                        UNITED STATES, Appellee

                                    v.

                   Daniel A. FREY, Staff Sergeant
                      U.S. Air Force, Appellant

                              No. 14-0005

                         Crim. App. No. 37759

       United States Court of Appeals for the Armed Forces

                       Argued February 24, 2014

                         Decided May 19, 2014

BAKER, C.J., delivered the opinion of the Court, in which
ERDMANN, STUCKY, and RYAN, JJ., joined. OHLSON, J., filed a
separate dissenting opinion.

                                 Counsel

For Appellant: Captain Michael A. Schrama (argued); Major
Nathan A. White.

For Appellee: Captain Matthew J. Neil (argued); Colonel Don M.
Christensen, Major Charles G. Warren, and Gerald R. Bruce, Esq.
(on brief).

Military Judges:    Thomas A. Monheim and Le T. Zimmerman


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Frey, No. 14-0005/AF


     Chief Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a general court-martial composed of

members at Joint Base McGuire-Dix-Lakehurst, New Jersey.

Appellant was convicted, contrary to his pleas, of one

specification of engaging in sexual contact with a child who had

not attained the age of twelve years and one specification of

engaging in a sexual act with a child who had not attained the

age of twelve years, both in violation of Article 120, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. § 920 (2006).

Appellant was sentenced to a dishonorable discharge, eight years

of confinement, forfeiture of all pay and allowances, and

reduction to E-1.   The convening authority approved the

sentence.   The United States Air Force Court of Criminal Appeals

(CCA) affirmed the findings and the sentence.   Appellant then

petitioned this Court and was granted review on 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.

     Like the CCA, we find that trial counsel’s sentencing

argument, while improper, was not prejudicial and therefore

affirm the findings of the CCA.




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United States v. Frey, No. 14-0005/AF


                            BACKGROUND

     On New Year’s Eve of 2008, Appellant and his fiancée got

into an argument while returning from a holiday visit to his

family and she kicked him out of her house.   Appellant called

his friend and supervisor Master Sergeant (MSgt) KK and asked if

he could stay with him for awhile.    MSgt KK agreed and Appellant

moved some belongings into his friend’s basement.   MSgt KK was

hosting a New Year’s Eve party that night and invited Appellant

to attend.   Near the end of the evening, Appellant wound up

alone in the basement with MSgt KK’s two daughters, ten-year-old

RK and seven-year-old EK.   After playing video games together,

Appellant and the two girls put on the Batman: The Dark Knight

movie.   Appellant and RK were lying side by side on the pull-out

couch.

     All three fell asleep while watching the movie.   When RK

woke sometime later, she got up and turned off the movie

projector, awakening Appellant in the process.   RK lay down

again and fell back asleep, only to awaken when she felt

Appellant’s hands on her stomach, under her t-shirt.

Frightened, she lay still as his hands traveled up to her chest

and began fondling her breasts.   He then slid his hand down

inside her pajama pants and underwear.   He rubbed her vagina and

penetrated her with his finger, causing her pain.   Appellant

fondled her breasts a second time and then moved his hand

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United States v. Frey, No. 14-0005/AF


downward to touch her vagina again.   RK lay still the entire

time, too scared to speak.   While Appellant’s hands were still

on her, RK managed to get up off the couch and go upstairs.     Too

frightened to tell her father what had occurred, RK wrote him a

note that read:   “Daddy, The guy that moved in down stairs [sic]

was toching [sic] me in the wrong places.”

     Late the following morning, Appellant moved his belongings

out of MSgt KK’s home.   Sometime after he had departed, the

civilian police were called.   Appellant was charged with one

specification of engaging in sexual contact with a child who had

not attained the age of twelve years and one specification of

engaging in a sexual act with a child who had not attained the

age of twelve years, both in violation of Article 120, UCMJ.     At

a trial before members, RK testified remotely regarding the

events of that New Year’s Eve, testimony that had to be paused

several times because RK began crying.   The note she wrote to

her father was admitted into evidence.

     Members found Appellant guilty of both specifications.     At

sentencing, trial counsel requested that members impose a

sentence of ten years of confinement, dishonorable discharge,

forfeiture of all pay and allowances, and reduction to E-1.

Defense counsel asked that members impose a sentence of less

than ten years, but did not request a specific number, simply



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United States v. Frey, No. 14-0005/AF


asserting that:   “The defense would suggest to you that a

shorter prison sentence is more appropriate in this instance.”

