         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201600285
                        _________________________

                 UNITED STATES OF AMERICA
                                Appellee
                                    v.

                    SEAN L. MOTSENBOCKER
         Operations Specialist Second Class (E-5), U.S. Navy
                              Appellant
                      _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

  Military Judge: Commander Heather D. Partridge, JAGC, USN .
   Convening Authority: Commander, Navy Region Mid -Atlantic,
                            Norfolk, VA.
  Staff Judge Advocate’s Recommendation: Commander Andrew R.
                        House, JAGC, USN.
    For Appellant: Commander Donald R. Ostrom, JAGC, USN.
  For Appellee: Major Kelli A. O’Neil, USMC; Lieutenant Robert J.
                        Miller, JAGC, USN.
                      _________________________

                        Decided 17 October 2017
                        _________________________

Before HUTCHISON, F ULTON , and S AYEGH , Appellate Military Judges
                      _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
   HUTCHISON, Senior Judge:
   In a decision issued on 10 August 2017, United States v. Motsenbocker,
No. 201600285, 2017 CCA LEXIS 539, unpublished op. (N-M. Ct. Crim. App.
10 Aug 2017), we completed our Article 66, Uniform Code of Military Justice
(UCMJ), review of the appellant’s court-martial affirming the findings and
sentence. On 8 September 2017, the appellant moved for en banc
reconsideration, citing five bases. The government opposed the motion, in
                     United States v. Motsenbocker, No. 201600285


part, on 15 September 2017. The court denied en banc reconsideration, but
granted panel reconsideration for the appellant’s fifth basis for
reconsideration—that we “misapplied waiver” to trial defense counsel’s
failure to object to a portion of trial counsel’s (TC’s) closing argument.1
    In our previous opinion we concluded that our superior court’s decision in
United States v. Ahern, 76 M.J. 194 (C.A.A.F. 2017), mandated the
application of waiver—vice forfeiture—to the appellant’s claim that the trial
counsel “made inaccurate references to law” when he “told the members that
they were allowed to use their Navy sexual assault and bystander training in
determining the case” contrary to a preliminary instruction from the military
judge to disregard such training. Motsenbocker, 2017 CCA LEXIS at *30-31
(citation and internal quotation marks omitted) (alterations omitted). Upon
reconsideration, we conclude that Ahern does not control our analysis with
respect to allegations of improper argument, and after conducting a plain
error review—appropriate when forfeiture vice waiver applies—we once
again affirm the findings and sentence. Accordingly, Part II-B-1 and 1a of our
10 August 2017 decision are hereby withdrawn and the following substituted
therefor.
B. Prosecutorial misconduct
   1. Legal error
    The appellant alleges that the TC committed prosecutorial misconduct
during closing arguments by (1) improperly introducing Navy sexual assault
and bystander intervention training; (2) repeatedly calling the appellant a
liar; (3) improperly bolstering the victim’s testimony; (4) mischaracterizing
evidence; (5) inserting the TC’s opinion; and (6) shifting the burden of proof to
the defense.2
    “Prosecutorial misconduct occurs when trial counsel 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.” United States v.
Hornback, 73 M.J. 155, 159 (C.A.A.F. 2014) (citations and internal quotation
marks omitted) (alteration in original). “Prosecutorial misconduct can be
generally defined as action or inaction by a prosecutor in violation of some
legal norm or standard, e.g., a constitutional provision, a statute, a Manual
rule, or an applicable professional ethics canon.” United States v. Meek, 44
M.J. 1, 5 (C.A.A.F. 1996) (citing Berger v. United States, 295 U.S. 78, 88
(1935)).


   1   Appellant’s Motion to Reconsider En Banc of 8 Sep 17 at 11.
   2   Appellant’s Brief of 25 Jan 2017 at 21.




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                   United States v. Motsenbocker, No. 201600285


