United States v. Pabelona
2017 CAAF LEXIS 58
| C.A.A.F. | 2017Background
- Appellant, a Navy Chief Hospital Corpsman, married Yadira Martinez Vasquez in 2011 and received Basic Allowance for Housing (BAH) at the "with dependents" rate from May 2011–April 2013, collecting >$45,000.
- NCIS investigated after a command report alleging a sham marriage; evidence showed the couple did not live together, Appellant took leave repeatedly without visiting her, provided minimal financial support, and had significant consumer debt.
- Appellant was convicted by a mixed panel of one specification of larceny (Article 121) and one specification of signing a false official statement (Article 107); acquitted on conspiracy and obstruction charges. Sentence: 60 days confinement, reduction to E‑5, total forfeiture, and a $60,000 fine (with contingent additional confinement if unpaid).
- During government closing and sentencing argument, trial counsel made several allegedly improper remarks (e.g., suggesting use of ATM records to attend strip clubs, insinuating mental illness, calling Appellant names and a liar). Defense made no contemporaneous objections; military judge did not intervene.
- Appellant appealed to the Navy‑Marine Corps Court of Criminal Appeals, which affirmed; the CAAF reviewed whether counsel’s arguments and a jury instruction (use of "must" when describing verdict) amounted to plain error affecting substantial rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel's closing and sentencing remarks constituted prosecutorial misconduct/plain error requiring relief | Government argued remarks were within advocacy and did not taint the verdict or sentence | Pabelona argued the remarks were improper, prejudicial, and deprived him of a fair trial and sentencing | Even assuming error, no plain error: Appellant failed to show material prejudice to substantial rights given strength of evidence and lack of indicia that members relied on improper comments |
| Whether military judge's instruction using the word "must" ("if... firmly convinced... you must find him guilty") was plain error | Government implicitly defended instruction as not erroneous under precedent | Pabelona argued the phrase improperly directed members to convict | Not plain error under United States v. McClour framework; instruction did not materially prejudice rights |
Key Cases Cited
- Frey v. United States, 73 M.J. 245 (C.A.A.F. 2014) (defines improper argument review and prejudice standard for sentencing arguments)
- Rodriguez v. United States, 60 M.J. 87 (C.A.A.F. 2004) (plain error standard when no contemporaneous objection)
- Maynard v. United States, 66 M.J. 242 (C.A.A.F. 2008) (elements of plain error: error, plain, prejudicial)
- Meek v. United States, 44 M.J. 1 (C.A.A.F. 1996) (definition of prosecutorial misconduct)
- Fletcher v. United States, 62 M.J. 175 (C.A.A.F. 2005) (relief for prosecutorial misconduct requires actual prejudice to substantial rights)
- Hornback v. United States, 73 M.J. 155 (C.A.A.F. 2014) (comments require reversal when too damaging to be confident verdict was based on evidence)
- Halpin v. United States, 71 M.J. 477 (C.A.A.F. 2013) (weight of evidence can alone defeat prejudice claim)
- Berger v. United States, 295 U.S. 78 (1935) (prosecutor must not use improper methods; must refrain from foul blows)