CAAF will hear oral argument in the Air Force case of United States v. Frey, No. 14-0005/AF (CAAFlog case page), on Monday, February 24, 2014. The court will review the propriety and prejudicial effect of a Government sentencing argument with the following issue:

Whether the Air Force court erred in finding trial counsel’s presentencing argument was harmless error where trial counsel insinuated that appellant will commit future acts of child molestation.

Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of officer members, of one specification of aggravated sexual contact and one specification of rape of a child who had not attained the age of 12 years, both in violation of Article 120 (2006). He was sentenced to reduction to E-1, confinement for 8 years, and a dishonorable discharge.

During the sentencing phase of the court-martial the Government presented only “a personal data sheet, a picture of [the child victim] with her mother, and Appellant’s enlisted performance reports.” App. Br. at 9. But then during the Government argument on sentence, the trial counsel stated:

What is the sentencing process trying to help here? Are we trying to focus more on helping a child molester get out of jail, a child molester who refuses to admit and apologize for his actual crimes he was found guilty of, or are we trying to fairly and justly show that the Air Force will not tolerate child molesters, that we want to protect young girls form the same fate and that we are trying to protect and comfort [RK] for everything that he has put her through?

Gov’t Br. at 3-4. The Defense did not object to this argument by the prosecution, and during the Defense argument the defense counsel “emphasize[d] [Appellant’s] low recidivism risk as a theme throughout his sentencing argument, arguing that the lack of pretrial confinement indicated a lack of recidivism risk and augured in favor of limited confinement: ‘And you do have to weigh, okay, if he’s been out there for 18 months and nothing like this has occurred again, is a lengthy prison sentence of 10 years really appropriate?'” Gov’t Br. at 4 N.1. The Government was permitted a rebuttal sentencing argument, and the trial counsel pounced:

Now, the Defense Counsel said, ‘there’s no evidence before you that he’s ever done anything like this before.’ And there is no evidence before you. But think what we know, common sense, ways of the world about child molesters.

Gov’t Br. at 3. That’s when the Defense objected. The trial counsel responded, “I’m just arguing the ways of the world, Your Honor.” App. Br. at 3. And the military judge overruled the Defense objection, permitted the trial counsel’s argument, and later emphasized in his instructions to the panel that arguments by counsel are not evidence.

Predictably, the Air Force CCA determined that the Government counsel’s argument was error, finding “that this argument went beyond the evidence of record and any reasonable inference that can be derived from it, including the appellant’s unsworn statement.” United States v. Frey, No. 37759, slip op. at 2 (A.F.Ct.Crim.App. Jul. 3, 2013) (link to unpub. op.). But the court found no prejudice by concluding that the improper argument was just a brief part of the whole argument, that the improper argument was rebutted by the Defense, and that the improper argument was “further undermined by the curative instruction provided to the military judge.” Id., slip op. at 6. CAAF then granted review.

Appellant’s argument is straightforward:

Trial counsel inflamed the passions of the panel in the worst way possible – arguing that Appellant was a recidivist and only lengthy confinement will protect other children from Appellant, all after admitting there was no evidence to support such an argument.

App. Br. at 4.

The facts certainly indicate that the trial counsel based the argument about recidivism, and the generalization about child molesters (accurate or not), not on any evidence that was introduced but instead on a direct and improper appeal to the members to ignore the lack of evidence and base their sentencing decision on their own internalized fears and imaginations. But what the facts indicate, the Government’s brief practically embraces:

Appellant seizes upon the military judge’s and trial counsel’s use of the time honored admonition that members should utilize their “common sense and knowledge of ways of the world” in evaluating evidence as a hallmark of impropriety (App. Br. at 7-8). It is anything but.

Gov’t Br. at 19. When I noted CAAF’s grant in this case in a post last November, I was curious about how the parties would approach this issue in the context of the common instruction to members that they are to use their common sense and their knowledge of human nature and the ways of the world when evaluating the evidence in a case. Like juries, court-martial panels are rightly reminded that their common sense belongs with them in the deliberation room. But common sense is used to evaluate legally competent evidence, not as a substitute for that evidence. The magic words “I’m just arguing the ways of the world, Your Honor,” can’t excuse the fact that there was no evidence about recidivism by “child molesters.” More than a page full of citations in the Government’s own brief – discussing application of common sense to evidence actually admitted during the trial – emphasizes this point. See Gov’t Br. at 19-20.

