                       UNITED STATES, Appellee

                                    v.

                  Kelly S. ERICKSON, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 06-0715

                         Crim. App. No. 35495

       United States Court of Appeals for the Armed Forces

                       Argued February 27, 2007

                        Decided June 22, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and RYAN, J., joined. STUCKY, J., filed a
separate opinion concurring in the result, in which BAKER, J.,
joined.

                                 Counsel

For Appellant: Captain Griffin S. Dunham (argued); Lieutenant
Colonel Mark R. Strickland and Major David P. Bennett (on
brief).

For Appellee: Major Kimani R. Eason (argued); Colonel Gerald R.
Bruce, Lieutenant Colonel Robert V. Combs, and Major Matthew S.
Ward (on brief).

Military Judge:   Rodger A. Drew Jr.


       This opinion is subject to revision before final publication.
United States v. Erickson, No. 06-0715/AF

     Judge ERDMANN delivered the opinion of the court.

     Staff Sergeant Kelly S. Erickson was tried at McChord Air

Force Base (AFB), Washington, by a military judge sitting as a

general court-martial.   He was charged with numerous sexual

offenses involving his minor daughters as well as subornation of

perjury and violating a no-contact order.   Under a pretrial

agreement, Erickson entered guilty pleas to the sexual offenses

and a plea of not guilty to the perjury charge.   The military

judge accepted Erickson’s guilty pleas and found him guilty of

the lesser included offense of obstruction of justice under the

perjury charge.

     Erickson was sentenced to reduction to airman basic (E-1),

dishonorable discharge and confinement for life with eligibility

for parole.   The sentence was approved by the convening

authority with mandatory forfeitures deferred and waived for the

benefit of Erickson’s family.   The United States Air Force Court

of Criminal Appeals affirmed the findings and sentence.    United

States v. Erickson, 63 M.J. 504 (A.F. Ct. Crim. App. 2006).

     “When arguing for what is perceived to be an appropriate

sentence, the trial counsel is at liberty to strike hard, but

not foul, blows.”   United States v. Baer, 53 M.J. 235, 237

(C.A.A.F. 2000).    We granted review in this case to determine

whether trial counsel committed plain error during his

sentencing argument by comparing Erickson to Hitler, Saddam



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United States v. Erickson, No. 06-0715/AF

Hussein, and Osama bin Laden, and describing him as a demon

belonging in hell.   We conclude that Erickson has failed to

establish plain error and therefore affirm the decision of the

Court of Criminal Appeals.

                             BACKGROUND

       Erickson admitted to a number of sexual offenses that

occurred between 1996 and 2002, including the rape of his older

daughter and rape, sodomy, indecent acts, indecent liberties and

using indecent language with his younger daughter.   During

sentencing, the Government introduced Stipulations of Expected

Testimony from the two girls as evidence in aggravation.    The

older daughter stated that when she was about eight years old,

Erickson would kiss and fondle her, put his hands down her pants

and penetrate her with his fingers.   On one occasion he had sex

with her after offering her gifts.    He later told her not to

tell anyone about his conduct or he would go to jail.

       Erickson abused the younger daughter starting when she was

five and continuing until she was ten.    He had sex with her as

often as several times a day; had oral sex with her; attempted

anal sex; fondled and kissed her; took showers and baths with

her; penetrated her with a dildo; showed her pornographic

videos; placed her in sexual situations with her brother and the

family dog; took naked pictures of her; and had phone sex with

her.



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United States v. Erickson, No. 06-0715/AF

     At the sentencing phase of Erickson’s court-martial, trial

counsel introduced his sentencing argument to the military judge

with the following remarks:

     What is evil? It’s a dramatic question. It is not a
     concrete question and it defies a scientific answer.
     It likely means something different to virtually
     everyone. History, current events, are replete with
     examples of people who have been argued who are the
     embodiments of evil, Adolph Hitler, Saddam Hussein,
     Osama bin Laden. Men who have killed innocent women
     and children, poisoned the world with their rage and
     their fanaticism. Well, as awful as those men and
     those actions are there is an advantage, frankly, to
     evil that eventually becomes so open and notorious.
     You can see it coming. You can prepare your defenses.
     It has been quipped countless times that the greatest
     trick the devil ever performed was convincing the
     world that he didn’t exist. The message there is that
     the evil that you can’t see coming, the evil that is
     hidden, that is so insidious. Evil can hide the
     pitchfork, hide the horns, hide the tail. It can hide
     behind a façade of respectability, a façade of caring.
     Even a façade of, well, this accused. Staff Sergeant
     Erickson, sitting here in this courtroom, right here,
     right now, is evil. The insidious type.

