       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                  FOR THE    ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
    Michael Z. PABELONA, Chief Hospital Corpsman
               United States Navy, Appellant
                          No. 16-0214
                    Crim. App. No. 201400244
          Argued October 12, 2016—February 1, 2017
                   Military Judge: J. K. Waits
   For Appellant: Lieutenant Christopher C. McMahon,
   JAGC, USN (argued); Major M. Brian Magee, USMC (on
   brief).
   For Appellee: Lieutenant James M. Belforti, JAGC, USN
   (argued); Major Suzanne M. Dempsey, USMC, Captain
   Matthew M. Harris, USMC, and Brian K. Keller, Esq.
   (on brief); Colonel Mark K. Jamison, USMC, and Colo-
   nel Valerie L. Danyluk, USMC.
   Judge SPARKS delivered the opinion of the Court, in
   which Chief Judge ERDMANN, and Judges STUCKY,
   RYAN, and OHLSON, joined.
                     _______________

   Judge SPARKS delivered the opinion of the Court.
    Contrary to his pleas, Appellant was convicted by a panel
of officer and enlisted members of one specification of lar-
ceny in violation of Article 121, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. § 921 (2012), and one specifica-
tion of signing a false official statement in violation of Arti-
cle 107, UCMJ, 10 U.S.C. § 907 (2012).1 Appellant was sen-
tenced to sixty days of confinement, sixty days of restriction,
reduction to E-5, total forfeiture of pay and allowances, and
a $60,000 fine with a contingent sixteen months of confine-
ment if he did not pay the fine. The convening authority ap-
proved the adjudged sentence. The United States Navy-

   1 Appellant was acquitted by members of conspiracy to commit
marriage fraud in violation of Article 81, UCMJ, 10 U.S.C. § 881
(2012), and obstruction of justice in violation of Article 134,
UCMJ, 10 U.S.C. § 934 (2012).
           United States v. Pabelona, No. 16-0214/NA
                     Opinion of the Court

Marine Corps Court of Criminal Appeals affirmed the find-
ings and sentence. Appellant then filed a petition for review,
asking this Court to determine whether statements the trial
counsel made during closing argument on the merits and
argument on sentencing amounted to plain error. We hold
that, even if we were to assume error, there was no material
prejudice to the substantial rights of Appellant. Therefore,
the decision of the Navy-Marine Corps Court of Criminal
Appeals is affirmed.
                            Facts
    On February 3, 2011, Appellant married Yadira Mar-
tinez Vasquez (Yadira). He subsequently enrolled her in the
Defense Enrollment Eligibility Reporting System and, in
May 2011, received authorization for Basic Allowance for
Housing (BAH) at the “with dependents” rate. Appellant re-
ceived BAH at the “with dependents” rate from May 2011
through April 2013, collecting more than $45,000 in BAH.
Prompted by a 2012 report from a member of Appellant’s
command, investigators began looking into whether this was
a “sham” marriage, entered into only so Appellant could col-
lect BAH at the higher rate.
    A Naval Criminal Investigative Services agent testified
at trial that, upon investigating Appellant’s marriage, she
learned that Appellant had made numerous purchases at
designer clothing and other high end stores, had in excess of
$55,000 in consumer debt, and had almost no funds in his
checking and savings accounts. She also testified that Appel-
lant and Yadira, an undocumented immigrant from Hondu-
ras, did not live at the same address; that Appellant
changed his story about whether he knew his wife was an
undocumented immigrant and whether he had hired a law-
yer to assist her; and that he could not remember where
they were married or who had acted as the witness at the
wedding. Appellant’s former roommate (the two continued to
live together, without Yadira, even after Appellant married)
testified that Appellant told him that he got married in or-
der to collect a higher BAH.
    As part of the general instructions to the panel prior to
closing arguments, the military judge delivered an instruc-
tion that the arguments of counsel are not evidence. During
the Government’s closing argument on the merits and ar-
gument on sentencing, the trial counsel made a number of
arguments that Appellant now claims were improper. These
statements included (though were not confined to):


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           United States v. Pabelona, No. 16-0214/NA
                     Opinion of the Court

