                         UNITED STATES, Appellee

                                         v.

                     Charles C. HORNBACK, Private
                     U.S. Marine Corps, Appellant

                                  No. 13-0442
                        Crim. App. No. 201200241

       United States Court of Appeals for the Armed Forces

                         Argued January 13, 2014

                          Decided March 6, 2014

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


                                     Counsel


For Appellant:    Lieutenant David C. Dziengowski, JAGC, USN
(argued).


For Appellee: Colonel Stephen C. Newman, USMC (argued); Brian
K. Keller, Esq. (on brief).


Military Judge:    Stephen F. Keane



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Hornback, No. 13-0442/MC


     Judge STUCKY delivered the opinion of the Court.

     We granted review to consider whether trial counsel’s

conduct constituted prosecutorial misconduct, and if so, whether

Appellant’s substantial right to a fair trial was materially

prejudiced.   We hold that significant prosecutorial misconduct

occurred, but that the error was ultimately not prejudicial.    We

therefore affirm the judgment of the United States Navy-Marine

Corps Court of Criminal Appeals.

                      I.   Posture of the Case

     Contrary to his pleas, Appellant was convicted by a panel

of members sitting as a special court-martial of one

specification each of using “spice,” signing a false official

statement, and larceny of military property, in violation of

Articles 92, 107, and 121, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. §§ 892, 907, 921 (2012).   He was acquitted of

five other specifications including wrongfully using Xanax,

larceny, solicitation, using provoking speech, and communicating

threats, in violation of Articles 92, 121, and 134, UCMJ, 10

U.S.C. §§ 892, 921, 932 (2012).    The convening authority

approved the adjudged sentence of a bad-conduct discharge and

three months of confinement, and the United States Navy-Marine

Corps Court of Criminal Appeals affirmed.    United States v.

Hornback, No. NMCCA 201200241, 2013 CCA LEXIS 114, at *13, 2012

WL 7165301, at *5 (N-M. Ct. Crim. App. Feb. 21, 2013).


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United States v. Hornback, No. 13-0442/MC


                          II.    Background

     During the Government’s case-in-chief, trial counsel called

eleven witnesses.   The first witness, Lance Corporal (LCpl)

Powers, testified that Appellant asked her if she smoked spice,

showed her a container of what he said was spice, and proceeded

to smoke the substance that he said was spice from a pipe.     The

second witness, Karen Carney, testified that Appellant showed

her a jar of what looked like marijuana, but Appellant said was

spice.   She testified that Appellant told her that spice “[g]ets

you high like marijuana,” but “[d]oesn’t show up on a drug

test.”   She further testified that she “smoked a hit” of the

substance Appellant identified as spice, and watched Appellant

smoke the rest of it.   She also testified as to a second

occasion that she saw Appellant smoke a pipe loaded with the

substance he identified as spice.

     No objectionable testimony was elicited from these first

two witnesses.   The rest of the witnesses, however, proved quite

problematic for trial counsel.    Trial counsel first questioned

LCpl Teets regarding Appellant’s knowledge of the effects of

spice and asked whether Appellant ever asked LCpl Teets to use

drugs.   Although defense counsel objected on the bases of

speculation and improper lay opinion, the military judge called

an Article 39(a), UCMJ, session and questioned trial counsel

about the admissibility of the testimony under Military Rule of


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United States v. Hornback, No. 13-0442/MC


Evidence (M.R.E.) 404(b).    The military judge asked, “was that

uncharged misconduct, 404(b), with reference to the spice[?]     I

mean, what was the purpose of asking that witness about all that

first background?   He didn’t smoke spice with this witness, did

he?”   Defense counsel did not object on M.R.E. 404(b) grounds,

however, and the military judge overruled the stated objection.

Later during LCpl Teets’s testimony, the military judge called a

second Article 39(a), UCMJ, session, during which he cautioned

trial counsel to “make sure you are staying away from” character

evidence.

