitness
testimony by JPR and SJS that Appellant had committed the other
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acts of child molestation, there were no significant intervening
circumstances between the charged and uncharged acts, and with
all three girls, Appellant had abused his position as a “father
figure” to take advantage of each of the victims.2 Thus, as a
threshold matter, we conclude that the military judge did not
err in admitting evidence of uncharged misconduct with SJS and
JPR. We next address Appellant’s argument that the military
judge nonetheless erred in instructing the members on the use of
this evidence.
“The question of whether a jury was properly instructed
[is] a question of law, and thus, our review is de novo.”
United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996)
(citing United States v. Snow, 82 F.3d 935, 938-39 (10th Cir.
1996)).3
2
Appellant also takes issue with the military judge’s
application of the Huddleston v. United States, 485 U.S. 681,
690 (1988) standard, pointing out that the military judge stated
only that he found that “members could reasonably find” and not
that “the jury could reasonably find . . . by a preponderance of
the evidence” that the other acts had occurred. However, as the
recitation of part of the standard made clear, the military
judge was aware of his duty to act as a gatekeeper, and the
omission of the “preponderance of the evidence” part of the
standard is not in and of itself sufficient to rebut the
presumption that the military judge knew and applied the law
correctly. See United States v. Raya, 45 M.J. 251, 253
(C.A.A.F. 1996). With eyewitness testimony regarding each of
the alleged acts, the military judge did not abuse his
discretion in this regard.
3
The defense requested an instruction limiting the members’ use
of uncharged misconduct evidence to the purposes permitted by
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United States v. Schroder, No. 06-0657/AF
The military judge gave the following instruction on the
use of uncharged misconduct evidence:
Each offense must stand on its own and you must
keep the evidence of each offense separate. The
burden is on the prosecution to prove each and every
element of each offense beyond a reasonable doubt. As
a general rule, proof of one offense carries with it
no inference that the accused is guilty of another
offense. However, you may consider the similarities
in the testimony of [SJS] and [JPR] concerning any
alleged offensive touching with regard to the charged
offense of rape. And you may consider the
similarities in the testimony of [SRS], [SJS], and
[JPR] concerning any alleged offensive touching with
regard to the offense of indecent acts with a child.
This was the extent of the military judge’s instructions
regarding the use of SJS’s and JPR’s testimony admitted under
M.R.E. 414.
Two instructional questions are presented. First, was the
military judge required to disaggregate the instruction with
respect to the three acts within the charge that qualified as
molestation and the two acts that did not? Second, and in any
event, did the military judge err in his instruction as to how
the members could consider the M.R.E. 414 evidence?
M.R.E. 404(b). The defense request also included an instruction
that “[y]ou may not conclude the accused is a bad person and has
criminal tendencies and therefore convict him on that basis
alone.” We apply the abuse of discretion standard to a military
judge’s decision on whether to give a tailored instruction
requested by the defense. United States v. Damatta-Olivera, 37
M.J. 474, 478 (C.M.A. 1993). However, since the issue presented
concerns the accuracy of the statement of law contained in the
instructions given, and not solely the failure to give a
requested tailored instruction, we apply the de novo standard of
review.
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The first question is addressed through reference to the
Rule itself. M.R.E. 414(a) provides that evidence of other acts
of child molestation is admissible “[i]n a court martial in
which the accused is charged with an offense of child
molestation.” The Rule does not limit the use of that evidence
to qualifying acts within a specification, but rather to prove
the specification itself. Congress could have expressly limited
the Rule’s application to specific acts, but it did not do so.
This conclusion is consistent with the legal policy that informs
M.R.E. 403. If the military judge were to disaggregate the
instructions, as Appellant urges, providing a separate
instruction for each act alleged in a single specification,
there is potential for increased confusion among members. Such
a rule might also encourage the government to charge multiple
offenses in separate specifications in order to avoid such
confusion and streamline the presentation of evidence, even
where the interests of justice are better served by charging
multiple acts in a single specification. Thus, the military
judge was not required to give an instruction distinguishing
between the acts that met the definition of “offense of child
molestation” in M.R.E. 414 and those that did not.
Appellant next argues that the military judge erred by not
instructing the jury that “[e]vidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in
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United States v. Schroder, No. 06-0657/AF
order to show action in conformity therewith” in accordance with
Appellant’s request. M.R.E. 414, like its counterpart Fed. R.