          . . . .

     This demon so masterfully manipulated his victims for
     so long a period of time, the little girls still don’t
     see the evil.

In closing, trial counsel continued:   “He is evil.   The place

for evil, of course, is hell.   His children should not suffer

him a single day of freedom before he goes there.     Society

should not suffer him a single day of freedom before he goes

there.”

     Defense counsel did not object at any point to this part of

trial counsel’s argument.   On appeal to the Court of Criminal


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United States v. Erickson, No. 06-0715/AF

Appeals, Erickson argued that “the trial counsel improperly

inflamed the passions and appealed to potential religious biases

of the military judge during his argument” and asked the lower

court to order a rehearing on the sentence or reduce it to no

greater than forty years.    Erickson, 63 M.J. at 509.    While the

Air Force court held that the comments in this case went well

outside the bounds of fair comment and amounted to plain and

obvious error, it found no material prejudice to Erickson’s

substantial rights.   Id. at 509-10.     The lower court held that

there was no clear evidence the military judge considered the

comments and that the misconduct in this case was so severe that

the military judge would have imposed the same sentence

regardless of the comments.    Id.

                              DISCUSSION

     When a defense attorney fails to object to a sentencing

argument at the time of trial, appellate courts review the

statement for plain error.    United States v. Barrazamartinez, 58

M.J. 173, 175 (C.A.A.F. 2003); United States v. Gilley, 56 M.J.

113, 123 (C.A.A.F. 2001).    In order to prevail under a plain

error analysis, Erickson must demonstrate that:     “(1) there was

an error; (2) it was plain or obvious; and (3) the error

materially prejudiced a substantial right.”     United States v.

Kho, 54 M.J. 63, 65 (C.A.A.F. 2000); United States v. Finster,

51 M.J. 185, 187 (C.A.A.F. 1999).



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United States v. Erickson, No. 06-0715/AF

     The sole issue before this court concerns the third element

of the plain error test –- whether the error materially

prejudiced a substantial right.1       In assessing prejudice under

the plain error test where prosecutorial misconduct has been

alleged:

     [W]e look at the cumulative impact of any
     prosecutorial misconduct on the accused’s substantial
     rights and the fairness and integrity of his
     trial. . . . We believe the best approach involves a
     balancing of three factors: (1) the severity of the
     misconduct, (2) the measures adopted to cure the
     misconduct, and (3) the weight of the evidence
     supporting the conviction.

United States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).

Although the second Fletcher factor adds little to the analysis

in a judge alone trial, there is no reason not to apply the

first and third factors in that context.       We consider the

Fletcher factors to determine whether “trial counsel’s comments,

taken as a whole, were so damaging that we cannot be confident”

that Erickson was sentenced “on the basis of the evidence

alone.”    Id.


1
  The Court of Criminal Appeals’ decision concerning the first
two prongs of the plain error test was not appealed to this
court. Where neither party appeals a ruling of the court below,
that ruling will normally be regarded as law of the case and
binding upon the parties. United States v. Parker, 62 M.J. 459,
464 (C.A.A.F. 2006). Where there is no appeal, this court will
not review the lower court’s ruling unless “the lower court’s
decision is ‘clearly erroneous and would work a manifest
injustice’ if the parties were bound by it.” United States v.
Doss, 57 M.J. 182, 185 (C.A.A.F. 2002) (citation omitted).
Neither party argued that the rulings were clearly erroneous or
would work a manifest injustice.

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United States v. Erickson, No. 06-0715/AF

Severity of the misconduct

     Erickson argues that trial counsel’s misconduct was severe

because he invoked infamous enemies of the United States and

sought to identify Erickson as a demonic figure.    As a result,

he concludes, the military judge could not separate his personal

religious views from his sentencing decision.    The Government

responds that because the improper references constituted a

relatively limited portion of trial counsel’s lengthy sentencing

argument, the misconduct was not severe.

