United States v. Hornback, 2014 CAAF LEXIS 248

Appellant was convicted by special court-martial of using spice, signing a false official statement, and larceny; acquitted of other specifications.
Eleven Government witnesses testified; initial witnesses described spice use while later witnesses elicited extensive improper testimony despite sustained objections.
Military judge conducted multiple Article 39(a), UCMJ sessions to address admissibility and narrowed scope of evidence; issued curative instructions.
Trial counsel repeatedly elicited improper character and other acts evidence; the judge sustained objections and instructed the panel to disregard erroneous testimony.
The majority held prosecutorial misconduct occurred but was not prejudicial under Fletcher factors; conviction affirmed due to sufficient evidence and curative actions.
Dissent argued the misconduct was pervasive and prejudicial, warranting rehearing or reversal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did prosecutorial misconduct occur?	Hornback: misconduct occurred.	Hornback: misconduct occurred but cured.	Yes, misconduct occurred.
Was the misconduct prejudicial to substantial rights?	Prejudice shown under Fletcher factors.	No prejudice; curative measures effective.	Not prejudicial; conviction affirmed.
Appropriate remedy for misconduct?	Rehearing warranted due to pervasive misconduct.	No rehearing needed; intact evidence supports conviction.	No rehearing; judgment affirmed.

United States v. Fletcher, 62 M.J. 175 (C.A.A.F.2005) (prosecutorial misconduct factors and prejudice analysis)
United States v. Thompkins, 58 M.J. 43 (C.A.A.F.2003) (presumed compliance with judge instructions; curative measures considerations)
United States v. Meek, 44 M.J. 1 (C.A.A.F.1996) (definition of prosecutorial misconduct; norms violation)
Donnelly v. DeChristoforo, 416 U.S. 637 (U.S. Supreme Court 1974) (due process fairness and impact of improper conduct)