     During his sentencing argument, on rebuttal, trial counsel

stated:   “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.” 1     Defense

counsel objected to this statement and trial counsel asserted


1
  It should be noted and understood that this comment occurred in
the context of additional comments by trial counsel regarding
Appellant’s potential recidivism. During his initial sentencing
argument, trial counsel made the following statements:

     [T]his sentencing case is about . . . . the protection of
     young girls everywhere. . . .

           . . . .

          . . . . What [does] our common sense and knowledge of
     the ways of the world tell us about jail time? . . . [W]hat
     we can be sure of is that every day he spends in jail will
     be one day less that [RK] doesn’t have to worry about him
     being out on the street and that no other girl can suffer
     the same fate.

           . . . .

          . . . . [T]he Air Force will not tolerate child
     molesters . . . we want to protect young girls from the
     same fate . . . .

   However, Appellant did not object to these statements.
Therefore they are subject to plain error review. United States
v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005). However, because
we find no prejudice in this case, with or without these
additional statements, we need not address the predicate plain
error question as to whether these statements amounted to
obvious error.
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United States v. Frey, No. 14-0005/AF


that “I’m just arguing ways of the world.”     The military judge

overruled the objection.     In instructing the panel prior to

sentencing deliberation, the military judge reminded the members

that argument was not evidence and that the accused was to be

sentenced only for the crimes for which he had been found

guilty.   However, he also told them it was appropriate for them

to apply their “commonsense [sic] and knowledge of the ways of

the world whether or not in your particular case that involves

any implication suggested by counsel.”     The military judge

instructed the members that the maximum period of confinement

was life without parole. 2

     The members sentenced Appellant to a dishonorable

discharge, eight years of confinement, forfeiture of all pay and

allowances, and reduction to E-1.      The convening authority

approved the sentence.     Before the Air Force CCA, Appellant

argued that trial counsel had unduly inflamed the passions of

the members by improperly suggesting Appellant would commit

future acts of child molestation.      The CCA found trial counsel’s

remarks went beyond the evidence of record and constituted

error.    However, it determined that, “[w]hen placed in the

context of the total sentencing argument and the adjudged


2
  The military judge also instructed that the maximum punishment
that could be adjudged included reduction to the grade of E-1,
forfeiture of all pay and allowances, and a dishonorable
discharge.
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United States v. Frey, No. 14-0005/AF


sentence” this error did not materially prejudice Appellant.

The CCA upheld both the findings and the sentence.

                             DISCUSSION

     Improper argument involves a question of law that this

Court reviews de novo.    United States v. Marsh, 70 M.J. 101, 106

(C.A.A.F. 2011).   “The legal test for improper argument is

whether the argument was erroneous and whether it materially

prejudiced the substantial rights of the accused.”     United

States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).    Where

improper argument occurs during the sentencing portion of the

trial, we determine whether or not we can be “confident that

[the appellant] was sentenced on the basis of the evidence

alone.”   United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.

2013) (brackets in original) (internal quotation marks omitted).

     The standard for determining prosecutorial misconduct was

established in Berger v. United States, in which the Supreme

Court stated that trial counsel:

     may prosecute with earnestness and vigor . . . . But,
     while he may strike hard blows, he is not at liberty
     to strike foul ones. It is as much his duty to
     refrain from improper methods calculated to produce a
     wrongful conviction as it is to use every legitimate
     means to bring about a just one.

295 U.S. 78, 88 (1935).   Trial counsel is entitled “to argue the

evidence of record, as well as all reasonable inferences fairly

derived from such evidence.”   Baer, 53 M.J. at 237.    However,


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United States v. Frey, No. 14-0005/AF


the Rules for Courts-Martial (R.C.M.) and existing case law both

establish that it is error for trial counsel to make arguments

that “‘unduly . . . inflame the passions or prejudices of the

court members.’”   United States v. Marsh, 70 M.J. 101, 102

(C.A.A.F. 2011) (alteration in original) (quoting United States

v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)); R.C.M. 919(b)

Discussion.

     We agree with the CCA’s finding that the trial counsel’s

sentencing argument was improper and see no reason to make a

separate determination on this matter.    By his own admission

trial counsel’s statements were not derived from the evidence

presented at trial.   Moreover, in lieu of evidence, trial

counsel appealed to members to apply their knowledge of the

“ways of the world” to sentence Appellant based on a risk of

recidivism through serial molestation.