   “Improper argument is one facet of prosecutorial misconduct.” United
States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citing United States v. Young,
470 U.S. 1, 7-11 (1985)). Prosecutorial misconduct in the form of improper
argument is a question of law we review de novo. United States v. Frey, 73
M.J. 245, 248 (C.A.A.F. 2014) (citing United States v. Marsh, 70 M.J. 101, 106
(C.A.A.F. 2011)). “The legal test for improper argument is [(1)] whether the
argument was erroneous and [(2)] whether it materially prejudiced the
substantial rights of the accused.” Id. (citation and internal quotation marks
omitted). In application, “the argument by a trial counsel must be viewed
within the context of the entire court-martial[,]” and as a result, “our inquiry
should not be on words in isolation, but on the argument as ‘viewed in
context.’” United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) (quoting
Young, 470 U.S. at 16) (additional citation omitted). This inquiry, however,
remains objective, “requiring no showing of malicious intent on behalf of the
prosecutor” and unyielding to inexperience or ill preparation. Hornback, 73
M.J. at 160.
   When a proper objection to a comment is made at trial, the issue is
preserved and we review for prejudicial error. United States v. Fletcher, 62
M.J. 175, 179 (C.A.A.F. 2005) (citing Art. 59, UCMJ). We find the TC’s
comments, where preserved by objection, do not constitute prosecutorial
misconduct.3 Even assuming, arguendo, the TC’s actions amounted to
prosecutorial misconduct, the errors did not materially prejudice a
substantial right of the appellant and therefore do not warrant relief.
    If there is no objection to improper argument, we review for plain error.
See United States v. Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017); Fletcher, 62 M.J.
at 179 (citing United States v. Rodriguez, 60 M.J. 87, 88 (C.A.A.F. 2004)); see
also United States v. Diffoot, 54 M.J. 149, 151 n.1 (C.A.A.F. 2000) (“Despite
the language of ‘waiver’ in RCM 919(c) . . . we have repeatedly held that
where there is no defense objection to the prosecution’s argument, we review
for plain error”) (citing United States v. Carpenter, 51 M.J. 393, 396 (1999);
United States v. Sweeney, 48 M.J. 117, 121 (C.M.A. 1998); cf. United States v.
Causey, 37 M.J. 308, 312 (CMA 1993) (Sullivan, J., concurring)). To succeed
under that plain error analysis, the appellant must demonstrate: “‘(1) there
was error; (2) the error was plain or obvious; and (3) the error materially
prejudiced a substantial right of the accused.’” United States v. Tunstall, 72



   3  See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974) (reversing the
First Circuit’s finding of prosecutorial misconduct because the “distinction between
ordinary trial error of a prosecutor and that sort of egregious misconduct . . . should
continue to be observed.”).




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                    United States v. Motsenbocker, No. 201600285


M.J. 191, 193-94 (C.A.A.F. 2013) (quoting United States v. Girouard, 70 M.J.
5, 11 (C.A.A.F. 2011)).
    However, a recent decision by our superior court has called into question
the continued applicability of plain error analysis to improper argument, not
objected to at trial. In Ahern, the Court of Appeals for the Armed Forces
(CAAF) analyzed the difference between “forfeiture” and “waiver,”
recognizing that courts “review[] forfeited issues for plain error” but cannot
“review waived issues because a valid waiver leaves no error to correct on
appeal.” 76 M.J. at 197 (citations and internal quotation marks omitted).
“[F]orfeiture is the failure to make the timely assertion of a right,” while
“waiver is the intentional relinquishment or abandonment of a known right.”
Id. (citations and internal quotation marks omitted). The right at issue in
Ahern was contained in MILITARY RULE OF EVIDENCE (MIL. R. EVID.) 304,
MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.) and specifically
provided that failure to object constitutes waiver.4 The CAAF held that the
absence of any mention of “plain error review”—when those words appear
elsewhere in the Manual for Courts-Martial5—indicates an unambiguous
waiver, leaving the court nothing to review on appeal. Id.
    The government avers that Ahern also applies to RULE FOR COURTS-
MARTIAL (R.C.M.) 919(c), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2016 ed.), which states, “[f]ailure to object to improper argument before the
military judge begins to instruct the members on findings shall constitute
waiver of the objection.” Analyzing R.C.M. 919(c) in light of Ahern, our sister
court came to the same conclusion. Finding that the “plain language of the
rule, and our superior court’s decision in Ahern” compelled their result, the
Army Court of Criminal Appeals held that the failure to object to government
counsel’s closing argument constituted waiver, leaving nothing to review on
appeal. United States v. Kelly, No. 20150725, 2017 CCA LEXIS 453, at *9 (A.
Ct. Crim. App. 5 Jul 2017). Indeed, like MIL. R. EVID. 304, R.C.M. 919(c)


