United States v. Frey
2014 CAAF LEXIS 534
| C.A.A.F. | 2014Background
- Appellant was convicted by a general court-martial of sexual contact and a sexual act with a child under 12; sentenced to dishonorable discharge, 8 years confinement, forfeitures, and reduction to E‑1. The Air Force CCA affirmed; this Court granted review on one issue.
- Facts: on New Year’s Eve 2008 Appellant, staying in a friend’s basement, molested the friend’s 10‑year‑old daughter (RK); RK testified tearfully by remote video and her note to her father was admitted at trial.
- At sentencing the Government sought 10 years; defense asked only for a shorter sentence without specifying a term.
- In rebuttal, trial counsel argued members should rely on “common sense, ways of the world” to infer child‑molesters are likely serial offenders — despite no evidence Appellant had offended previously; defense objected and was overruled.
- The military judge instructed members that argument is not evidence but also stated they could apply their “knowledge of the ways of the world”; the panel imposed 8 years (less than the Government’s request).
- The Air Force CCA found counsel’s remark erroneous but harmless; this Court reviewed whether that improper sentencing argument prejudiced Appellant’s substantial rights.
Issues
| Issue | Appellant’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether trial counsel’s sentencing remark improperly urged members to infer recidivism from no evidence and thus unduly inflamed the panel | Trial counsel’s “ways of the world” comment improperly invited members to rely on speculation that Appellant was a serial child molester | The comment was improper but harmless in context of strong evidence and other proper argument | The Court: remark was improper (error) but not materially prejudicial; affirmed CCA |
| Whether the military judge’s curative instructions cured the improper argument | Objection: judge’s overruling and later instruction compounded error and allowed members to consider non‑evidentiary inference | Government: curative instructions and the overall record prevent prejudice | The Court: judge’s instructions did not cure the impropriety, but prejudice still not shown given weight of evidence |
| Standard and test for prosecutorial misconduct at sentencing | Appellant relied on Fletcher/Halpin balancing and argued prejudice under those factors | Government argued Halpin/Fletcher applied and weight of evidence favored harmlessness | The Court applied Fletcher/Halpin factors (severity, curative measures, weight of evidence) and found only the third favored the Government |
| Remedy for improper sentencing argument | Request for relief (new sentencing) because comment likely affected sentencing | Government urged no relief because panel imposed less than requested and evidence supported sentence | Held: no relief; sentence rehearing not warranted because court confident sentence based on evidence alone |
Key Cases Cited
- United States v. Marsh, 70 M.J. 101 (C.A.A.F. 2011) (standard of review for improper argument is de novo)
- United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000) (prosecutor may argue evidence and reasonable inferences; improper argument test)
- United States v. Halpin, 71 M.J. 477 (C.A.A.F. 2013) (harmless‑error test at sentencing: confidence sentence based on evidence alone)
- United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (three‑factor balancing test for prosecutorial misconduct: severity, curative measures, weight of evidence)
- Berger v. United States, 295 U.S. 78 (1935) (prosecutor must refrain from improper methods; may strike hard but not foul blows)
- United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989) (R.C.M. 1001(g) permits argument on sentencing philosophies including specific deterrence)
- United States v. Rivera, 54 M.J. 489 (C.A.A.F. 2001) ("ways of the world" permits assessing witness credibility and lay common‑sense inferences)
- United States v. Russell, 47 M.J. 412 (C.A.A.F. 1998) (members may use common sense when evaluating evidence)
- United States v. Cousins, 35 M.J. 70 (C.A.A.F. 1992) (limits on using "ways of the world" to establish unproven facts)
- United States v. Ellis, 68 M.J. 341 (C.A.A.F. 2010) (expert testimony on recidivism admissible at sentencing under R.C.M.)
- United States v. Cuento, 60 M.J. 106 (C.A.A.F. 2004) (example of lay inference appropriate for members)