     In Fletcher, this court evaluated the severity of trial

counsel’s improper comments based on, inter alia, “the raw

numbers -- the instances of misconduct as compared to the

overall length of the argument,” and the degree to which the

improper references were spread throughout the argument or the

case as a whole.   62 M.J. at 184; see also United States v.

Modica, 663 F.2d 1173, 1181 (2d Cir. 1981).     Here, the improper

comments amounted to less than a single page out of trial

counsel’s twenty-two page sentencing argument.    Although the

improper references appeared at both the beginning and the end

of the sentencing argument, they were confined to those

locations and did not permeate the entire argument.    No improper

references were made during the Government’s rebuttal sentencing

argument.




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United States v. Erickson, No. 06-0715/AF

     The lower court found that the trial counsel’s comparison

of Appellant to Hitler, bin Laden, and Hussein was improper and

“went well beyond the norm and were outside the bounds of fair

comment.”   Erickson, 63 M.J. at 510.   Nevertheless, these

comments were made in the context of a permissible theme -- that

unseen evil is worse than open and obvious evil.   It reflected

both the general belief of young children that their father

would not wish to do them harm and Erickson’s actions to conceal

his conduct.   While we do not condone the references, in this

context, and in view of the limited number of references in a

lengthy argument, we do not consider the misconduct to be

“severe.”

Judge alone trial

     Erickson contends that because the military judge listened

to the argument without interruption, there were no measures

taken to cure the error.   The Government responds that in an

argument before a military judge alone, the military judge need

not act to cure misconduct because he is presumed to know and

follow the law.    United States v. Rodriguez, 60 M.J. 87, 90

(C.A.A.F. 2004).

     In United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A.

1977), this court emphasized the importance of swift corrective

action by the military judge to remedy the effects on a court-

martial panel of a prosecutor’s improper comments.   See also



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United States v. Erickson, No. 06-0715/AF

Baer, 53 M.J. at 239; Berger v. United States, 295 U.S. 78, 85

(1935).   In this case, however, no panel heard trial counsel’s

improper remarks and the military judge had no obligation to

provide an instruction.   Cf. United States v. Horn, 9 M.J. 429,

430 (C.M.A. 1980).   Military judges are presumed to know the law

and to follow it absent clear evidence to the contrary.   United

States v. Mason, 45 M.J. 483, 484 (C.A.A.F. 1997).   As part of

this presumption we further presume that the military judge is

able to distinguish between proper and improper sentencing

arguments.   Erickson argues that since the military judge did

not note that the references were improper and state on the

record that he would not consider them, we do not know how he

perceived the argument.   Erickson fails, however, to provide any

evidence that would rebut the presumption.   There is nothing in

the record that reflects that the military judge was biased or

in any way swayed by the comments.2

Weight of evidence supporting the sentence

     Erickson argues that although the evidence against him was

strong, it did not justify a sentence of confinement for life

with eligibility for parole, which was greater than the usual

sentence in child sexual abuse cases.   The Government responds


2
  While not the case here, if a defendant introduced evidence to
rebut the presumption, we would then consider whether the
military judge undertook “curative measures,” such as a clear
statement on the record that he would not consider the improper
comments.

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United States v. Erickson, No. 06-0715/AF

that the evidence weighed heavily in favor of the sentence

imposed because of the negative and ongoing impact of the abuse

on Erickson’s young victims.

     While we recognize that Erickson received a sentence at the

higher end of the sentencing spectrum for child sexual abuse

cases, the facts in this case are particularly egregious.     The

sentence was not the highest possible sentence and the Court of

Criminal Appeals found that it was appropriate in light of the

evidence.   Erickson’s offenses carried the possibility of a

sentence of confinement for life without the possibility of

parole.   Manual for Courts-Martial, United States pt. IV, para

45.e.(1) (2002 ed.); Rule for Courts-Martial (R.C.M.)

1003(b)(7).   His adjudged sentence of confinement for life with

eligibility for parole is therefore a lower sentence than he

could have received.