       The next witness was Gunner’s Mate Third Class (GM3)

Robidart, a friend of Appellant’s wife.    Trial counsel asked

whether Appellant’s wife ever spoke about their marriage to her

or told GM3 Robidart anything about why she and Appellant were

separated, apparently in an attempt to elicit testimony that

Appellant was using drugs.    Defense counsel objected on the

grounds of relevance and improper character evidence.    The

military judge called another Article 39(a), UCMJ, session.      The

military judge explained that “[y]ou can’t just put out there

that he used drugs at some point.     You have to factor it in to

the period charged, right?”   The objection was sustained and the

members returned.

       Trial counsel continued to question GM3 Robidart, this time

asking, “did [Appellant] say anything that might make you


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United States v. Hornback, No. 13-0442/MC


believe he was speaking from personal experience with drugs?”

The military judge sua sponte called another Article 39(a),

UCMJ, session, discussing the problem with trial counsel:

     MJ: I am concerned that you are getting into what
     would be 404(b) evidence or other acts evidence.
     We’ve got to narrow this down. I don’t know what time
     period we’re talking about. That fact that he used
     drugs before, you know, if he was having conversations
     about using drugs outside the charged time period I
     don’t want that going to the members. I mean you can
     make an objection about that.

     . . . .

     I don’t want to hear any testimony about drug use --
     the accused admitting to drug use -- unless it is the
     accused admitted to drug use during the charged
     period. Okay?

     TC:   Yes, sir.

     MJ: All right. So first orient to the charged
     period. I don’t want there to be the possibility that
     there was drug use before or after the charged period
     being admitted into evidence. That would be
     inadmissible. All right?

     TC:   Yes, sir.

     DC: And, Your Honor, I would also ask that it be to
     the substances charged. I believe there may be an
     allegation of ecstasy.

     MJ: Exactly. And, yeah, I don’t want just drug use,
     coke, cocaine, ecstasy, heroin, marijuana. I want the
     drug. I want it specified to the drug and during the
     time period if he has made an admission to that. . . .

The military judge then provided trial counsel the opportunity

to question GM3 Robidart outside the presence of members.    Trial

counsel took the opportunity, and following the questioning,



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United States v. Hornback, No. 13-0442/MC


defense counsel objected on the bases of hearsay and

speculation.    The military judge sustained the objection and

reviewed the limits of hearsay with trial counsel.1      Trial

counsel responded that she was trying to elicit circumstantial

evidence that the accused was someone who may have used drugs,

based on his familiarity with drugs.      The military judge

responded once again that that would be impermissible character

evidence, stating, “I mean if someone is charged with using

marijuana, you can’t come in here and start eliciting testimony

or evidence that, you know, he’s been around marijuana or he

knows things about marijuana.      I mean its impermissible

character or other acts evidence.”

       The members returned, and after one proper question, trial

counsel asked GM3 Robidart, “[w]hat was his personality like?”

Defense counsel objected, and the military judge again sent the

members back out.       This time, the military judge went so far as

to specifically tell trial counsel what questions she could ask.2


1
    The MJ explained:

       [A]ny statement his wife made to her is hearsay. It
       is not admissible. Any statements [LCpl Teets] made
       to her is hearsay regarding the accused [sic] drug
       use. That is not admissible.
2
    The MJ explained:

       Here is how this should go. How often did you see the
       accused? Did you interact with him on a daily basis?
       Were you able to observe the way he acted at work?

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United States v. Hornback, No. 13-0442/MC


The members reentered the courtroom, and after one transcribed

page of questioning, trial counsel again ventured into improper

character evidence.   The military judge sua sponte interrupted,

stating, “Okay.   Stop this.   Disregard all that testimony.

Strike that from your memory as though you’ve never heard it.

Can all members follow that instruction?”    The members responded

affirmatively.