     However, prosecutorial misconduct does not automatically

require a new trial or the dismissal of the charges against the

accused.   Relief will be granted only if the trial counsel’s

misconduct “actually impacted on a substantial right of an

accused (i.e., resulted in prejudice).”    Fletcher, 62 M.J. at

178 (internal quotation marks omitted).    Reversal is appropriate

when the trial counsel’s comments, taken as a whole, “were so

damaging that we cannot be confident that [the appellant] was

sentenced on the basis of the evidence alone.”    Halpin, 71 M.J.

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United States v. Frey, No. 14-0005/AF


at 480 (alteration in original) (internal quotation marks

omitted).

     In Fletcher, this Court recommended balancing three factors

to assess whether misconduct impacted the accused’s substantial

rights and the integrity of his trial:       “(1) the severity of the

misconduct, (2) the measures adopted to cure the misconduct, and

(3) the weight of the evidence supporting the conviction.”        62

M.J. at 184.   In Halpin, this Court extended the Fletcher test

to improper sentencing argument.       71 M.J. at 480.   In applying

this test to the current case, we find that although the first

two factors favor Appellant, the weight of the evidence

supporting the sentence adjudged is such that we can be

“confident that Appellant was sentenced on the basis of the

evidence alone.”   Id.

Severity of the Misconduct

     R.C.M. 1001, governing presentencing procedure, states that

during argument, trial counsel “may refer to generally accepted

sentencing philosophies” including “specific deterrence of

misconduct by the accused.”   R.C.M. 1001(g).      Such sentencing

theories also encompass protecting society from the wrongdoer

and general deterrence, preventing others from committing

similar offenses in the future.    United States v. Ohrt, 28 M.J.

301, 305 (C.M.A. 1989).   Where trial counsel in this case

overstepped the bounds of proper argument was in requesting that

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United States v. Frey, No. 14-0005/AF


members draw upon information not in evidence to make a specific

conclusion about Appellant:     that he was a serial child molester

who had offended before and in theory would offend again.       “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.”     Though this comment

comprises three sentences in eight pages of sentencing argument,

one is hard pressed to imagine many statements more damaging

than the implication that someone who has been convicted of

molesting a single child will go on to molest many more.        Trial

counsel’s insinuation that Appellant was necessarily guilty of

additional offenses and would be a serial recidivist if not

confined was both unsubstantiated and severe.

Curative Instructions

     The CCA found that the military judge’s curative

instructions remedied the impact of trial counsel’s improper

comment.   We disagree.    If anything, he made things worse.    The

military judge overruled Appellant’s objection to trial

counsel’s improperly urging members to employ their common sense

and “knowledge of the ways of the world” to draw conclusions as

to whether Appellant was a serial child molester.     Then, during

his instructions to the members, the military judge reiterated

that it was appropriate for them to:     “apply your commonsense

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United States v. Frey, No. 14-0005/AF


[sic] and knowledge of the ways of the world whether or not in

your particular case that involves any implication suggested by

counsel.   Again, it is up to you to determine whether or not

that comports with your sense of the ways of the world.”      He

then reminded members that the accused was to be sentenced only

for the offense for which he had been found guilty.   However,

this was not sufficient to offset the notion that it was

acceptable for members, absent any facts in evidence, to

consider their own “knowledge of the ways of the world”

conclusions as to whether Appellant was or would be a serial

child molester when determining an appropriate sentence.

     Both trial counsel and the military judge urged members to

rely upon their “knowledge of the ways of the world” in

assessing trial counsel’s sentencing argument.   There are two

problems with the use of “ways of the world” in this context.

First, members are supposed to adjudicate a sentence based on

the evidence presented and the military judge’s instructions,

which define, among other things, the potential confinement

exposure of the defendant and relevant sentencing factors and

philosophies.   Nowhere does the Manual for Courts-Martial,

United States (MCM) or this Court’s case law suggest that

members are permitted to ignore this evidentiary requirement and

replace it with their personal knowledge of the “ways of the

world” to determine an appropriate sentence.

