United States v. Robinson , 76 M.J. 663 ( 2017 )

U NITED S TATES AIR F ORCE
C OURT OF C RIMINAL APPEALS
________________________
No. ACM 38942
________________________
UNITED STATES
Appellee
v.
Hank W. ROBINSON
Senior Airman (E-4), U.S. Air Force, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 15 May 2017
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Military Judge: Matthew P. Stoffel.
Approved sentence: Bad-conduct discharge, confinement for 1 month,
and reduction to E-1. Sentence adjudged 21 August 2015 by GCM con-
vened at Beale Air Force Base, California.
For Appellant: Major Mark. C. Bruegger, USAF; Major Jeffrey A. Da-
vis, USAF.
For Appellee: Major Jeremy D. Gehman, USAF; Major Mary Ellen
Payne, USAF; Gerald R. Bruce, Esquire.
Before J. BROWN, SANTORO, and HARDING, Appellate Military
Judges.
Judge SANTORO delivered the opinion of the court, in which Senior
Judge J. BROWN and Judge HARDING joined.
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PUBLISHED OPINION OF THE COURT
________________________
SANTORO, Judge:
Officer and enlisted members sitting as a general court-martial convicted
Appellant, contrary to his plea, of one specification of intentionally communi-
cating indecent language to a child under age 16 in violation of Article 120b,
United States v. Robinson, No. ACM 38942
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920b. 1 The adjudged
and approved sentence was a bad-conduct discharge, confinement for one
month, and reduction to E-1.
Appellant raises three assignments of error: (1) the military judge erred
in denying Appellant’s motion to suppress text messages found on his cellular
telephone, (2) the military judge erred in his instructions on proof beyond a
reasonable doubt, and (3) trial counsel’s sentencing argument was improper.
We disagree and affirm.
I. BACKGROUND
On 20 August 2014, Appellant exchanged a series of text messages with
his 14-year-old stepdaughter, AH. In those messages, Appellant said, “I’m
going to kiss you where it smells funny,” “Your [sic] going get a big wet one,”
and “I’m going to take a shower with u [sic].”
II. DISCUSSION
A. Motion to Suppress
The Air Force Office of Special Investigations (AFOSI) received an allega-
tion that Appellant had sexually assaulted AH. As their investigation into
that allegation was coming to its end, agents attempted to interview Appel-
lant. As will be more fully discussed below, although Appellant invoked his
right to consult with counsel and declined to speak with investigators, he
signed an Air Force Form 1364 (“Consent for Search and Seizure,” hereafter
“consent form”) and provided investigators the passcode to his cellular phone.
A subsequent search of his cellular phone revealed the text messages he ex-
changed with AH, which was the evidence supporting his conviction.
Appellant moved to suppress the text messages, arguing that his consent
was not voluntary and that agents violated his Fifth Amendment and Article
31, UCMJ, 10 U.S.C. § 831, rights when they asked him for the passcode to
his phone. The military judge denied the motion to suppress. Appellant ar-
gues that the military judge erred and also asserts two new bases for sup-
pression, neither of which was raised at trial: that AFOSI’s search exceeded
the scope of his consent and that he revoked his consent prior to the search.
1 The court-martial acquitted Appellant of one specification alleging rape of a child,
one specification alleging aggravated sexual contact with a child, and three specifica-
tions of assault consummated by a battery.
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United States v. Robinson, No. ACM 38942
We review a military judge’s denial of a motion to suppress for an abuse of
discretion. United States v. Chatfield, 67 M.J. 432, 437 (C.A.A.F. 2009) (citing
United States v. Pipkin, 58 M.J. 358, 360 (C.A.A.F. 2003)). Under this stand-
ard, we uphold the military judge’s findings of fact unless they are clearly er-
roneous or unsupported by the record. United States v. Leedy, 65 M.J. 208,
213 (C.A.A.F. 2007). We review de novo any conclusions of law. Chatfield, 67
M.J. at 437. A military judge abuses his discretion when (1) the findings of
fact upon which he predicates his ruling are not supported by the evidence of
record; (2) incorrect legal principles were used; or (3) his application of the
correct legal principles to the facts is clearly unreasonable. United States v.