     Trial counsel went on to ask GM3 Robidart about Appellant’s

use of “any prescription drugs,” and GM3 Robidart testified that

Appellant said he would “overtake what he was supposed to be

taking . . . . [t]o get high.”   The military judge sustained

defense counsel’s objection on M.R.E. 404(b) grounds and

instructed the members to disregard the testimony.   Trial

counsel continued to ask about unidentified prescription drugs,

defense counsel objected, and the military judge called another

Article 39(a), UCMJ, session.    After discussing what trial

counsel was trying to elicit, the military judge explained,

“[t]hat is clearly impermissible evidence.   You can’t say that

he used drugs -- this drug to get high.   He misused this

prescription drug on this occasion in order to get high to prove



     You don’t have to get into the specifics. How well do
     you know him? How long did he work for you,
     et[]cetera, et[]cetera. Okay. Without her talking
     about the specifics. Okay. And then presumably, you
     have some questions about the change in that. Is that
     right?

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United States v. Hornback, No. 13-0442/MC


that he therefore used drugs and other prescription drugs on a

separate occasion to get high.”    The military judge explained

why he was striking the testimony:

     My concern here is that you are getting into all these
     potential bad acts that aren’t specific to the charged
     offenses which would blow this case up. I mean you
     just can’t have that.

     . . . .

     You need direct evidence that a crime was committed.
     You can’t put all this evidence out there that, yeah,
     this guy is kind of into drugs and he likes to -- he
     knows a lot about drugs and he knows a lot about drugs
     that can’t be detected in your system. I mean you
     have to show evidence that he committed the specific
     crime on the specific date that you alleged he
     committed the specific crime. Not that he’s a bad
     guy.

     The next Government witness was Lieutenant Commander (LCDR)

Terrien, Appellant’s doctor.   Trial counsel asked about

Appellant’s prescription for Seroquel, and LCDR Terrien

explained that it is a medication for schizophrenia and bipolar

conditions.    Defense counsel objected, the military judge

sustained and instructed the members to disregard the answer.

After a few more questions, the military judge sua sponte called

an Article 39(a), UCMJ, session.       The military judge explained

that he was “concerned that the jury’s been tainted by hearing

evidence that [Appellant] was taking schizophrenia medication.”

The military judge chided defense counsel for failing to object




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United States v. Hornback, No. 13-0442/MC


on privilege grounds, and explained that he would give an

instruction after cross-examination.

     The testimony of the next two Government witnesses, LCpl

Carillo and Gunnery Sergeant (GySgt) French, was also the

subject of sustained objections on M.R.E. 404(b) grounds.        Each

time, the military judge instructed the members to disregard the

testimony.

     Next, trial counsel called Corporal (Cpl) Morris,

Appellant’s roommate.    After one sustained objection to improper

character evidence, trial counsel continued to elicit improper

testimony and the military judge called another Article 39(a),

UCMJ, session.    Again, the military judge explained, “[w]hat you

can’t do is get into a bunch of evidence that the accused is a

druggy and, therefore, he probably used some drug at some point.

That’s not admissible evidence.”       The military judge then

instructed trial counsel to practice her examination of Cpl

Morris outside of the presence of members, explaining:

     MJ: I’m tired of having the members being exposed to
     basically character evidence that’s not admissible. I
     mean you can’t -- I just want to reiterate to you, you
     can’t present evidence that the accused is a druggy;
     therefore, he probably used drugs. You need to
     present evidence that he specifically used drugs on a
     certain day and time.

     TC:     Yes, sir.

     MJ: And a specific drug. Not that he’s just a drug
     abuser generally and so you should convict him of
     using drugs. You can’t do that.


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United States v. Hornback, No. 13-0442/MC

     TC:    Yes, sir.

     . . . .

     MJ: You could do that at an ad board.     You can’t do
     that in federal court.

After the members returned, trial counsel’s examination of Cpl

Morris drew one additional sustained M.R.E. 404(b) objection.

     The Government called three more witnesses during its case-

in-chief.   During the examination of LCpl Kelly, objections to

improper M.R.E. 404(b) evidence and hearsay were sustained, and

during the examination of Chief Warrant Officer 3 (CWO3) Easton,

a hearsay objection was sustained.

     Trial counsel also struggled to avoid statements that the

military judge ruled to be improper character evidence during

her closing argument.   She argued that “[t]he accused is like a

criminal infection that is a plague to the Marine Corps.”