    4 See MIL. R. EVID. 304(f)(1) (“Motions to suppress or objections under this rule, or
MIL. R. EVID. 302 or 305, to any statement or derivative evidence that has been
disclosed must be made by the defense prior to submission of a plea. In the absence of
such motion or objection, the defense may not raise the issue at a later time except as
permitted by the military judge for good cause shown. Failure to so move or object
constitutes a waiver of the objection.”) (emphasis added).
    5 See, e.g., RULE FOR COURTS-MARTIAL 920(f), MANUAL FOR COURTS-MARTIAL,
UNITED STATES (2016 ed.) (providing for “waiver” but only “in the absence of plain
error”); see also United States v. Payne, 73 M.J. 19, 23, n.3 (C.A.A.F. 2014) (applying
a plain error analysis to R.C.M. 920(f), which states that the failure to object
constitutes “‘waiver of the objection in the absence of plain error’”).




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                   United States v. Motsenbocker, No. 201600285


provides no provision for plain error review. However, application of waiver—
as opposed to forfeiture—when a defense counsel fails to object to improper
argument of government counsel, would significantly depart from the CAAF’s
improper argument jurisprudence.
    We also recognize that “[o]verruling by implication is disfavored and the
service courts of criminal appeals must adhere to [the CAAF’s] precedent
even when they believe that subsequent decisions call earlier decisions into
question.” United States v. Davis, 76 M.J. 224, 228 n.2 (C.A.A.F. 2017) (citing
United States v. Pack, 65 M.J. 381, 383–84 (C.A.A.F. 2007) (additional
citation omitted)). We conclude that Ahern is distinguishable for the following
reasons:
   First, Ahern was not a case that involved allegations of improper
argument under R.C.M. 919(c); rather, it dealt specifically with waiver as it
applied to MIL. R. EVID. 304. As such, the defense counsel in Ahern had
numerous opportunities to object to the admission of the evidence at issue
both before and during the trial. Ahern, 76 M.J. at 198. Yet, Ahern’s defense
counsel did not contest a government motion in limine to admit the evidence,
and later affirmatively stated he had no objection to the admission of that
evidence. Id.6
    Second, the CAAF decided Ahern less than three months after deciding
Pabelona, but did not cite or otherwise reference Pabelona, much less
explicitly discuss any impact of its holding in Ahern on review of allegations
of improper arguments—unobjected to at trial. See Pabelona, 76 M.J. at 11
(“Because defense counsel failed to object to the arguments at the time of
trial, we review for plain error.”) (citation omitted).
    Consequently, upon reconsideration, we conclude Ahern is distinguishable
from the case at bar and does not mandate the application of waiver.7
Instead, we adhere to the longstanding precedent reaffirmed in Pabelona,
Fletcher, and Diffoott and apply a plain error analysis to those allegations of
improper argument not preserved by objection.




   6  MIL. R. EVID. 105 places “full responsibility upon counsel for objecting to or
limiting evidence.” Ahern, 76 M.J. at 198 (citation omitted).
   7 We note a significant difference between applying waiver under MIL. R. EVID.
304 after an accused fails to object to evidence of a confession or admission prior to
the entry of pleas, and R.C.M. 919(c) which requires objections be immediately
recognized and made during closing argument.




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                      United States v. Motsenbocker, No. 201600285


   a. Introducing Navy training against military judge’s instruction
    “An accused is supposed to be tried . . . [on] the legally and logically
relevant evidence presented.” United States v. Schroder, 65 M.J. 49, 57
(C.A.A.F. 2007). Thus, “[t]he prosecutor should make only those arguments
that are consistent with the trier’s duty to decide the case on the evidence,
and should not seek to divert the trier from that duty.” ABA CRIMINAL
JUSTICE STANDARDS FOR THE PROSECUTION FUNCTION 3-6.8(c) (4th ed. 2015)
(emphasis added). As a result, a court of appeals may find prosecutorial
misconduct where the TC “repeatedly and persistently” violates the RULES
FOR COURTS-MARTIAL and MILITARY RULES OF EVIDENCE contrary to
instructions, sustained objections, or admonition from the military judge.
Hornback, 73 M.J. at 160.8
    Here, the appellant contends the TC “ma[de] inaccurate references to
law”9 when he “told the members that they were allowed to use their [Navy
sexual assault and bystander] training in determining the case”10 contrary to
a preliminary instruction from the military judge to disregard such
training.11
   Throughout the course of the entire proceeding, the TC mentioned the
Navy sexual assault and bystander training on three occasions—the first
during cross-examination of a character witness for the defense, Petty Officer
First Class J.D.:
         Q: Now, OS2 Motsenbocker – did he receive any training
         regarding bystander awareness?
         A: Yes, we all have.
         Q: Can you summarize briefly what is that? What does that
         training entails (sic)?