Ellis, 68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66
M.J. 198, 199 (C.A.A.F. 2008)). “Further, the abuse of discretion standard of
review recognizes that a judge has a range of choices and will not be reversed
so long as the decision remains within that range.” United States v. Gore, 60
M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Wallace, 964 F.2d 1214,
1217 n.3 (D.C. Cir. 1992)).
Searches conducted pursuant to a warrant or authorization based on
probable cause are presumptively reasonable, whereas warrantless searches
are presumptively unreasonable unless they fall within a few specifically-
established and well-delineated exceptions. United States v. Hoffmann, 75
M.J. 120, 123–24 (C.A.A.F. 2016). Consent is a specifically-established excep-
tion to both the warrant and probable cause requirements of the Fourth
Amendment. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). “Property
. . . may be seized with consent consistent with the requirements applicable
to consensual searches under Mil. R. Evid. 314.” Mil. R. Evid. 316(c)(3). “Con-
sent [to search] may be limited in any way by the person granting consent,
including limitations in terms of time, place, or property, and may be with-
drawn at any time.” Mil. R. Evid. 314(e)(3). The Government bears the bur-
den of showing the applicability of the consent exception. Hoffmann, 75 M.J.
at 124.
The military judge made extensive findings of fact in his ruling on the
motion, all of which are amply supported by the record and not clearly erro-
neous.
Investigators read Appellant his Article 31, UCMJ, rights and advised
him that he was suspected of sexual assault of a child in violation of Article
120, UCMJ. 2 Appellant acknowledged his rights and requested counsel.
2 The alleged conduct occurred prior to the enactment of Article 120b, UCMJ.
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United States v. Robinson, No. ACM 38942
Agents then completed their administrative process, including the taking of
fingerprints and photographs.
Special Agent (SA) JL then asked Appellant whether the AFOSI agents
could “look through” his cellular telephone for information related to their
investigation. Appellant agreed and SA JL told him they would complete the
paperwork (the consent form) “in a little bit.” Appellant signed the consent
form shortly thereafter.
The verbal request for consent occurred approximately ten minutes after
Appellant entered the interview room and the consent form was completed
approximately eight minutes later. One minute after that, SA JL asked Ap-
pellant for the passcode for his phone so the agents would not “mess up” the
phone. Appellant provided it.
After obtaining Appellant’s passcode, SA JL gave the phone to another
agent, who extracted its data by making an electronic copy. Agents then re-
turned the phone to Appellant, who left the AFOSI offices shortly thereafter.
Later that day, Appellant visited the local area defense counsel, who notified
law enforcement that Appellant revoked any consent he had previously pro-
vided.
The military judge found that Appellant “understood he was being asked
for consent to allow law enforcement to search the contents of his phone for
evidence relating to allegations of sexual assault of his stepdaughter,” that he
understood he could withhold consent, and chose to provide consent because
he did not believe any relevant information would be found on his phone.
These facts raise two distinct analytic issues: (1) whether Appellant’s con-
sent to search his phone was valid and (2) whether, after Appellant granted
his consent, investigators permissibly asked for the passcode to that cell
phone.
1. Voluntariness of Consent to Search iPhone
Appellant argues that the military judge erred in concluding that his con-
sent was voluntarily given because, he asserts, law enforcement reinitiated
questioning after he asserted his right to counsel.
It is settled law that a request for consent to search is not an interroga-
tion, and consent is ordinarily not a “statement.” United States v. Frazier, 34
M.J. 135, 137 (C.M.A. 1992). At first blush, then, Appellant’s argument must
surely fail. However, he attempts to distinguish his case from Frazier by ar-
guing that because investigators asked several questions to ensure his re-
quest for counsel was unambiguous, asked about the whereabouts of someone
else potentially related to the investigation (after he provided verbal consent),
and that they later asked about the meaning of his tattoos, his plans for the
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United States v. Robinson, No. ACM 38942
upcoming Christmas holiday, and what his work schedule would be, these
“deceptive tactics” were the reinitiation of an interrogation. Therefore, he ar-
gues, because agents reinitiated interrogation they could not validly ask for
his consent to search.
Appellant seeks support for his position primarily from two sources: Unit-
ed States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013), and United States v.
Bondo, No. ACM 38438, (A.F. Ct. Crim. App. 18 Mar. 2015) (unpub. op.),
available at http://afcca.law.af.mil/content/opinions_cnm_2015.html. Neither
is availing.