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United States v. Frey, No. 14-0005/AF


     Second, whether or not a person convicted of a particular

offense is more or less likely to offend again or become a

serial recidivist is a question requiring expert testimony,

empirical research, and scientific and psychological method,

inquiry, and evidence.   Recidivism is not a matter resolved

through appeal to common sense or a member’s knowledge of “the

ways of the world.”   Moreover, where sexual offenses are

concerned, especially those against children, such appeal is

likely to invoke an emotional and stereotypical response, not

necessarily an empirical one.    Neither is there agreement on

just what “the ways of the world” might reflect with respect to

recidivism.    According to a 1997 National Institute of Justice

report, “[r]ecidivism rates across studies are confounded by

differences in legal guidelines and statutes among States,

length of exposure time (i.e., time in the community, where the

opportunity exists to reoffend), offender characteristics,

treatment-related variables (including differential attrition

rates, amount of treatment, and integrity of treatment program),

amount and quality of posttreatment supervision, and many other

factors.”   Robert A. Prentky et al., National Institute of

Justice Research Report, U.S. Dep’t of Justice, Child Sexual

Molestation:   Research Issues iv (1997).

     The term “ways of the world” refers to court members’

evaluation of lay testimony, defenses, and witness

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United States v. Frey, No. 14-0005/AF


credibility.   See United States v. Rivera, 54 M.J. 489, 491

(C.A.A.F. 2001) (witness credibility); United States v.

Oakley, 11 C.M.A. 187, 191, 29 C.M.R. 3, 7 (1960)

(Ferguson, J., concurring) (insanity defense); United

States v. Wilson, 18 C.M.A. 400, 405, 40 C.M.R. 112, 117

(1969) (lay witness).   The term can include the fact that

“a single punch to the torso or head can kill or cause

serious bodily injury,” Rivera, 54 M.J. at 491; or that a

defendant recanted his confession after talking to a

lawyer, United States v. Cuento, 60 M.J. 106, 111 (C.A.A.F.

2004).   It does not, however, include a likelihood that an

accused used drugs given proof he had used them before,

United States v. Cousins, 35 M.J. 70, 75 (C.A.A.F. 1992),

or the recidivism rates of child molesters.

     As case law and the Military Judges’ Benchbook have long

recognized, members are expected to use their common sense in

assessing the credibility of testimony as well as other evidence

presented at trial.   See United States v. Russell, 47 M.J. 412,

413 (C.A.A.F. 1998); United States v. Hargrove, 25 M.J. 68, 71

(C.M.A. 1987); Dep’t of the Army, Pam. 27-9, Legal Services,

Military Judges’ Benchbook ch. 2, § V, para. 2-5-12 (2010)

(hereinafter Military Judges’ Benchbook).   Whether it is useful

rather than confusing to also instruct members to use their

knowledge of “the ways of the world” to assess the credibility

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United States v. Frey, No. 14-0005/AF


of evidence is a matter of discretion for the military judge.

However, what military judges cannot do is invite members to

substitute their understanding of the “ways of the world” for

evidence or for the military judge’s instructions on sentencing.

One person’s perception of the ways of the world might vary

dramatically from another’s, based on education, experience, and

personal bias.     The phrase “common sense” is sufficient, and

more accurate, to convey the sort of personal knowledge members

can rely upon when weighing evidence and formulating their

decisions.     Though language encouraging members to rely upon

their knowledge of the “ways of the world” is present in the

Military Judges’ Benchbook, e.g., ch. 2, § V, para. 2-5-12, we

note that it was stricken from the 1984 version of the MCM and

is not part of the current MCM.     Compare MCM ch. XIII, para.

74.a. (1969 rev. ed.), with MCM pt. II, ch. IX, at II-134 (1984

ed.).

        Given the above analysis we conclude that the military

judge’s instructions were not sufficient to cure trial counsel’s

improper argument.

Weight of Evidence Supporting Sentence

        Though Fletcher recommended a balancing of all three

factors, it did not assign a particular value to each or comment

on whether they should be weighed equally.     In Halpin, this

Court found that the third factor weighed so heavily in favor of

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United States v. Frey, No. 14-0005/AF


the government that it could be fully confident the appellant

was sentenced on the basis of evidence alone.    71 M.J. at 480.

As in Halpin, in this case the “weight of the evidence amply

supports the sentence imposed by the panel.”    Id.    And, as in

Halpin, Appellant has failed to demonstrate he was not sentenced

on the basis of evidence alone.

     Trial counsel’s argument was improper and potentially

harmful.    As noted above, there are few labels as potentially

damaging to a defendant than that of serial child molester.

However, the test for prejudice under Halpin is whether or not

we can be “confident that Appellant was sentenced on the basis

of the evidence alone.”    71 M.J. at 480.   We are.