Despite such discussion, the Government doesn’t find some previously overlooked evidentiary basis for the argument (though it does argue, on page 12 of its brief, that the Defense argument opened the door for a Government comment about recidivism). Rather it goes so far as to disclaim any evidentiary basis, purpose, or effect:

Here the military judge instructed the members that arguments by counsel are not evidence. . .

Gov’t Br. at 20. And yet it’s the Government’s position that:

There was neither error nor prejudice in trial counsel’s stray reference that members utilize their “common sense and knowledge of the ways of the world” in evaluating Appellant’s rehabilitative potential in light of his serious child sex assault convictions.

Gov’t Br. at 7 (emphasis added). So while acknowledging that the trial counsel’s sentencing argument lacked an evidentiary basis, and disclaiming any evidentiary purpose of effect, the Government insists that there was no error in the first instance. Considering that the Government didn’t appeal the AFCCA’s finding of error, CAAF is likely to be unamused (if not outright hostile) to this position. See, for example, United States v. Erickson, 65 M.J. 221, 224 N.1 (C.A.A.F. 2007) (link to slip op.) (discussing the law of the case doctrine when neither party appeals the intermediate court’s finding of plain and obvious error in an improper sentencing argument).

Rather, CAAF will focus on whether the improper argument caused material prejudice to a substantial right of Appellant, and the burden of persuasion in that determination is somewhat under-analyzed in the parties briefs. Many military cases about improper argument by Government counsel involve situations where the Defense failed to object, and so the argument is tested for plain error (where Appellant has the burden to prove prejudice). But in this case there was a Defense objection, placing the burden on the Government to prove harmlessness. And that may be an unbearable burden, considering that the military judge overruled the objection, gave no contemporaneous limiting instruction, and then gave a rather weak instruction to the members at the end:

Court members, let me begin by reminding you of the instruction I gave you during findings which apply equally here, that when counsel make argument, that is not evidence . . . You are to rely on the evidence admitted in the court and your recollection of that evidence. . . . A few statements Trial Counsel made in particular that most sexual assaults occur by family or friends is not before you in evidence, again, put that in context of whatever knowledge of the ways of the world you have. But that specific assertion of fact is not evidence.

Gov’t Br. at 18 (omissions in original). This instruction doesn’t explain that common sense is not a substitute for evidence, and actually goes in the opposite direction. By informing the panel that the Government’s argument involved things “not before you in evidence,” while simultaneously inviting the panel to put that argument “in context of whatever knowledge of the ways of the world you have,” the judge practically pushed the horse through the barn door opened by the trial counsel.

CAAF’s short opinion reversing the conviction in United States v. Riveranieves, 54 M.J. 460 (C.A.A.F. 2001) (link to slip op.), is instructive. In Riveranieves, the defense objected to the trial counsel’s misstatement of evidence, but the judge overruled the objection. CAAF found prejudice in the circumstances and the fact that “there was no immediate curative instruction given by the trial judge as to the prosecutor’s erroneous argument, nor a timely one specifically repudiating his asserted view of the evidence in this case.” Id. at 462 (citation to record omitted). So too in this case.

The CCA relied on the military judge’s instruction as a basis for its finding of harmlessness, and so does the Government in its brief. See Gov’t Br. at 18. A finding of deficiency in the timing or content of this instruction will likely lead to a finding of prejudice and a new sentencing hearing for Appellant. Whether CAAF is leaning in that direction may well become clear during the oral argument next week.

But another thing to look for is whether CAAF might go beyond the Defense objection at trial and also consider the trial counsel’s initial sentencing argument that referred to Appellant as “a child molester who refuses to admit and apologize for his actual crimes he was found guilty of.” Gov’t Br. at 3. The CCA’s decision discussed the test for review of such argument and some of the facts at issue:

An accused’s refusal to admit guilt after being found guilty may be an appropriate factor for the sentencing authority’s consideration of his rehabilitation potential, but only if a proper foundation has been laid. United States v. Paxton, 64 M.J. 484, 487 (C.A.A.F. 2007) (citation omitted). The predicate foundation can be met if the accused has made an unsworn statement and “has either expressed no remorse or his expression of remorse can be arguably construed as being shallow, artificial, or contrived.” Id. (quotation marks and citation omitted). Whether or not the comments are fair must be resolved when viewed within the context of the entire court-martial. United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001).

In his unsworn statement, the appellant told the panel he was disappointed in the outcome of the trial but respected their decision. He then apologized to RK and her family and stated, “It was never my intention for any of this to ever happen at all.” In his sentencing argument, the trial counsel stated, “What does that say for how he will act in the future if 18 months . . . later he still can’t admit to it?”