In Hutchins, investigators gave Miranda 3 and Article 31, UCMJ, rights.
Hutchins invoked his right to counsel, the interview ended, and he was con-
fined. A week later, without having provided Hutchins an attorney, an inves-
tigator asked for and received consent to search his belongings. While
Hutchins was reading the consent form, he asked the investigator if the door
was still open to give his side of the story. The investigator told him that they
could speak again, but not that night. The investigators completed the con-
sent search. The following morning, after being re-advised of his rights,
Hutchins provided a detailed written confession.
The issue before the Court of Appeals for the Armed Forces (CAAF) was
not whether Hutchins’ consent to search was valid—the lead opinion, the
concurrence, and the dissent all assume that it was—but rather it was who
reinitiated the communication that ultimately led to the interrogation and
confession the following day. Hutchins reaffirmed Frazier’s holding (and long-
standing precedent) that a request for consent to search is not an interroga-
tion. 72 M.J. at 297; see United States v. Burns, 33 M.J. 316, 319–20 (C.M.A.
1991) (investigators may request consent to search from a suspect in custody
even after invocation of rights); see also United States v. Roa, 24 M.J. 297,
299 (C.M.A. 1987) (“Neither Article 31, UCMJ, 10 U.S.C. § 831, nor Fifth-
Amendment safeguards are infringed by a request for consent to search, as
such a request is not interrogation . . . .”).
Thus, Hutchins does not, per se, preclude a post-invocation request for
consent to search. And nothing in the facts of this case causes us to question
the military judge’s ruling that Appellant validly and voluntarily consented
to a search of his cellular telephone. The military judge’s findings of fact are
supported by the evidence, he cited the applicable law, and his conclusion is
not clearly unreasonable.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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2. Request for Passcode
Our conclusion that Appellant’s consent to search his phone was volun-
tary does not end the inquiry, as he also argues that the request for his
passcode constituted interrogation.
The Fifth Amendment provides, in part, that no person “shall be com-
pelled in any criminal case to be a witness against himself.” U.S. CONST.
amend. V. “To qualify for the Fifth Amendment privilege a communication
must be testimonial, incriminating, and compelled.” Hiibel v. Sixth Judicial
Dist. Court, 542 U.S. 177, 189 (2004).
In Edwards v. Arizona, 451 U.S. 477, 485 (1981), the Supreme Court cre-
ated a bright-line rule barring police from interrogating an accused in custo-
dy once he clearly asserts his right to counsel, unless an attorney is provided,
or “the accused himself initiates further communication, exchanges, or con-
versations with the police.” See also Mil. R. Evid. 305(e)(3)(A). The purpose of
the Edwards rule is to preserve “the integrity of an accused’s choice to com-
municate with police only through counsel . . . .” Patterson v. Illinois, 487 U.S.
285, 291 (1988).
To be sure, Edwards does not bar all post-invocation communications be-
tween police and suspects. Without running afoul of the Fifth Amendment,
police may, for example, ask for a suspect’s name, address, date of birth, and
other questions as part of the routine booking process because those ques-
tions are not reasonably likely to elicit an incriminating response. Pennsyl-
vania v. Muniz, 496 U.S. 582 (1990). What Edwards bars is “interrogation.”
The term “interrogation”
refers not only to express questioning, but also to any words or
actions on the part of the police (other than those normally at-
tendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the
suspect. . . . A practice that the police should know is reasona-
bly likely to evoke an incriminating response from a suspect
thus amounts to interrogation. But, since the police surely can-
not be held accountable for the unforeseeable results of their
words or actions, the definition of interrogation can extend only
to words or actions on the part of police officers that they
should have known were reasonably likely to elicit an incrimi-
nating response.
Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (emphasis added).
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The concurring opinion in United States v. Roa noted that:
interrogation is for the purpose of eliciting from a suspect
communications about the matter under investigation. Howev-
er, a consent to search does not of itself communicate any in-
formation about the investigated crime; and it is not a state-
ment regarding an offense, see Art. 31(b). Therefore, requesting
consent to search property in which a suspect has an interest is
not prohibited by his prior request for counsel, because Ed-
wards provides protection only as to interrogation.