     The military judge established that the maximum punishment

for sexual contact with and sexual assault of a child under

twelve years of age was life without parole.    The Government

requested ten years of confinement with a dishonorable

discharge, forfeiture of all pay and allowances, and reduction

to E-1.    Appellant requested that members adjudge a sentence of

less than ten years -- “[t]he defense would suggest to you that

a shorter prison sentence is more appropriate in this instance”

-- but did not recommend a specific period of confinement.     In

addition, trial counsel’s improper comment was surrounded by

powerful and proper sentencing argument.     Trial counsel pointed

out the many ways in which being a victim of sexual assault

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United States v. Frey, No. 14-0005/AF


might impact the future of the ten-year-old victim.   He also

highlighted the betrayal inherent in the fact that RK was the

daughter of Appellant’s supervisor and friend of ten years.     In

addition, defense counsel, in his own argument, repeatedly

reminded members that there was no evidence Appellant had

committed sexual assault in the past or that he would do so

again.

     When determining a sentence, members are allowed to

consider all evidence properly introduced before findings as

well as the proffered sentencing evidence.   R.C.M. 1001(f)(2).

Nothing Appellant presented in mitigation -- letters from his

pastor, his fiancée, and other family members testifying to his

good character and the stress he had been under due to the

recent death of his father, and a brief unsworn statement in

which he did not admit his guilt -- was sufficient to mitigate

the impact of then eleven-year-old RK’s tearful testimony or

trial counsel’s admission of the actual note she wrote to her

father the morning after the assault.

     Most importantly, given that members adjudged an even

lighter sentence than the Government requested and settled upon

the period of confinement Appellant asked for -- something less

than ten years -- we find no evidence of prejudice.   We

therefore are confident that Appellant was sentenced based on

the evidence rather than improper argument presented.   Thus,

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United States v. Frey, No. 14-0005/AF


trial counsel’s argument, though improper, did not “materially

prejudice[] the substantial rights of the accused.”   Baer, 53

M.J. at 237.   Given this lack of any due process violation, we

find Appellant is not entitled to relief.

                            CONCLUSION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Frey, No. 14-0005/AF


       OHLSON, Judge (dissenting):

       I agree with the majority that the trial counsel’s

sentencing argument was improper and that the military judge’s

instructions to the panel merely served to compound the error.

Where I differ from my colleagues is that I conclude that the

toxic nature of the trial counsel’s comments, coupled with the

deleterious effect of the military judge’s instructions,

poisoned the sentencing hearing beyond redemption.    Thus, I

would order a sentence rehearing in this case, and I therefore

respectfully dissent.

       We review the question of whether an argument was improper

using a de novo standard.    United States v. Marsh, 70 M.J. 101,

106 (C.A.A.F. 2011).    In conducting this de novo review, we must

ask:    (a) was the argument erroneous, and (b) if so, did it

materially prejudice the substantial rights of the accused?

United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).

       In assessing whether an argument was error, our guiding

principles are that a trial counsel may not “‘unduly . . .

inflame the passions or prejudices of the court members,’”

United States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)

(alteration in original) (citation omitted), and the trial

counsel’s arguments must be limited to “the evidence of record,

as well as all reasonable inferences fairly derived from such

evidence.”    Baer, 53 M.J. at 237.   Like the majority, I conclude
United States v. Frey, No. 14-0005/AF


that the trial counsel’s sentencing argument violated these

fundamental tenets.

     In assessing whether an erroneous argument was prejudicial,

we must look at the argument in its totality and determine its

cumulative effect on the fairness and integrity of the accused’s

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

2005).   In sum, we must determine whether the trial counsel’s

comments were so damaging that we cannot be confident that the

members sentenced the appellant on the basis of the evidence

alone.   Id.; United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.

2013).   Unlike the majority, under the totality of the

circumstances in this particular case, I conclude that we cannot

be confident of that fact.

     In analyzing this matter, I readily concede several

important points.   First, during a sentencing hearing a trial

counsel may certainly use arguments that are crafted to address

such sentencing philosophies as specific deterrence, general

deterrence, and protection of society.   Rule for Courts-Martial

(R.C.M.) 1001(g).   Second, there is a considerable body of

academic and scientific literature which indicates that the

recidivism rate of certain categories of child molesters is

woefully high.   See, e.g., Patrick A. Langan et al., Bureau of

Justice Statistics, U.S. Dep’t of Justice, Recidivism of Sex

Offenders Released from Prison in 1994 passim (2003).     Third,

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United States v. Frey, No. 14-0005/AF


under the appropriate circumstances, a trial counsel may be able

to introduce evidence of an accused’s recidivism risk at a

sentencing hearing, and the panel members may then consider this

evidence when fashioning their sentence.   See United States v.