United States v. Frey, No. 37759, slip op. at 5. But the CCA’s opinion doesn’t make a clear finding about whether there was an adequate foundation for the trial counsel’s argument or whether it was plain and obvious error.

CAAF’s grant of review is limited to the question of prejudice, and the court might constrain its discussion during next week’s argument to that issue. But the shadowy existence of a second error only steepens the hill that the Government must climb if it hopes to avoid a remand for a sentence rehearing.

Case Links:
AFCCA opinion
Blog post: CAAF to consider an Air Force prosecution sentencing argument
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview

11 Responses to “Argument Preview: United States v. Frey, No. 14-0005/AF”

  1. Nathan A. White says:

    Zach, I don’t think the judge gave a “weak” curative instruction, he gave an implicit endorsement of sorts to the trial counsel’s logic, or what I would call a “compounded” instruction in that he compounded the error.  Like you said, he pushed the horse through the barn door by saying if, in essence, “what trial counsel said isn’t evidence, but if makes sense to you, then use it in your deliberations.”  So, if you think ALL child molesters are recidivists and the only way to prevent recidivism is to keep them off the streets, then by all means, consider that in your deliberations.  The Air Force Court rightly found the argument to be error, but glazed over the trial judge’s compounding of the error, which means they approached the case without the proper context. 
    However, the instruction is only half of the military judge’s error.  His “curative” instruction came at the end of argument.  At the time of defense objection, when trial counsel said she was just “arguing the ways of the world,” defense counsel stated “your honor, this is not ways of the world,” and the military judge promptly overruled the objection.  This gave the lay panel the impression that the trial counsel was CORRECTLY arguing ways of the world common sense and then later the military judge CONFIRMED this with his “curative” instruction.  This is where the prejudicial effect lies.  It’s one thing for trial counsel to make assertions not backed up by the evidence, but it’s a lot worse when the military judge effectively blesses those assertions in the form of rulings and instructions.  As mentioned above, the CCA gave short shrift to this and focused entirely on trial counsel’s argument.  Without considering how the man in the black robe handled this issue, the context is lacking.  When the man in black says it’s okay, the lay panel is sure to listen a lot more than when it’s just one of the adversaries making argument.
    Re: prejudice, hopefully it will come out in argument that this was an unusual case.  There was no premeditation, grooming, etc., before the charged misconduct.  This was an unusual series of events that occurred during one night.  Given the factual background and Frey’s decent duty performance, eight years and a DD was a pretty stiff sentence.  I raised sentence severity at the CCA level based in part on the fact that trial counsel’s argument contributed to an overly severe sentence.  Given the facts, Frey’s duty performance, the government’s limited sentencing case, this is a case where trial counsel’s argument cum the military’s judge’s ruling and “curative” instruction raises doubt as to whether the erroneous argument had no influence on the sentence.
    Re: the shadowy existence of a second error, I didn’t raise this before either court because the recidivism argument was more compelling.  Trial counsel’s hyperbolic statement in her initial argument was standard fare from a junior counsel and probably harmless under a plain error analysis.  Perhaps I should’ve referenced it in the context of the granted issue as sort of a cumulative effect analysis, but as I mentioned above, it was the military judge’s ruling and instruction that exacerbated the situation.  I hope it comes out in argument what was raised in the supplement to the petition that this is a case about erroneous argument compounded by an erroneous instruction.
    We’ll see how it plays out, but the takeaways are for both practitioners and judges alike.  Practitioners should object to preserve the error (pretty obvious), but more importantly, trial judges should be careful when trial counsel – especially junior ones – make arguments unsupported by the record and how to handle them through proper, curative instructions.

  2. phil cave says:

    Good job as always.
    Your point about the MJ compounding the error is well taken.
    One of the things I’ve noticed in a lot ROT’s these days is the other error of speaking objections and speaking/arguments on the objection in front of members.  That’s something that counsel and MJ”s should be attuned to also.  The compounding could have partly been avoided if the objection – a very serious one at that point – were addressed in a 39A.

  3. Zachary D Spilman says:


    As my barn door comment indicates, I agree. But because the case is about improper argument and not instructional error, I think the better focus is the judge’s failure to give an adequate instruction rather than the additional errors within the instruction that was given. Riveranieves (not cited in any of the briefs, unfortunately) is instructive in this regard. 

    You do highlight a bunch of reasons why it would be foolish for Government counsel to rely on the instruction as given when presenting its argument next week. Better perhaps to focus on the other two factors identified by the CCA: this being a small part of the total argument, and the Defense rebuttal. 