Evid. 414, was “intended to provide for more liberal
admissibility of character evidence in criminal cases of child
molestation where the accused has committed a prior act of
sexual assault or child molestation.” MCM, Analysis of the
Military Rules of Evidence app. 22 at A22-37. At the same time,
there is an inherent tension between the Rule and traditional
concerns regarding convictions based on “bad character”
evidence. Such evidence has long been regarded as having the
tendency to relieve the government of its constitutional burden
to prove every element of the charged offense beyond a
reasonable doubt. Thus, the Judicial Conference of the United
States noted in response to the proposed federal rules:
[T]he new rules, which are not supported by empirical
evidence, could diminish significantly the protections
that have safeguarded persons accused in criminal
cases and parties in civil cases against undue
prejudice. These protections form a fundamental part
of American jurisprudence and have evolved under long-
standing rules and case law. A significant concern
identified by the committee was the danger of
convicting a criminal defendant for past, as opposed
to charged, behavior or for being a bad person.
Judicial Conference of the United States, Report of the Judicial
Conference on the Admission of Character Evidence in Certain
Sexual Misconduct Cases, 159 F.R.D. 51, 52 (1995).
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As recognized in Wright, procedural safeguards are required
to protect the accused from unconstitutional application of
M.R.E. 413 and M.R.E. 414. These safeguards include the
requirement that the military judge make “threshold findings”
that the evidence is relevant under M.R.E. 401 and M.R.E. 402;
the military judge’s application of M.R.E. 403; the military
judge’s preliminary application of the Huddleston standard; and
the requirement that the government give prior notice of its
intent to use M.R.E. 413(b) or M.R.E. 414 evidence. Wright, 53
M.J. at 483. The safeguards also include the requirement of
proper instructions.
In this case, the military judge’s instructions fell short.
The military judge correctly instructed the members that “[t]he
burden is on the prosecution to prove each and every element of
each offense beyond a reasonable doubt. As a general rule,
proof of one offense carries with it no inference that the
accused is guilty of another offense.” Nonetheless, the
military judge qualified this statement by informing the members
that they may “[h]owever . . . consider the similarities in the
testimony” of the three alleged victims concerning the alleged
rape and indecent acts. On its own, the instruction was
susceptible to unconstitutional interpretation: that the
members were permitted to conclude that the presence of
“similarities” between the charged and uncharged misconduct
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United States v. Schroder, No. 06-0657/AF
were, standing alone, sufficient evidence to convict Appellant
of the charged offenses.
The Military Judges Benchbook suggests that where an
instruction on propensity evidence is given, the members should
also be instructed that:
You may not, however, convict the accused of one
offense merely because you believe (he)(she) committed
(this)(these) other offense(s) or merely because you
believe (he)(she) has a propensity to commit (sexual
assault)(child molestation). Each offense must stand
on its own and proof of one offense carries no
inference that the accused is guilty of any other
offense. In other words, proof of one (sexual
assault)(act of child molestation) creates no
inference that the accused is guilty of any other
(sexual assault)(act of child molestation). However,
it may demonstrate that the accused has a propensity
to commit that type of offense. The prosecution’s
burden of proof to establish the accused’s guilt
beyond a reasonable doubt remains as to each and every
element of each offense charged.
Dep’t of the Army, Pamphlet 27-9, Legal Services, Military
Judges Benchbook ch. 7, para. 7-13-1 (2002).4
The United States Court of Appeals for the Tenth Circuit,
quoting the district court’s instruction to the jury, approved a
4
We note too the United States Army Court of Criminal Appeals’
recent decision that held that in cases where the military judge
instructs that “propensity” is a proper use of M.R.E. 413
evidence, the military judge is also required to give the
Benchbook instruction or other similar instruction that the
members “may not convict the accused solely because they may
believe the accused committed other sexual assault offenses or
has a propensity or predisposition to commit sexual assault
offenses” and “may not use Rule 413 evidence as substitute
evidence to support findings of guilty or to overcome a failure
of proof in the government’s case, if any.” United States v.
Dacosta, 63 M.J. 575, 583 (A. Ct. Crim. App. 2006).
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different formulation in United States v. McHorse, 179 F.3d 889,
903 (10th Cir. 1999):
In a criminal case in which the defendant is accused
of . . . an offense of child molestation, evidence of
the defendant’s commission of another offense or
offenses of child molestation is admissible and may be
considered for its bearing on any matter to which it
is relevant. However, evidence of a prior offense on
its own is not sufficient to prove the defendant
guilty of the crimes charged in the indictment. Bear
in mind as you consider this evidence at all times the
government has the burden of proving that the
defendant committed each of the elements of the
offense charged in the indictment. I remind you that
the defendant is not on trial for any act, conduct, or
offense not charged in the indictment.
Although the law does not mandate a formulaic instruction,
it is essential that where, as here, the members are instructed
that M.R.E. 414 evidence may be considered for its bearing on an
accused’s propensity to commit the charged crime, the members
must also be instructed that the introduction of such propensity
evidence does not relieve the government of its burden of
proving every element of every offense charged. Moreover, the
factfinder may not convict on the basis of propensity evidence
alone.