Defense counsel objected on M.R.E. 404(b) grounds, and the

military judge sustained the objection.   Shortly thereafter,

trial counsel again argued, “[h]e became that criminal

infection.”    Defense counsel objected and the military judge

sustained the objection.   Trial counsel then went on to argue,

“And the command has taken form -- has taken action in the form

of these charges before you.   The government is confident that

you will find him guilty beyond a reasonable doubt.”   The

military judge immediately interrupted, stating:



                                 10
United States v. Hornback, No. 13-0442/MC

     Hang on a second.

     Okay. Members, a couple things.

     One, with respect to that last question, you all agree
     the convening authority is not expecting a certain
     result in this case, that you’re to try the case or
     decide the issues based on the evidence presented
     before you, and no one is presuming any certain
     outcome in this case.

     Additionally, throughout the course of this trial and
     even during closing argument, I sustained several
     objections to character evidence.

     You may not consider any evidence that was the subject
     of a sustained objection for any purpose, and you may
     not consider -- those objections related to character
     evidence, you may not conclude based on any of that
     evidence that the accused is a bad person or has
     general criminal tendencies and that he, therefore,
     committed the offenses charged. You need to base your
     determination on the admitted evidence in this case
     and determine if the offenses were committed beyond a
     reasonable doubt at the specific times and in the
     specific manners in which they were alleged.

The military judge asked if all members could follow that

instruction, and the panel responded affirmatively.

                            III.    Law

     Where proper objection is entered at trial, this Court

reviews alleged prosecutorial misconduct for prejudicial error.

United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005)

(citing Article 59, UCMJ, 10 U.S.C. § 859 (2000)).    Most of the

alleged misconduct in this case was either objected to at trial,




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United States v. Hornback, No. 13-0442/MC

or the subject of a sua sponte interruption by the military

judge.3

     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.’”   Id. at 178 (quoting Berger

v. United States, 295 U.S. 78, 84 (1935)).   “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, 295 U.S. at 88).

     The presence of prosecutorial misconduct does not

necessarily mandate dismissal of charges or a rehearing.      “It is

not the number of legal norms violated but the impact of those

violations on the trial which determines the appropriate remedy

for prosecutorial misconduct.”   Id. at 6.   In determining

whether prejudice resulted from prosecutorial misconduct, this

Court will “look at the cumulative impact of any prosecutorial

misconduct on the accused’s substantial rights and the fairness

and integrity of his trial.”   Fletcher, 62 M.J. at 184 (quoting

3
  Appellant argues that additional instances of misconduct
occurred during trial counsel’s opening statement and closing
argument, but were not objected to at trial. We conclude that
Appellant has not shown that these instances constitute plain
error.

                                 12
United States v. Hornback, No. 13-0442/MC

Meek, 44 M.J. at 5).     This Court has identified “the best

approach” to the prejudice inquiry as requiring the 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.”       Id.   “In other words,

prosecutorial 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 evidence alone.”

Id.

                            IV.   Discussion

              A.    Did prosecutorial misconduct occur?

      Trial counsel repeatedly and persistently elicited improper

testimony, despite repeated sustained objections as well as

admonition and instruction from the military judge.       Other

courts of appeals have held that repeated violations of rules of

evidence can constitute prosecutorial misconduct.       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”); Beck v. United States, 33

F.2d 107, 114 (8th Cir. 1929) (finding prosecutorial misconduct

where the prosecutor continued to ask improper questions after


                                   13
United States v. Hornback, No. 13-0442/MC

sustained objections, reasoning, “there is no excuse for

offending twice, after the court has ruled upon the matter”).