    As for objections to argument, I’ve experienced a general dislike of such objections among uniformed attorneys. It’s somehow seen as impolite.

  4. Charles Gittins says:

    Zack:  I never hesitated to object during opening statement or during argument.  I tried to make sure I was right so I’d get a “sustained” (followed by my request for appropriate limiting instruction), but protecting the record is far more imprtant than being polite to opposing counsel arguing improperly.  I particularly liked objecting to TC argument in opening statement (“This case is about greed, avarice, etc”); Objection. Improper argument in opening statement.  Sustained.  Knock TC off their game to start the trial.

  5. Tami says:

    Another egregious MJ error that played a large role in this was allowing the TC to get a second argument in.  The Government has no burden of proof on sentencing, so there shouldn’t be ANY “rebuttal” argument on sentencing like there is on findings.  I saw this a lot early in my career, MJs allowing TCs to get a second bit at the apple on sentencing.  Until finally, one MJ asked the TC to point to the RCM that says TCs get to argue on sentencing a second time–couldn’t be done.  DCs should always make it a point to object to a TC getting a second argument on sentencing, and MJs shouldn’t allow TCs to get 2, when DCs only get 1.  In this case, the TC’s second argument reinforced the “child molesters always reoffend, so he will reoffend” theory. 

  6. Zachary D Spilman says:


    I don’t dispute that you’ve seen the Government get the last word on sentencing, but I think R.C.M. 1001(a) is unambiguous:

    (D) Argument by the trial counsel on sentence.

    (E) Argument by the defense counsel on sentence.

    (F) Rebuttal arguments in the discretion of the military judge.

    That’s arguments plural, as in both the Government and then the Defense get another shot.

    My read of the briefs is that the Defense did get the last word in this case. For instance, page 3 of Appellant’s brief discusses “rebuttal argument” by the trial counsel (when the “I’m just arguing the ways of the world, Your Honor” comment was made) and then a “surrebuttal argument” (presumably made by the defense counsel) before instructions.

  7. Zachary D Spilman says:


    The last time I objected to Government argument during the opening (in a pre-opening 39(a), no less), the judge said something to the effect of “they get a little leeway, don’t you think?” 

    Fortunately, the members weren’t so charitable.

  8. Christian Deichert says:

    For some reason, the Air Force just loves rebuttal and surrebuttal sentencing arguments; you don’t get ’em with every judge, but you apparently get ’em often enough.  One of several nuances that made me shrug my shoulders over my time teaching at AFJAGS.  (Another would be creating new court-martial panels every time they take a case to court, rather than having standing panels.)

  9. Frustrated JAG says:

    I don’t generally post on here but…
    First, to the “shadowy existence of a second error” as Nathan A. White puts it, I would encourage you all to look at United States v. Paxton, 64 M.J. 484 (CAAF 2007). 
    “A sentencing argument by trial counsel which comments upon an accused’s exercise of his or her constitutionally protected rights is “beyond the bounds of fair comment.”  However, an accused’s refusal to admit guilt after findings may be an appropriate factor for the member’s consideration in their sentencing deliberation on rehabilitation potential but only if a proper foundation has been laid.  “As a general rule, the predicate foundation is that an accused has either testified or has made an unsworn statement and has either expressed no remorse or his expression of remorse can be arguably construed as being shallow, artificial, or contrived.” Id. at 487 (internal citations ommitted).
    Once Appellant opened the door with his contrived unsworn statement, it was certainly permissible for TC to comment on his failure to take responsibility.  I would like to think that it was thorough research and the realization that this was a non-issue that led to it not being raised before AFCCA, but apparently I would be wrong…
    Secondly, the suggestion that raping a child isn’t worth 8 years because of Frey’s “decent duty performance” is somewhat disgusting.  His actions took 8 years of that little girl’s childhood away from her (victim was 10 at the time of the offenses) and the members justly took that time from him.  If anything, his sentence was lenient.  I certainly can’t predict what CAAF will do, but hopefully reason will win out and they will realize that it is wildly paternalistic and egotistical to believe that 14 words in an ATC’s sentencing argument had any measurable impact on the members that the evidence of Frey’s egregious crimes didn’t already have.

  10. Zachary D Spilman says:

    Gee Frustrated JAG, are you saying that the following excerpt from the CCA’s opinion (which is part of my preview above) shows either “no remorse” or something “shallow, artificial, or contrived”? 

    In his unsworn statement, the appellant told the panel he was disappointed in the outcome of the trial but respected their decision. He then apologized to RK and her family and stated, “It was never my intention for any of this to ever happen at all.”