Ellis, 68 M.J. 341, 347 (C.A.A.F. 2010) (allowing expert

testimony during sentencing as to the accused’s risk of

recidivism); R.C.M. 1001(b)(5).   Fourth, generally speaking, a

sentence of eight years of confinement for someone who has been

convicted of child molestation is not, on its face, unduly

harsh.   See Manual for Courts-Martial, United States, Maximum

Punishment Chart app. 12 at A12-4, Punitive Article Applicable

to Sexual Offenses Committed During the Period 1 October 2007

Through 27 June 2012 app. 28 at A28-1 (2012 ed.) (MCM) (listing

the maximum confinement for rape of a child and aggravated

sexual contact with a child as life and twenty years,

respectively).   And fifth, although a trial counsel may not

strike “foul” blows during a sentencing hearing, he or she may

certainly strike “hard” ones.   See Berger v. United States, 295

U.S. 78, 88 (1935).   Nevertheless, in my view, none of these

points ameliorates or justifies the trial counsel’s argument

during the sentencing hearing in this case.

     In his brief, Appellant takes issue with a number of

comments made by trial counsel.   For example, during the

sentencing hearing the trial counsel argued that “what we can be

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United States v. Frey, No. 14-0005/AF


sure of is that every day [Appellant] spends in jail will be one

day less that [the victim] doesn’t have to worry about him being

out on the street and that no other girl can suffer the same

fate,” and averred that the sentencing of Appellant was about

“the protection of young girls everywhere.”    In making these

statements, the trial counsel failed to first take the

relatively simple but critically important step of introducing

evidence pertaining to Appellant’s recidivism risk.    Further,

these statements could be considered as contributing to an

atmosphere where the panel members’ “‘passions or prejudices’”

could be “‘unduly . . . inflamed.’” 1   Schroder, 65 M.J. at 58

(alteration in original) (citation omitted).    But far more

importantly in my view, these statements by the trial counsel

absolutely pale in comparison to another argument the trial

counsel made to the panel members, and to which defense counsel

promptly objected.   Because I believe the ramifications of the

latter argument prove dispositive of the issue in this case, I

will only address that argument in this opinion.

     Specifically, during the trial counsel’s rebuttal argument

the following exchange occurred:

1
 I note that these arguments were not objected to at trial and
therefore should be reviewed for plain error. Fletcher, 62 M.J.
at 179; Halpin, 71 M.J. at 479. However, as discussed below,
defense counsel objected to other comments and this Court looks
at the cumulative impact of the trial counsel’s comments as a
whole to assess prejudice. Fletcher, 62 M.J. at 184; Halpin, 71
M.J. at 480.
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United States v. Frey, No. 14-0005/AF


     ATC: 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.

     DC: Your Honor, I’ll just object again.     It’s improper
     argument.

     MJ:    Trial Counsel[?]

     ATC:    I’m just arguing ways of the world, Your Honor.

     DC:    Your Honor, this is not ways of the world.

     MJ:    Overruled.   Continue.

     And so, we are presented with a situation where the trial

counsel blatantly argued to the panel members -- who would soon

be deliberating on the appropriate sentence to impose on

Appellant -- that although there was no evidence that Appellant

had molested any children before, their knowledge of the “ways

of the world” could allow them to conclude that he actually had

done so.    In my view, the impropriety of this argument is

nothing short of breathtaking.

     Needless to say, the military judge’s failure to sustain

the defense counsel’s immediate and well-founded objection to

the trial counsel’s argument did not ameliorate the problem one

whit.   In fact, because the back-and-forth on this issue

occurred right in front of the panel members, the military

judge’s ruling could be construed as exacerbating the harm to

Appellant.    But worse, when the military judge gave his


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United States v. Frey, No. 14-0005/AF


sentencing instructions mere moments later, the military judge

actually compounded the problem -- as conceded by the majority.