We find that trial counsel’s repeated and persistent violation

of the Rules for Courts-Martial and Military Rules of Evidence

constitutes prosecutorial misconduct in this case.    See Meek, 44

M.J. at 5 (defining prosecutorial misconduct as “violation of

some legal norm or standard, e.g., a constitutional provision, a

statute, a Manual rule, or an applicable professional ethics

canon”); Rule for Court-Martial (R.C.M.) 502(d)(5) Discussion

(trial counsel should be prepared to “make a prompt, full, and

orderly presentation of the evidence at trial,” and consider the

Military Rules of Evidence).   It matters not that trial counsel

seems to have been merely inexperienced, ill prepared, and

unsupervised in this case.   Although one may wonder what her

supervisors were doing during the course of Appellant’s trial,

the prosecutorial misconduct inquiry is an objective one,

requiring no showing of malicious intent on behalf of the

prosecutor, and we find none here.

               B.   Did Appellant suffer prejudice?

     To determine whether Appellant suffered prejudice to a

substantial right from the misconduct, this Court considers the

Fletcher 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.”    62 M.J. at 184.


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United States v. Hornback, No. 13-0442/MC

     The prosecutorial misconduct in this case was sustained and

severe.   Trial counsel attempted to elicit improper testimony

from nearly every witness called during the Government’s case-

in-chief, and made arguably improper argument during her closing

argument.   She repeatedly appeared unable to either understand

or abide by the military judge’s rulings and instruction during

the two-and-a-half day trial on the merits.   As a result of this

pervasive impropriety, we find that the first Fletcher factor

weighs in Appellant’s favor.

     When we consider curative measures, however, the military

judge appears to have left no stone unturned in ensuring that

the members considered only admissible evidence in this case.

He called multiple Article 39(a), UCMJ, sessions to prevent

tainting the panel.   He issued repeated curative instructions to

the members, each time eliciting that they understood and would

follow his instructions.   He also issued a comprehensive

instruction during trial counsel’s closing argument, again

explaining that the members could not consider evidence that was

the subject of a sustained objection for any purpose.   The

military judge acted early and often to ameliorate trial

counsel’s misconduct.   Compare United States v. Thompkins, 58

M.J. 43, 47 (C.A.A.F. 2003) (holding that “[t]he ameliorative

actions of the military judge . . . secured the fairness and

impartiality of the trial” where the military judge engaged in


                                15
United States v. Hornback, No. 13-0442/MC

timely remedial actions including curative instructions to

members), with Fletcher, 62 M.J. at 185 (finding the military

judge’s curative efforts to be “minimal and insufficient” where

he gave only a generic limiting instruction, chastised trial

counsel on a single occasion, and failed to sua sponte interrupt

trial counsel).   Here, the military judge acted effectively to

secure the fairness of Appellant’s trial by protecting the panel

from potentially improper evidence and issuing curative

instructions when appropriate.   This factor weighs heavily in

the Government’s favor.

     Turning to the third Fletcher factor, Appellant stands

convicted of signing a false official statement, larceny, and

using spice.   The false official statement conviction arose from

signing a false record stating that he was not married to a

military member, when in fact he was.    The larceny conviction is

based on the amount of Basic Allowance for Housing (BAH) he was

overpaid as a result of the false statement.    The evidence of

these two convictions was strong.     Trial counsel presented

documentary evidence of the false record with Appellant’s

signature, as well as testimony by the officer in charge of

service records at Appellant’s base, CWO3 Easton, who explained

the workings of the dependency forms.    As for the larceny, trial

counsel submitted BAH documents showing the amount Appellant was

paid by the Government while receiving BAH at the with-


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United States v. Hornback, No. 13-0442/MC

dependents rate, plus additional testimony by CWO3 Easton

explaining the process.   Moreover, the improper character

evidence that trial counsel sought to elicit in this case

related to the drug offenses; it did not implicate the larceny

or false official statement offenses.   For these specifications,

the strength of the evidence weighs heavily in the Government’s

favor.