24 M.J. at 301 (Everett, C.J., concurring) (emphasis added).
With respect to Appellant’s case, the military judge ruled:
[T]his court is relying upon the general proposition as reassert-
ed in Hutchins, namely, that “the decision [in Hutchins] does
not alter the ‘basic proposition’ that a request for consent to
search itself does not implicate the Fifth Amendment because
it is not considered ‘interrogation’ reasonably likely to elicit an
incriminating response.” Examining the totality of the circum-
stances in this case, this court concludes that the request for
the accused’s passcode was not a re-initiation of any interroga-
tion and did not open a more generalized discussion relating
directly or indirectly to the investigation. The agents did not
begin any express questioning nor did they use any words or
actions that the agents should have known were reasonably
likely to elicit an incriminating response from the accused. To
the contrary, their question was logically connected to the con-
sent which the accused had just formalized approximately one
minute earlier. The accused, having just read and signed the
written consent form, had full knowledge that he was providing
voluntary consent to a search of his phone.
Further, the accused’s providing of his passcode was not an
incriminating response. The act-of-production doctrine holds
that when the accused is compelled to produce incriminating
evidence, the Fifth Amendment will apply. For the production
to be testimonial, it must implicitly convey statements of fact,
such as admitting that evidence exists, that the evidence is au-
thentic or that the evidence was within the accused’s control.
The accused providing his passcode to agents was not testimo-
nial. He was not coerced into providing his passcode. No inter-
rogation tactics were applied, the agents did not raise their
voices, and they did not make any threats or promises to in-
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duce the accused into providing his passcode. While the defense
argues that Special Agent [JL’s] statement about not wanting
to mess up the accused’s phone by attempting to access it with-
out the passcode was coercive, it was merely a statement made
with full knowledge by both the maker and the receiver of the
statement that too many incorrect attempts to enter the
passcode could damage and/or wipe the contents of the phone.
Special Agent [JL] gave no indication to the accused that the
agents either had already attempted to or would attempt to ac-
cess the phone without the password. Further, the statement
was made as a request, not a demand. Additionally, the ac-
cused was aware of his rights, and in fact had just exercised his
right to counsel minutes earlier. Accordingly, Special Agent
[JL] did not violate the accused’s constitutional or Article 31
rights by asking for and utilizing the accused’s passcode in the
search of the accused’s phone.
The military judge’s ruling cited above included both findings of fact and
conclusions of law. His findings of fact are amply supported by the record and
not clearly erroneous.
These facts, then, present this issue for our resolution: Did investigators’
request for the passcode to Appellant’s cellular telephone, after Appellant
had invoked his right to counsel but also voluntarily consented to a search of
that phone, violate the Fifth Amendment where investigators had no reason
to believe that the passcode itself would be incriminating? This is a question
of law we review de novo and appears to be a question of first impression.
The Government highlights a string of cases finding no Fifth Amendment
violation when a suspect is compelled by lawful process to provide a computer
passcode. 4 We find them only marginally relevant to our analysis as the ex-
4 See generally State v. Stahl, 206 So. 3d 124 (Fla. Dist. Ct. App. 2016) (motion to
compel defendant to enter passcode into the cellular phone did not violate Fifth
Amendment); United States v. Fricosu, 841 F. Supp. 2d 1232 (D. Col. 2012) (court
order requiring defendant to produce the unencrypted contents of her laptop did not
violate Fifth Amendment); In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist.
LEXIS 13006 (D. Vt. 19 Feb. 2009) (subpoena compelling defendant to decrypt his
laptop did not offend Fifth Amendment); Commonwealth v. Gelfgatt, 11 N.E.3d 605,
612 (Mass. 2014) (defendant can be compelled to decrypt digital evidence where act
would not communicate facts beyond which defendant had already admitted). But see
United States v. Doe (In re Grand Jury Subpoena Duces Tecum), 670 F.3d 1335 (11th
Cir. 2012) (subpoena requiring defendant to produce decrypted contents of his hard
drives violated Fifth Amendment); United States v. Kirschner, 823 F. Supp. 2d 665(Footnote continues on next page)
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istence of an order to produce the information is not present in Appellant’s
case and there is no argument that Appellant’s provision of his passcode was
either compelled or mere acquiescence to an otherwise-valid order.
