CAAF decided the Navy case of United States v. Pabelona, 76 M.J. 9, No. 16-0214/NA (CAAFlog case page) (link to slip op.), on Wednesday, February 1, 2017. Reviewing the trial counsel’s closing argument for plain error (because the defense did not object during trial), CAAF finds that even if parts of the argument were improper there is no evidence of prejudice because of the weight of the evidence supporting the convictions. Accordingly CAAF affirms the findings and sentence and the decision of the Navy-Marine Corps CCA.

Judge Sparks writes for a unanimous court.

Chief Hospital Corpsman (E-7) Pabelona was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of larceny and signing a false official statement. The convictions related to a so-called sham marriage (a marriage for the purpose of receiving military dependent benefits). Pabelona was sentenced to confinement for 60 days, restriction for 60 days, reduction to E-5, total forfeitures, and a fine of $60,000 (with a contingent 16 months of additional confinement as an enforcement provision). After considering numerous problems with the post-trial processing of Pabelona’s case, the NMCCA affirmed the findings and only so much of the sentence as provides for confinement for 60 days, reduction to E-5, total forfeitures, and a fine in the amount of $29,529.64.

CAAF granted review of two issues:

I. Prosecutors must act within the bounds of propriety. Here, in front of members, the prosecutor expressed his opinion of appellant including, “I think he’s an idiot,” opined on defense-friendly evidence, characterized appellant’s statements as “ridiculous,” vouched for government-friendly evidence, diagnosed appellant as schizophrenic, asked members to disregard defense arguments, and told members that appellant “sleeps in a bed of lies.” Was this plain error?

II. Whether the military judge erred when he instructed the members, “if based on your consideration of the evidence, you are firmly convinced the accused is guilty of the crime charged, you must find him guilty,” where such an instruction is in violation of United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 (1977), and there is inconsistent application between the services of the instructions relating to when members must or should convict an accused.

Pabelona’s defense counsel did not object to any of these asserted errors, and so CAAF reviews for plain error. “The standard for plain error review requires that: ‘(1) an error was committed; (2) the error was plain, or clear, or obvious; and (3) the error resulted in material prejudice to substantial rights.’ The burden lies with [Pabelona] to establish plain error.” Slip op. at 3 (quoting United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)).

Applying the plain error standard, and without substantive analysis of the comments at issue, Judge Sparks finds that even assuming there was error there is no evidence of prejudice:

[W]e find the weight of the evidence supporting the conviction strong enough to establish lack of prejudice in and of itself. The Government presented ample evidence at trial to support the members’ findings. . .

. . . There is no evidence that the members failed to reach their decisions based on the evidence alone. There is nothing to indicate material prejudice to Appellant’s substantial rights.

Slip op. at 4-5. The court similarly – and summarily – rejects the second issue, with a citation to last week’s decision in United States v. McClour, 76 M.J. 23 (C.A.A.F. Jan. 24, 2017) (CAAFlog case page).

Case Links:
NMCCA’s opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

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