The Government argues that the military judge did not err
because he modeled his instruction on the instruction quoted in
Dewrell, 55 M.J. at 138. Dewrell was charged with raping a
young girl, but was acquitted of rape and found guilty of
indecent acts with a different girl. Id. at 132. In our
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analysis addressing the admissibility of M.R.E. 413 and M.R.E.
414 evidence, we noted that the military judge gave an
instruction stating that “you may consider any similarities in
the testimony of Ms. [P, A,] and Specialist [C] concerning
masturbation with regard to the Specification of Charge II
[rape].” Id. However, the sufficiency of this instruction was
not at issue, and it is not clear whether any prejudice could
have resulted because Dewrell was acquitted of the offense on
which the members were instructed to “consider [the]
similarities.” Id. As a result, this Court cited, but did not
analyze or validate the instruction, and the Government’s
reliance on Dewrell is misplaced.
Prejudice
Having found error in the instructions, we must determine
whether the error resulted in material prejudice to a
substantial right of the accused. “Because there are
constitutional dimensions at play, [Appellant’s] claims must be
tested for prejudice under the standard of harmless beyond a
reasonable doubt.” United States v. Wolford, 62 M.J. 418, 420
(C.A.A.F. 2006).
The members acquitted Appellant of indecent acts with a
child. MCM pt. IV, para. 87.b. defines indecent acts with a
child as having the following elements: (a) the accused
committed a certain act upon or with the body of a person; (b)
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United States v. Schroder, No. 06-0657/AF
that the person was under sixteen years of age and not the
spouse of the accused; (c) that the act of the accused was
indecent; (d) that the accused committed the act with intent to
arouse, appeal to or gratify the lust, passions, or sexual
desires of the accused, the victim, or both; and (e) such
conduct was prejudicial to good order and discipline and/or
service discrediting. In contrast, MCM pt. IV, para. 90.b.
defines the offense of indecent acts with another as having the
following elements: (a) the accused committed a certain
wrongful act with a certain person; (b) that the act was
indecent; and (c) that it was conduct prejudicial to good order
and/or service discrediting. The military judge accordingly
instructed the members on the offense of indecent acts with
another as a lesser included offense of indecent acts with a
child. Appellant contested this charge on the ground that he
did not intend sexual gratification with SRS, not on the theory
that he did not know or mistook her age. The finding of guilty
only of the lesser included offense of indecent acts with
another, which lacks the element of specific intent which
Appellant disputed at trial, suggests that the members were not
swayed to convict on this count by the instructional error
regarding the use of propensity evidence. Based on the members’
finding of guilty only on the lesser included offense of
indecent acts, the totality of the instructions provided by the
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military judge, and the detailed and credible nature of SRS’s
testimony, we are convinced beyond reasonable doubt that the
error did not contribute to Appellant’s conviction. United
States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005).
With respect to the rape of JPR, as discussed above, the
military judge properly admitted the testimony by SJS that
Appellant had committed other offenses of child molestation
about six years earlier. In addition to the eyewitness
testimony regarding charged and uncharged misconduct, the
Government’s evidence included several statements by Appellant
to various law enforcement agencies. Appellant’s statements
included an admission that he had “patted the side of [JPR’s]
breasts,” and corroborated details of JPR’s testimony regarding
the day the rape occurred. Given the strength of the
Government’s case, we are also convinced that this finding was
not swayed by the incorrect instruction.
Issue II -- Improper Argument
Trial counsel began his closing argument on the merits
stating:
Stolen Innocence, Justice Past Due.
We indicated that to you at the beginning of this
trial, and the evidence certainly has played out
exactly as we indicated to you.
This case details events lasting 20 years, three
different girls, one common ground, that this man who
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United States v. Schroder, No. 06-0657/AF
sits in this courtroom today raped, molested,
committed indecent acts with each of them.
After asking the members to set aside disbelief that an accused
who “wears the same uniform and has for some time” could commit
“unspeakable things,” trial counsel asked the members to “put
that aside and evaluate the facts fairly. We owe that much to
those three young girls.” Trial counsel returned to his theme
again near the end of the argument, stating “[t]his is somebody
we should be able to trust, but it happened and it happened
again and again and again. 20 years. Three girls. One common
theme.” Throughout his argument, trial counsel displayed a
slide show. The first and last slides contained a photograph of
the three alleged victims. In the photographs, JPR and SJS were
pictured as young girls. The slide also contained the heading
“STOLEN INNOCENCE, JUSTICE PAST DUE.” At the end of his
rebuttal argument on findings, trial counsel again made
reference to the slide, stating “Don’t forget about the victims.