Two Circuit Courts of Appeals have considered similar issues. In the first,
the U.S. Court of Appeals for the Fourth Circuit held that when the defend-
ant was asked for and provided his computer password after he had invoked
his right to counsel, there was no Fifth Amendment violation because “[a]ny
self-incriminating testimony that he may have provided by revealing the
password was already a ‘foregone conclusion’ because the Government inde-
pendently proved that [he] was the sole user and possessor of the computer.”
United States v. Gavegnano, 305 Fed. Appx. 954 (4th Cir. 2009). This so-
called “foregone conclusion” doctrine has been adopted by the Supreme Court
and other federal courts in other contexts. See, e.g., Fisher v. United States,
425 U.S. 391, 408 (1976) (finding that while the act itself of complying with a
summons for documents had “communicative aspects of its own, wholly aside
from the contents of the papers produced”—including tacitly conceding the
existence and location of the documents—the matters communicated were,
under the circumstances, a “foregone conclusion” that added “little or nothing
to the sum total of the Government’s information . . . .” “Under these circum-
stances . . . no constitutional rights are touched. The question is not of testi-
mony but of surrender.”) (internal cites and quotation marks omitted); United
States v. Hubbell, 530 U.S. 27, 44-45 (2000) (distinguishing Fisher because
the act of Hubbell’s compliance itself communicated facts not known to the
Government and were not a foregone conclusion); United States v. Apple Mac
Pro Computer, 851 F.3d 238, 248 (3d Cir. 2017) (upholding order to decrypt
files because “any testimonial component of the production of decrypted de-
vices added little or nothing to the information already obtained by the Gov-
ernment” and were thus a foregone conclusion); United States v. Doe (In re
Grand Jury Subpoena Duces Tecum), 670 F.3d 1335, 1345–46 (11th Cir.
2012) (“[U]nder the “foregone conclusion” doctrine, an act of production is not
testimonial—even if the act conveys a fact regarding the existence or location,
possession, or authenticity of the subpoenaed materials—if the Government
can show with ‘reasonable particularity’ that, at the time it sought to compel
(E.D. Mich. 2010) (subpoena calling for defendant to testify to the password he utiliz-
es for his computer violated Fifth Amendment); Commonwealth v. Baust, 89 Va. Cir.
267 (Va. Cir. Ct. 2014) (motion to compel production of defendant’s passcode to un-
lock cellular phone violated Fifth Amendment, but compelling use of fingerprint to
unlock cellular phone did not violate Fifth Amendment).
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the act of production, it already knew of the materials, thereby making any
testimonial aspect a ‘foregone conclusion.’”).
In United States v. Venegas, 594 Fed. Appx. 822 (5th Cir. 2014), the de-
fendant was asked both for consent to search his cellular telephone as well as
for its password. The Fifth Circuit rejected the claim that Venegas was enti-
tled to Miranda warnings before he was asked for consent or his password.
Finding legally irrelevant whether Venegas was in custody at the time of the
request (and thus entitled to Miranda warnings), the Fifth Circuit held that
the requests for consent to search and for the phone’s passcode were “neither
testimonial nor communicative in the Fifth Amendment sense.” Id. at 827(quoting United States v. Stevens, 487 F.3d 232, 242–43 (5th Cir. 2007)).
In the unpublished decision of United States v. Bondo, a panel of this
court held that asking “a suspect for a password to a cell phone that they be-
lieve contains evidence of an offense is more than a routine incident of the
custodial relationship.” Bondo, unpub. op. at 9. In so holding, the panel
seemed to suggest, relying on Hutchins, that anything other than routine in-
cidents of a custodial relationship would be a violation of the 5th Amend-
ment. We are unpersuaded by this suggestion in Bondo for three reasons.
First, Bondo was not premised on agents’ attempt to obtain a passcode in con-
junction with validly-given consent to search. Instead, Bondo acquiesced to
agents’ request for his passcode in the face of an already-issued search au-
thorization. See, e.g., United States v. Wallace, 66 M.J. 5, 9 (C.A.A.F. 2008)
(acquiescence may not constitute free and voluntary consent). Second, Bondo
was based on the panel’s belief that Hutchins stood for the proposition that
“where [Hutchins] invoked his right to counsel and investigators later asked
to search his belongings, this action violated [his] Fifth Amendment rights
because the investigator initiated contact to further the investigation.”