   1) An accusation that Appellant was using money to at-
      tend strip clubs based on records (not in evidence)
      that he had withdrawn money from an ATM located
      at a strip club;
   2) An insinuation that Appellant might be schizophren-
      ic;
   3) Calling Appellant an idiot, a deadbeat, and a con art-
      ist;
   4) Calling Appellant a liar who “sleeps in a bed of lies.”
   Defense counsel raised no objection to any of the trial
counsel’s arguments at the time they were made and the
military judge did not correct the trial counsel sua sponte.
                          Discussion
    “Improper argument involves a question of law that this
Court reviews de novo.” United States v. Frey, 73 M.J. 245,
248 (C.A.A.F. 2014). “The legal test for improper argument
is whether the argument was erroneous and whether it ma-
terially prejudiced the substantial rights of the accused.” Id.
(internal quotation marks omitted) (citation omitted). Be-
cause defense counsel failed to object to the arguments at
the time of trial, we review for plain error. United States v.
Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004). The standard for
plain error review requires that: “(1) an error was commit-
ted; (2) the error was plain, or clear, or obvious; and (3) the
error resulted in material prejudice to substantial rights.”
United States v. Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008)
(internal quotation marks omitted) (citation omitted). The
burden lies with Appellant to establish plain error. Id.
    Prosecutorial misconduct is “action or inaction by a pros-
ecutor in violation of some legal norm or standard, e.g., a
constitutional provision, a statute, a Manual rule, or an ap-
plicable professional ethics canon.” United States v. Meek, 44
M.J. 1, 5 (C.A.A.F. 1996). The standard was set by the Su-
preme Court in Berger v. United States in 1935, describing
prosecutorial misconduct as behavior by the prosecuting at-
torney that “overstep[s] the bounds of that propriety and
fairness which should characterize the conduct of such an
officer in the prosecution of a criminal offense.” 295 U.S. 78,
84, (1935). The Supreme Court stated that the 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



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             United States v. Pabelona, No. 16-0214/NA
                       Opinion of the Court

       wrongful conviction as it is to use every legitimate
       means to bring about a just one.
Id. at 88.
    Even were we to conclude that prosecutorial misconduct
occurred, relief is merited only if that misconduct “actually
impacted on a substantial right of an accused (i.e., resulted
in prejudice).” United States v. Fletcher, 62 M.J. 175, 178
(C.A.A.F. 2005) (internal quotation marks omitted) (citation
omitted). “[P]rosecutorial misconduct by a trial counsel will
require reversal when the trial counsel’s comments, taken as
a whole, were so damaging that we cannot be confident that
the members convicted the appellant on the basis of the evi-
dence alone.” United States v. Hornback, 73 M.J. 155, 160
(C.A.A.F. 2014) (internal quotation marks omitted) (citation
omitted). “Where improper argument occurs during the sen-
tencing 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.” Frey, 73 M.J. at 248 (alteration
in original) (internal quotations omitted) (citations omitted).
    Here, we need only address the third element of plain er-
ror because, even were we to assume error, we see no evi-
dence that the trial counsel’s arguments resulted in material
prejudice to any of Appellant’s substantial rights. In as-
sessing prejudice in cases of prosecutorial misconduct, this
Court has looked at three factors: “(1) the severity of the
misconduct, (2) the measures adopted to cure the miscon-
duct, and (3) the weight of the evidence supporting the con-
viction.” Fletcher, 62 M.J. at 184. The Fletcher court made no
determinations regarding how much weight to give each fac-
tor. However, in United States v. Halpin, this Court found
that the third factor so overwhelmingly favored the govern-
ment it was sufficient to establish lack of prejudice. 71 M.J.
477, 480 (C.A.A.F. 2013).
    Here, as in Halpin, we 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, including
the fact that Appellant and his wife never lived together;
that over the course of their marriage he took leave eighteen
times without returning to the United States to visit her
once; that he provided minimal financial support; and that
his roommate at the time he got married testified that Ap-
pellant told him he had only married in order to collect the
BAH.


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           United States v. Pabelona, No. 16-0214/NA
                     Opinion of the Court

    In addition, Appellant was convicted on only two out of
four charges, indicating the members were able to weigh the
evidence offered at trial and make an independent assess-
ment of Appellant’s guilt or innocence with regard to each
separate specification. His sentence was significantly less
than the five years of confinement and $100,000 fine re-
quested by the Government, including a relatively short
term of confinement (potentially longer if he was unable to
pay his fine but still nothing near the five years requested)
and no discharge. 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 Appel-
lant’s substantial rights.
    This Court also granted review on an additional issue. At
trial, the military judge provided the following instruction to
the members prior to deliberation: “If, based on your consid-
eration of the evidence, you are firmly convinced that the
accused is guilty of a charged offense, you must find him
guilty.” Appellant challenges the use of the word “must” as
improper. Because the instruction was not objected to at the
time of trial, the standard of review for this issue is plain
error. In accordance with United States v. McClour, we find
that the military judge’s use of the phrase “must find him
guilty” does not amount to plain error. __ M.J. __ (C.A.A.F.
2017).
                         Conclusion
   The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is affirmed.




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