     The evidence supporting the spice conviction was not as

strong as that supporting the larceny and false official

statement convictions, but it was substantial.   As Appellant

points out, there was no drug test, and the military judge

commented on the weakness of some of the evidence trial counsel

attempted to submit.   Nonetheless, the first two witnesses

established that they saw Appellant smoking a substance that he

identified to them as spice.   Furthermore, the military judge

instructed the panel to disregard the improper testimony

elicited by trial counsel, and “[a]bsent evidence to the

contrary, court members are presumed to comply with the military

judge’s instructions.”    Thompkins, 58 M.J. at 47.   There is no

evidence here that the members failed to comply with the

military judge’s instructions in convicting Appellant of the

spice offense.   To the contrary, and despite the clumsy attempts

by the trial counsel to elicit improper character evidence

related to drug use generally, the fact that the panel acquitted


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United States v. Hornback, No. 13-0442/MC

Appellant of other, weaker drug charges indicates that it took

the military judge’s instructions to disregard impermissible

character evidence seriously.

     Balancing these factors, we are confident that the members

convicted Appellant on the basis of the evidence alone.   The

Appellant was not prejudiced by trial counsel’s misconduct in

this case.   Accordingly, the judgment of the United States Navy-

Marine Corps Court of Criminal Appeals is affirmed.




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United States v. Hornback, No. 13-0442/MC


     BAKER, Chief Judge, with whom OHLSON, Judge, joins

(dissenting):

     I agree with the majority that prosecutorial misconduct

occurred, which is the rubric used to describe the repeated

improper questioning and comment exhibited in this case.    I also

agree that the proper method for determining whether such

misconduct was prejudicial to a substantial right is through

application of the factors outlined in United States v.

Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005).     However, for the

reasons I stated below, I respectfully dissent in this case.

Furthermore, I join Judge Ohlson’s dissent in this case.

     As the Supreme Court stated in Smith v. Phillips, “the

touchstone of due process analysis in cases of alleged

prosecutorial misconduct is the fairness of the trial, not the

culpability of the prosecutor. . . . [T]he aim of due process is

not punishment of society for the misdeeds of the prosecutor but

avoidance of an unfair trial to the accused.”    455 U.S. 209, 219

(1982) (citations and internal quotation marks omitted).    The

essential question is not whether trial counsel’s conduct was

improper, but whether it resulted in “a failure to observe that

fundamental fairness essential to the very concept of justice.”

Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974) (citation

and internal quotation marks omitted).
United States v. Hornback, No. 13-0442/MC


     I agree that the prosecutorial misconduct in this case was

sustained.   There were eighteen instances of impermissible

evidence coming before the members.      Twelve of these involved

improper character evidence.   The military judge also sustained

three relevance objections, two hearsay objections, and one

objection on the grounds of psychotherapist-patient privilege.

In addition, during closing argument, trial counsel improperly

invoked the convening authority.       The misconduct was also

severe.   As noted, the majority of improper conduct involved the

introduction of character evidence.      Character evidence is

particular anathema to U.S. notions of fair trial, running the

risk as it does that members may be swayed to convict not on the

basis of evidence, but because the defendant is a bad person

deserving of punishment.   Thus, it is in evaluating the final

two Fletcher factors where I break with the majority.       Upon

analyzing all three factors, I believe that the correct

conclusion is that Appellant did not receive a fair trial, as I

am not convinced on this record that members convicted Appellant

on the basis of admissible evidence alone.

Measures Adopted to Cure the Misconduct

     It is evident that the military judge attempted to

neutralize any prejudice resulting from trial counsel’s conduct.

As documented by the majority, his interjections were frequent

and forceful.   He called numerous Article 39(a), Uniform Code of

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United States v. Hornback, No. 13-0442/MC