   8  See, e.g., United States v. Crutchfield, 26 F.3d 1098, 1103 (11th Cir. 1994)
(finding prosecutorial misconduct in repeated violation of Federal Rules of Evidence
404, 608, and 609, where such violations “continued even after the court instructed
the prosecutor as to their impropriety”).
   9   Appellant’s Brief at 23.
   10   Id. at 26 (footnote omitted).
   11 Record at 146. (“As members, in the naval service, we have all received
extensive training during recent years on the issue of sexual assault in the military.
During that training, we are provided definitions and policies regarding sexual
assault. Any definitions, explanations or policies provided during that training must
be completely disregarded by you in this criminal trial.”).




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                         United States v. Motsenbocker, No. 201600285


         A: Bystander Intervention would be basically if you see
         something wrong happening. It’s our duty to step in and stop it
         before it gets out of hand.
         Q: And that pertains specifically to sexual assaults, right?
         A: Yes.
         Q: When you see somebody drunk who’s maybe in a
         compromised position we’re supposed to protect them, right?
         A: Yes, sir.
         Q: We’re not supposed to have sex with people in compromised
         positions, right?
         A: Yes, sir.12
    Later in closing argument, the TC argued that “[s]omething overcame his
discipline, his self-control, training that he’s undergone with the Navy.” He
further argued that in addition to using common sense, the members were
“allowed to use your training. . . . your knowledge and experience in
determining this case.”13 Immediately following this statement, however, the
TC warned the members that any sexual assault prevention and response
(SAPR) training “is out the window” and to only apply the law as read and
provided to them by the military judge.14
    Concluding his closing argument, the TC arguably reintroduced
bystander intervention training when he argued the appellant “was not
looking out for a shipmate in need, at all.”15 He again emphasized the
appellant’s sexual desires “trumped all the training that everyone in the
Navy gets about sexual assault” before asking the members to return a guilty
verdict.16



   12   Id. at 671-72.
   13   Id. at 766, 768.
   14 Id. at 768 (“Now, the judge just read you the instructions, that is, the law. That
is what sexual assault is. That is what abusive sexual contact is. I’m sure that you all
have preconceived notions about what consent means, what sexual assault means,
what abusive sexual contact means. We’ve all been through different SAPR
Trainings. You’ve heard people saying things like, one drink and you can consent. All
that stuff is out the window. That piece of paper that you, have in front of you those
pages, that’s the law that you need to apply, here, today.”) (emphasis added).
   15   Id. at 794.
   16   Id. at 795 (emphasis added).




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                 United States v. Motsenbocker, No. 201600285


    In conducting our plain error review, “we need only address the third
element of plain error because, even were we to assume error, we see no
evidence that the trial counsel’s arguments” regarding Navy sexual assault
and bystander training resulted in material prejudice to any of the
appellant’s substantial rights. Pabelona, 76 M.J. at 12. Although we do not
condone a TC’s references to Navy Sexual Assault Prevention and Response
SAPR training during courts-martial, the military judge correctly issued the
instruction for the members to disregard this training, and the TC reiterated
that message during his closing argument. Not only do we presume the
members follow the instructions of the military judge, United States v.
Jenkins, 54 M.J. 12, 20 (C.A.A.F. 2000), but the appellant’s repeated failure
to object also indicates “that either no error was perceived or any error
committed was inconsequential[,]” United States v. Sittingbear, 54 M.J. 737,
740 (N-M. Ct. Crim. App. 2001) (citation omitted).17
    For the reasons stated in our 10 August 2017 decision and in this
reconsideration, of Part II-B-1 and 1a of that decision, we again affirm the
findings and sentence.
   Judge FULTON and Judge SAYEGH concur.


                                       For the Court




                                       R. H. TROIDL
                                       Clerk of Court




   17  We conducted a similar plain error analysis in our prior decision as an
alternate resolution even if waiver did not apply. Motsenbocker, 2017 CCA LEXIS
539, at *33 n.63.




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