    And let’s put this into even further context, shall we? How about Appellant’s position in this case, which wasn’t to challenge the girl’s report (something he undoubtedly could have done, and thereby put her through an even worse ordeal), but was instead to try and explain that he didn’t realize what he was doing. Also from the CCA’s opinion:

    The police were called and the appellant was interviewed by two civilian detectives under rights advisement. In a taped interview, he initially denied doing other than tickling RK on her sides and stomach. He later said “I don’t know if I did this or not. . . . maybe I did, and if I did, I feel so horrible for that girl.” Minutes later, the appellant said, “I guess I did . . . I really don’t remember . . . there are times when I wake up next to my fiancée . . . and I’ll roll over and I’ll rub her back . . . . Maybe I thought [my fiancée] was there.” He admitted RK had no reason to lie and, if she said it happened, than it must have. The appellant said he thought his fiancée was next to him and, as he often rolled over and put his hand on her stomach, he could have done so with the child. He then admitted he touched her vaginal area under her clothes and may have penetrated her. He claimed to have then realized it was not his fiancée, and removed his hand.

    United States v. Frey, No. 37759, slip op. at 5 (A.F.Ct.Crim.App. Jul. 3, 2013) (link to unpub. op.) (omissions in original).

    Now perhaps you consider this totally unbelievable. Perhaps you know more about the facts of the case than the rest of us. Whatever. But you can’t say that he expressed “no remorse.” And the trial counsel’s opening argument (the first quoted section in my argument preview) is hardly a “comment on his failure to take responsibility” (your words). It’s far more than that, and it’s objectionable on numerous levels. 

    But let’s get real for a second:

    1. You say that:

    His actions took 8 years of that little girl’s childhood away from her (victim was 10 at the time of the offenses) and the members justly took that time from him. If anything, his sentence was lenient. 

    I also heard Government Appellate Counsel make that argument to CAAF. But Appellant faced a max sentence of LWOP (in a case that could have been referred capital), and the Government asked for a mere ten years. Consider this for a moment. The prosecutors in this case – the people who brought the girl and his father to this trial and who knew the case better than anyone – they asked for a mere ten years of confinement. Of that, Appellant got eight. For you to now feel that “If anything, his sentence was lenient,” is incredibly myopic. 

    2. There were innumerable ways the Government could have made a recidivism (or danger to the community, or whatever) argument in this case. For starters, it could have presented some evidence of this issue. That’s hardly difficult; presenting evidence is what a prosecutor does for a living. It also could have stuck to the facts of the case; perhaps by arguing that Appellant’s story that he didn’t realize what he was doing is a basis to fear that he might do it again. But “just arguing the ways of the world,” is either pathetically amateurish or deliberately unethical.

    3. Whether the trial counsel’s improper argument was 14 words or 1,400 words, the potential prejudice is the same: The members were encouraged to use their own fears and preconceived notions, and not the evidence, to determine the sentence. This isn’t some speculative fear; a significant purpose of the voire dire and all of the instructions is to keep members from doing exactly this. But in the last moments of this trial, the trial counsel bluntly encouraged them otherwise, and then the military judge didn’t fix it (and arguably made it worse).

    Look, the Defense objected, and the objection was overruled, and that was error that advantaged the Government. So the Government has the burden to prove that its erroneously-gained advantage was harmless. That’s how justice works in this country.

    Your argument about the heinous nature of this crime in this case is well taken, and it would have been a great point at trial. Had the objection been sustained, and the trial counsel done what appellate gov’t counsel suggested to CAAF (put a picture of the girl and a picture of the note in front of the members, and then sat down), we wouldn’t be here and Appellant probably would have gotten more than the ten years. But that’s not what happened.

    In fact, the Government insists that there was no error at all. 

    You write:

    hopefully reason will win out and they will realize that it is wildly paternalistic and egotistical 

    Well, the first step in fixing a problem is admitting that you have it. By refusing to even acknowledge the error in this case, the Government abandons its role as “the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).


  11. Nathan A. White says:

    Zach covered everything except he didn’t take credit for the second error issue.  He noted that in his original preview.  Like I said, I didn’t raise it because there was no objection and it would have been plain error and the generic “argument is not evidence” instruction would probably render the error harmless.  As I said before, perhaps I should have, but I focused more on the argument that was objected to and exacerbated by the MJ.
    One final thought – if anyone is going to post anonymously, try not to make what could be perceived as ad hominem attacks on those that do not post anonymously.  It’s not a fair fight.