United States v. Sewell
2017 CAAF LEXIS 59
| C.A.A.F. | 2017Background
- Sgt. Todd D. Sewell was convicted at a general court-martial of six indecent-act specifications (including masturbating in victims' presence and sending unsolicited photos of his penis) and one assault-with-intent-to-commit-rape specification; he was acquitted of ten other specifications.
- Convictions rested on victim testimony, 118 recovered images from Sewell's phone (nine admitted at trial), and Sewell's inculpatory CID statements placing him at scenes in compromising circumstances.
- Defense challenged multiple trial-counsel arguments as prosecutorial misconduct (improper propensity inferences, personal vouching, inflammatory language, facts not in evidence); the military judge sustained objections to two specific propensity remarks and instructed the panel to disregard them.
- The Army Court of Criminal Appeals affirmed (with credit for pretrial confinement); CAAF granted review on whether trial counsel’s arguments amounted to prosecutorial misconduct requiring relief.
- CAAF found some of trial counsel’s remarks improper but, applying Fletcher factors, held any error non-prejudicial because the evidence supporting convictions was strong and the panel’s mixed verdicts indicated it followed instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel committed prosecutorial misconduct in findings argument | Prosecutor’s repeated propensity statements, vouching, inflammatory labels, and statements of belief prejudiced Sewell’s right to fair trial | Trial counsel’s errors were either cured by the military judge’s instruction or were harmless given strong evidence; appellant must show prejudice for unobjected-to remarks | Some statements were improper, but no material prejudice; convictions affirmed |
| Whether curative instructions cured alleged misconduct | MJ’s instruction to disregard two propensity statements was insufficient given pervasive improper argument | The MJ’s instructions plus mixed verdicts and trial evidence show the panel relied on evidence, not improper argument | Court accepted cure as adequate in context; harmfulness outweighed by evidence |
| Standard of review for unpreserved remarks | Many remarks unobjected to; appellant asks for relief under plain-error / Knapp/Fletcher framework | Government urges plain-error burden and deference to MJ rulings where objections were made | CAAF applied de novo review for preserved errors and plain-error analysis for unpreserved; required showing of material prejudice |
| Whether mixed verdicts indicate panel followed instructions | Appellant argues mixed findings do not prove impartial deliberation given pervasive misconduct | Government argues mixed verdicts show panel discriminated between stronger/weaker proofs and heeded instructions | CAAF relied on mixed verdicts as supporting conclusion that convictions rested on evidence alone |
Key Cases Cited
- Knapp v. United States, 73 M.J. 33 (C.A.A.F. 2014) (standard for reviewing preserved/unpreserved prosecutorial error)
- Fletcher v. United States, 62 M.J. 175 (C.A.A.F. 2005) (three-factor test for prejudice from improper argument: severity, curative measures, weight of evidence)
- Young v. United States, 470 U.S. 1 (1985) (prosecutorial misconduct principles)
- Frey v. United States, 73 M.J. 245 (C.A.A.F. 2014) (de novo review of prosecutorial-misconduct claims)
- Hornback v. United States, 73 M.J. 155 (C.A.A.F. 2014) (prosecutor overstep; confidence convictions based on evidence alone)
- Baer v. United States, 53 M.J. 235 (C.A.A.F. 2000) (limits on arguing reasonable inferences from evidence)
- Burton v. United States, 67 M.J. 150 (C.A.A.F. 2009) (improper propensity inferences)
- Schroder v. United States, 65 M.J. 49 (C.A.A.F. 2007) (plain-error burden for unpreserved objections)
- Halpin v. United States, 71 M.J. 477 (C.A.A.F. 2013) (weight of evidence can make prejudice unlikely)
- Bungert v. United States, 62 M.J. 346 (C.A.A.F. 2006) (plain-error three-prong test)
- Simtob v. United States, 901 F.2d 799 (9th Cir. 1990) (curative instruction adequacy in context of inflammatory argument)