Bondo, unpub. op. at 9. Third, Bondo failed to consider whether the question
at issue constituted interrogation as defined by Innis.
We reject Bondo’s expansive interpretation of Hutchins. The CAAF sup-
pressed Hutchins’ post-invocation confession because they concluded the in-
vestigator’s request for consent to search was a reinitiation of communication
and Hutchins had not been given access to counsel during his seven days of
post-invocation confinement. Therefore, applying Edwards, the confession
that resulted from the subsequent renewed interrogation was suppressed.
We thus turn directly to the question framed above: whether agents’ re-
quest for Appellant’s passcode in these circumstances constituted interroga-
tion. At the outset, we note that one might reasonably question how a request
for consent to search, made after invocation of the right to remain silent,
would not be construed as a request that the suspect provide incriminating
evidence. The reason it does not is that, as noted in Roa, such a request is
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“not interrogation,” 24 M.J. at 299, and the response itself (yes or no), “does
not of itself communicate any information about the investigated crime.” 24
M.J. at 301 (Everett, C.J., concurring).
In this case, we have a request by law enforcement for Appellant’s
passcode, made after he invoked his right to counsel. Because there was no
dispute as to Appellant’s ownership, dominion, or control over the phone, his
knowledge of the passcode did not incriminate him. Investigators had no rea-
son to believe that the passcode itself would be incriminating or communicate
any information about the crime.
Therefore, applying Roa and Innis, we conclude that the request for the
passcode did not constitute interrogation in violation of the Fifth Amend-
ment. We also conclude that under the facts of this case, unlike in Hutchins,
we need not determine whether investigators’ request for the passcode consti-
tuted a reinitiation of communication that represented a desire to open a
more “generalized discussion relating directly or indirectly to the investiga-
tion.” Hutchins, 72 M.J. at 298 (quoting Oregon v. Bradshaw, 462 U.S. 1039,
1045 (1983)). This is because here, Appellant never engaged in a post-
invocation “generalized discussion.” Consequently, there was no post-
invocation interrogation or statement that the Government sought to admit
agaist Appellant.
The military judge did not abuse his discretion in denying the motion to
suppress.
3. Arguments Not Raised at Trial
For the first time on appeal, Appellant argues that the agents’ search of
his cellular telephone exceeded the scope of his consent because he believed
they were only going to “look through” his phone, not extract and copy data
from it. He also asserts that law enforcement conducted its search after he
revoked his consent.
Prior to ruling on the motion to suppress, the military judge specifically
asked trial defense counsel to clarify the bases for the motion. See Mil. R.
Evid. 311(d)(3) (military judge may require the defense to specify the grounds
upon which the defense moves to suppress or object to evidence). Defense
counsel replied that there were only two: that Appellant’s consent to search
was involuntary and that the request for his passcode violated his Fifth and
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United States v. Robinson, No. ACM 38942
Sixth Amendment rights. 5 Failure to object constitutes waiver. Mil. R. Evid.
311(d)(2)(A). As Appellant not only had the opportunity to raise these issues,
but affirmatively told the military judge that he was basing his motion to
suppress on other grounds, he has waived appellate consideration of these
claims. United States v. Brown, 13 M.J. 810 (A.F.C.M.R. 1982).
B. Instructions on Proof Beyond a Reasonable Doubt
Prior to deliberations, the military judge instructed using the standard
Air Force reasonable doubt instruction. Appellant did not object. Appellant
now argues that this instruction violates Supreme Court precedent prohibit-
ing a trial judge from “directing the jury to come forward with a [guilty ver-
dict], regardless of how overwhelmingly the evidence may point in that direc-
tion.” United States v. Martin Linen Supply Co., 430 U.S. 564, 572–73 (1977).
The CAAF recently decided this issue adversely to Appellant. United States v.
McClour, 76 M.J. 23 (C.A.A.F. 2017).
C. Prosecution Sentencing Argument
Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appel-
lant asserts that when arguing for a sentence, the trial counsel improperly
referenced testimony about an offense of which he was acquitted. Improper
argument involves a question of law that we review de novo. United States v.
Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017). “The legal test for improper argument
is whether the argument was erroneous and whether it materially prejudiced
the substantial rights of the accused.” United States v. Baer, 53 M.J. 235, 237
(C.A.A.F. 2000). Trial counsel is entitled “to argue the evidence of record, as
well as all reasonable inferences fairly derived from such evidence.” Id. How-
ever, it is error for trial counsel to make arguments that “‘unduly . . . inflame
the passions or prejudices of the court members.’” United States v. Marsh, 70
M.J. 101, 102 (C.A.A.F. 2011) (alteration in original) (quoting United States v.
Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)); Rule for Courts-Martial 919(b) Dis-
cussion.
Appellant’s nine-year-old daughter NR testified, during findings, that Ap-
pellant repeatedly struck and choked her. She also stated that she was testi-
fying “[t]o help my father, and to change his self [sic], and to be a good per-
son.” She did not testify with respect to the single offense of which Appellant
was convicted. During presentation of sentencing evidence, Appellant told the
5As noted above, the Sixth Amendment right to counsel is inapplicable to this case
because charges had not yet been preferred. United States v. Kerns, 75 M.J. 783, 788
n.1 (A.F. Ct. Crim. App. 2016).
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United States v. Robinson, No. ACM 38942
members that he has “many flaws,” sought “outside help,” and wanted to take
every opportunity to “better [himself].”
During sentencing argument, trial counsel referenced NR’s testimony:
Members, [continuing to send AH inappropriate text messages
despite her efforts to get him to stop] speaks to his rehabilita-
tive potential. He doesn’t stop when he recognizes something
wrong. He knows it’s wrong, and he keeps doing it. When we
recommend six months of confinement, the government knew
that maximum punishment in this case is 15 years. We took in-
to consideration what he has done for the Air Force, who he is,
and this specific offense. His own nine-year-old, who came here
yesterday, said he needs help. We’re not asking you to punish
him for something that you find him not guilty of. We are ask-
ing you to sentence him appropriately for what you find him
guilty of, for his text messages and for his way of thinking.
And later:
He doesn’t care. He doesn’t care what the requirements are
here. What kind of example does that show to his own chil-
dren? It just shows complete lack of rehabilitative potential,
because while he is waiting for this court-martial, he commits
another criminal action 6 and that is why he needs six months
of confinement, so he can be put in a restrictive environment.
So he can get the help that is a nine-year-old wants him to get.
He needs help outside of the Air Force, because, clearly, what
we have to offer him is not enough.
Because trial defense counsel failed to object, we review for plain error.
Marsh, 70 M.J. at 104. To establish plain error Appellant must prove: “(1)
there was an error; (2) it was plain or obvious; and (3) the error materially
prejudiced a substantial right.” Id. (quoting United States v. Erickson, 65
M.J. 221, 223 (C.A.A.F. 2007)) (quotation marks omitted).
The military judge properly instructed the members that all the evidence
they heard was relevant when determining Appellant’s sentence. Appellant
does not challenge that instruction. In each instance noted above, trial coun-
sel referenced NR’s testimony in the context of Appellant’s rehabilitative po-
6While awaiting trial, Appellant used marijuana in violation of Article 112a, UCMJ,
10 U.S.C. § 912a, for which he received non-judicial punishment under Article 15,
UCMJ, 10 U.S.C. § 815.
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United States v. Robinson, No. ACM 38942
tential and specifically and correctly argued that the members should not
sentence Appellant for anything other than the offense of which he was con-
victed. The military judge’s instructions also directed the members to sen-
tence Appellant only for the single offense of which he was convicted.
Trial counsel’s argument was not error, plain or otherwise. The references
to NR’s testimony did not encourage or implore the members to sentence Ap-
pellant for offenses of which he was acquitted. Appellant himself raised the
issue of having flaws and seeking outside help; trial counsel’s argument
merely buttressed Appellant’s statements with other evidence in the record.
We do not believe that the trial counsel’s comments, taken in context, can
fairly be said to have unduly inflamed the passions or prejudices of the court
members.
III. CONCLUSION
The findings and sentence are correct in law and fact, and no error mate-
rially prejudicial to the substantial rights of Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings
and sentence are AFFIRMED.
FOR THE COURT
KURT J. BRUBAKER
Clerk of the Court
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