     R.C.M. 1001 allows the military judge to consider

Erickson’s admitted conduct with his children as well as the

negative and continuing impact of that conduct as an aggravating

factor.   The sentence adjudged must be based on all relevant

sentencing factors.    R.C.M. 1001(b)(4); United States v. Holt,

33 M.J. 400, 408 (C.M.A. 1991).    The evidence revealed not only

that Erickson had sexually abused his two daughters over a

sustained period, but that he manipulated them into believing

that the conduct was appropriate.      He told them that if they



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United States v. Erickson, No. 06-0715/AF

revealed what he had done to them he would leave them and go to

jail.     As a consequence both girls lied to protect the very

person abusing them.

        Erickson’s abuse has left his children emotionally scarred.

His son provided testimony as to the impact of his father’s

abuse.    His older daughter stated that she felt immense guilt,

confusion, and fear about her ability to lead a normal life in

the future.    Perhaps the most tragic consequence of Erickson’s

conduct is that the younger daughter was so influenced by her

father that she continued to defend him through the time of

trial.3    The clinical psychologist who was treating Erickson’s

son and younger daughter at the time of trial testified as to

the lasting negative impact of Erickson’s actions on both these

children and the extended treatment they would require.

        The offenses to which Erickson entered guilty pleas and his

admitted conduct in connection with those offenses support a

significant sentence.    Added to this is the compelling evidence

of the lasting negative impact of his offenses on his children.

Erickson’s comparison of his sentence to those in other cases


3
  In a Stipulation of Expected Testimony, the younger daughter
stated:

        None of the things that happened between me and Dad
        would matter if no one else knew about it. I have
        never been scared of Dad. I don’t like it that people
        only talk about the bad things about Dad. He is a
        really good man, and does lots of good things for me.
        I love him.

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United States v. Erickson, No. 06-0715/AF

involving child sexual abuse fails to account for the egregious

record before us and therefore does not establish an “‘obvious

miscarriage[] of justice or abuse[] of discretion.’”   United

States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999) (quoting United

States v. Dukes, 5 M.J. 71, 73 (C.M.A. 1978)).   We find that the

weight of evidence clearly supports the Court of Criminal

Appeals’ determination that Erickson would have received the

same sentence irrespective of trial counsel’s improper comments.

     Having reviewed the Fletcher factors, we conclude that

there was no material prejudice to Erickson’s substantial rights

and therefore no plain error.

                            DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Erickson, No. 06-0715/AF


     STUCKY, Judge, with whom BAKER, Judge, joins (concurring):

     I agree with the majority’s conclusion that the military

judge did not commit plain error, but write separately because

the Court’s reliance on the balancing test in United States v.

Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005) appears misplaced in

a judge-alone trial such as this.

     In Fletcher, we appropriately found that determining the

existence of prejudice caused by trial counsel’s improper

comments made before a court-martial including members depends

on balancing the severity of counsel’s misconduct against the

military judge’s curative measures and the weight of the

evidence supporting conviction.   See id.   In other words, the

more improper the argument, the greater the counterweight of

curative measures and the weight of the evidence must be to

overcome any potential prejudice.

     In a judge-alone case like this one, curative measures are

superfluous because the military judge is presumed to know and

apply the law correctly.   United States v. Rodriguez, 60 M.J.

87, 90 (C.A.A.F. 2004).    The facts of this case are fortuitous

in that the improper conduct is balanced by overwhelming

evidence supporting conviction.   As such, curative measures are

unnecessary under the Fletcher rubric.    However, when this Court

considers a future case in which trial counsel’s egregious

conduct is balanced against evidence of guilt of less than
United States v. Erickson, No. 06-0715/AF


overwhelming weight, a Fletcher analysis would seem to require

the military judge in that case to impose significant curative

measures on himself to counterbalance the improper argument.

This could not only lead to an absurd result, but also would

contradict the principle that the military judge is presumed to

know and apply the law correctly.

     As an alternative to the Court’s Fletcher analysis, I would

have reviewed the record for any evidence of prejudice

sufficient to rebut the presumption that the military judge knew

and applied the law correctly.   Seeing no such evidence, I

concur with my colleagues that there was no material prejudice

to Appellant’s rights and, therefore, no plain error.




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