The military judge correctly noted to the panel members that the

Government’s argument included “[a] few statements . . . not

before you in evidence,” but instead of solely instructing the

panel members to ignore those arguments, the military judge

instructed the panel members that they could place those

arguments “in context of whatever knowledge of the ways of the

world you have.”   Thus, by giving this instruction, the military

judge could be seen as endorsing the patently improper and

grossly inflammatory argument made by the trial counsel.

     In my view, this improper argument by the trial counsel,

coupled with the highly problematic instruction by the military

judge, likely inflicted great and irremediable damage on

Appellant’s sentencing position –– and it is the Government’s

burden to demonstrate that it did not.   Therefore, I would find

that Appellant’s right to a fair sentencing hearing was

materially and fatally prejudiced.   However, in its prejudice

analysis, the majority concludes otherwise.

     In supporting its position that the error by the trial

counsel ultimately proved harmless to Appellant, the majority

cites two factors.   First, the majority notes the abhorrent

conduct of Appellant and concludes that this alone would have

compelled the panel to impose a sentence of eight years of

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United States v. Frey, No. 14-0005/AF


imprisonment.   Indeed, I readily agree that a solid argument

could be made in favor of sentencing Appellant to at least eight

years in prison.   Nevertheless, because the trial counsel’s

argument was so grossly inflammatory and because of the totality

of the other circumstances present in the instant case, I

conclude that the Government did not come remotely close to

meeting its burden of demonstrating that this particular panel

in this specific case would have imposed this sentence absent

the trial counsel’s improper actions.

     My reluctance to speculate on the panel’s probable action

in this case is informed by the fact that this Court reviews a

large (and dreadful) number of cases involving sexual

molestation, and I have yet to discern any pattern to the

sentences imposed by panel members.   In fact, within days of

this Court hearing oral argument in the instant case, petitions

in two different cases were circulated where the facts were

similar to -- if not worse than -- the instant case, and yet,

with regard to confinement, the panel only imposed one year of

imprisonment in one case, and eleven months of imprisonment in

the other.   United States v. Havlock, No. ARMY 20130290, slip

op. at 1 (A. Ct. Crim. App. Dec. 16, 2013), 73 M.J. __ (C.A.A.F.

2014) (order denying petition); United States v. Fiebelkorn, No.

ARMY 20130629, slip op. at 1 (A. Ct. Crim. App. Jan. 14, 2014),

73 M.J. __ (C.A.A.F. 2014) (order summarily granting and

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United States v. Frey, No. 14-0005/AF


affirming the lower court).   Thus, in a case such as the instant

one where the punishment imposed was substantial and the

improper argument by the trial counsel was egregious, I believe

it is prudent not to place too much weight on the argument that

we have the ability at the appellate level to determine that

this sentence would have been imposed by this specific panel in

this particular case even absent the trial counsel’s improper

argument.

     Second, in its prejudice analysis the majority states that

because the panel members “adjudged an even lighter sentence

than the Government requested and settled upon the period of

confinement Appellant asked for –– something less than ten years

–– [there is] no evidence of prejudice.”   In my view, a

numerical approach to this sentencing issue is fraught with

problems.   As just one example, one could as easily argue that

because the Government received eighty percent of the

confinement time that it requested, the Government is unable to

meet its burden of showing that the improper argument did not

tip the sentencing scales in its favor.    Therefore, I once again

would not place too much weight on the majority’s approach in

deciding that the error in the instant case was harmless.

     Indeed, I believe the proper approach in analyzing the

issue before us is to place less emphasis on the result of the

sentencing hearing and to place more emphasis on the process of

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United States v. Frey, No. 14-0005/AF


the sentencing hearing.   Pursuant to that approach, I am

compelled to conclude that the trial counsel’s improper argument

was not limited to “the evidence of record, as well as all

reasonable inferences fairly derived from [that] evidence,”

Baer, 53 M.J. at 237, that the argument “‘unduly . . .

inflame[d] the passions [and] prejudices of the court members,’”

Schroder, 65 M.J. at 58 (alteration in original) (citation

omitted), that the cumulative effect on the fairness and

integrity of Appellant’s sentencing hearing was harmful and

substantial, and that I “cannot be confident that [the members]

sentenced [Appellant] on the basis of the evidence alone.”

Halpin, 71 M.J. at 480 (citation and internal quotation marks

omitted).   Therefore, I believe the appropriate disposition of

the instant case would be to order a sentencing rehearing.

     Accordingly, I respectfully dissent.




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