Don’t forget about [SJS], [JPR], and [SRS as] they appear on
that picture. The pictures are silent, but their silence
screams for justice.”
In closing arguments on sentencing, assistant trial counsel
again displayed the slide depicting the three girls with the
same heading “STOLEN INNOCENCE, JUSTICE PAST DUE.” Assistant
trial counsel referred to the uncharged acts with SJS indirectly
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by stating that Appellant “used his position as a father,
stepfather, and a father figure to abuse young girls”; and by
again showing the slide of the three girls and stating: “Look
at those girls. That is why we are here today. They deserve
justice. They have been waiting for years for justice. They
scream for justice. Members, make sure your sentence delivers
justice to those girls . . . .”
Defense counsel did not object to this line of argument or
to the slides. As a consequence, we review the argument of
trial counsel for plain error. Rule for Courts-Martial (R.C.M.)
919(c); United States v. Haney, 64 M.J. 101, 105 (C.A.A.F.
2006).
As this Court has often stated, “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). To that end, the R.C.M.
and our case law provide that it is error for trial counsel to
make arguments that “unduly . . . inflame the passions or
prejudices of the court members.” United States v. Clifton, 15
M.J. 26, 30 (C.M.A. 1983); R.C.M. 919(b) Discussion. An accused
is supposed to be tried and sentenced as an individual on the
basis of the offense(s) charged and the legally and logically
relevant evidence presented. Thus, trial counsel is also
prohibited from injecting into argument irrelevant matters, such
as personal opinions and facts not in evidence. United States
20
United States v. Schroder, No. 06-0657/AF
v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005); R.C.M. 919(b)
Discussion.
Appellant argues that trial counsels’ argument constituted
plain error because it exhorted the members to “administer
justice for the purported victim of uncharged misconduct as well
as for the victims of the charged offenses.” In response, the
Government argues that trial counsels’ argument did not
constitute an inappropriate reference to the victim of uncharged
misconduct, or if it did, any error was harmless.
On the one hand, M.R.E. 414(a) provides that evidence of
uncharged misconduct may be considered for “any matter to which
it is relevant.” On the other hand, as noted above, there is a
risk with propensity evidence that an accused may be convicted
and sentenced based on uncharged conduct and not the acts for
which he is on trial. As a result, where M.R.E. 414 evidence is
admitted there is a need for procedural safeguards to delimit
the use of such evidence. One such safeguard is to ensure that
trial counsel does not use such evidence to unduly inflame the
members. The M.R.E. 414 safeguards could be undermined if trial
counsel’s comments were permitted to range outside the realm of
legally “relevant matters” and express a sense of outrage and
injustice regarding the victims of uncharged misconduct.
In the present case, trial counsels’ appeal to render
justice for SJS, as reflected in their arguments and the
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United States v. Schroder, No. 06-0657/AF
parallel use of her photograph with those of JPR and SRS, was
error. Trial counsels’ presentation invited members to convict
and punish Appellant for his uncharged misconduct, as opposed to
using that misconduct to inform their judgments regarding the
charged conduct. The error was also plain and obvious.
Appellant was not charged with offenses against SJS. Thus, as a
matter of law, not morality, the court was not convened to
render justice to SJS.
However, Appellant has not met his burden of establishing
plain error. United States v. Hardison, 64 M.J. 279, 281
(C.A.A.F. 2007). Improper argument does not require reversal
unless “the trial counsel’s comments, taken as a whole, were so
damaging that we cannot be confident that the members convicted
the appellant on the basis of the evidence alone.” Fletcher, 62
M.J. at 184. In both closing and sentencing argument, trial
counsels’ inappropriate allusions to SJS were limited to the
passages quoted above. Trial counsel otherwise stayed within
the range of appropriate comment throughout a lengthy findings
argument and rebuttal, covering forty and sixteen pages in the
record of trial, respectively, and a sentencing argument that
covered twelve pages in the record of trial. Moreover, the
Government’s case was strong. Among other things, the evidence
regarding SJS was already graphically and appropriately before
the members. These factors suggest that it was the evidence and
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United States v. Schroder, No. 06-0657/AF
not trial counsel’s isolated comments that caused the members to
return a guilty verdict.
On sentencing, the Government asked for twenty-to-twenty-
five years of confinement in a case where Appellant was exposed
to a life sentence. The members adjudicated a sentence of ten
years of confinement and a dishonorable discharge in a case
where the accused was convicted of raping his daughter and
committing indecent acts with another young girl. This suggests
that the members were not inflamed by trial counsel’s argument
and instead reached an independent judgment on sentencing.
Based on these factors we are confident that the improper
portion of trial counsel’s argument did not sway the findings or
the sentence.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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