Military Justice (UCMJ), 10 U.S.C. § 839(a) (2012), sessions in

which he instructed trial counsel as to what was and was not

admissible.   In addition, the military judge delivered curative

instructions on most, though not all, occasions when improper

evidence did come before the members.1

     This Court has determined that, absent evidence to the

contrary, it will presume that members follow a military judge’s

instructions.   United States v. Taylor, 53 M.J. 195, 198

(C.A.A.F. 2000).   However, this case begs the question:    when is

too much, too much?   The Supreme Court, in Donnelly, also

established that curative instructions are not in fact cure-

alls, noting that “some occurrences at trial may be too clearly

prejudicial for such a curative instruction to mitigate their

effect.”   416 U.S. at 644.   This notion that a curative

instruction is not automatically assumed sufficient to remedy

all misconduct is echoed in a number of circuit court decisions,

including from the United States Courts of Appeals for the

Third, Ninth, and Eleventh Circuits.     Moore v. Morton, 255 F.3d

95, 119-20 (3d Cir. 2001); United States v. Weatherspoon, 410

F.3d 1142, 1152 (9th Cir. 2005); United States v. Kerr, 981 F.2d

1050, 1054 (9th Cir. 1992); United States v. Simtob, 901 F.2d

1
  It is hard to find fault with the military judge’s actions,
especially in the absence of a motion for a mistrial. However,
this case does prompt the question: at what point should a
military judge sua sponte declare a mistrial or call in the
supervising trial attorney?
                                  3
United States v. Hornback, No. 13-0442/MC


799, 806 (9th Cir. 1990); United States v. Crutchfield, 26 F.3d

1098, 1103 (11th Cir. 1994).

     Despite repeated instructions from the military judge about

what sort of evidence was proper, trial counsel solicited

impermissible evidence -- evidence that came before members --

that Appellant claimed he had used prescription drugs to get

high, that he had been accused of stealing a motorcycle, that he

had been prescribed medication used to treat schizophrenia, that

he had a history of nonjudicial punishments, that he failed to

pay his rent, that possible drug paraphernalia was found in his

room, and that his behavior had been angry and erratic.    In the

presence of the members, trial counsel committed often multiple

violations of numerous rules of evidence including Military Rule

of Evidence (M.R.E.) 402 (relevance), M.R.E. 404 (character

evidence), M.R.E. 513 (psychotherapist-patient privilege), and

M.R.E. 802 (hearsay); she invoked the convening authority in

violation of Article 37, UCMJ, 10 U.S.C. § 837 (2012); and she

impermissibly made arguments in closing calculated to inflame

passions and prejudices.   Rule for Courts-Martial (R.C.M.)

919(b) Discussion.

     Given the extent, pervasiveness, and character of the

prosecutor’s improper questions and comments, looking at the

context of the entire trial, I believe that the curative

instructions were not sufficient to counteract the impermissible

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United States v. Hornback, No. 13-0442/MC


material that leaked in.   The critical question is not whether

the military judge delivered curative instructions but whether

they were enough to ensure that members did indeed make their

decision based solely on the evidence, not on the basis that

Appellant was a bad person.

The Weight of Evidence Supporting Conviction

     Appellant was ultimately convicted of three out of eight

specifications:   wrongful use of spice (Article 92, UCMJ),

making a false official statement (Article 107, UCMJ), and

larceny of military property (Article 121, UCMJ).   I agree with

the majority that the evidence supporting the later two

convictions was strong.    In addition, very little of the

prosecutorial misconduct touched upon the larceny and false

official statement charges.

     However, the evidence supporting the spice charge was

weaker and largely circumstantial.    Two witnesses, Karen Carney

and Lance Corporal Kimberly D. N. Powers, testified that they

saw Appellant smoke something in a glass pipe that he told them

was spice.   Ms. Carney also took one hit of the substance

Appellant was smoking but stopped there, as she did not like the

taste, and she felt none of its effects.    There was no drug

test, no analysis of the substance Appellant called spice, and

no testimony as to the characteristics or effects of smoking

spice.   Aside from this, the Government included some highly

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United States v. Hornback, No. 13-0442/MC


circumstantial evidence solicited from Lance Corporal Joshua N.

Teets.   Teets testified that Appellant told him spice could not

be detected in a drug test, the inference being Appellant knew

so much about spice because he had smoked it.   Also of note is

the fact that the Marine Corps regulation banning the use of

spice describes it as “a mixture of medicinal herbs laced with

synthetic cannabinoids or cannabinoid mimicking compounds” and

forbids the actual or attempted possession or use of any

“derivative, analogue, or variant” of the substance.   Dep’t of

Defense, U.S. Marine Corps Forces, Pacific Order 5355.2A,

Prohibited Substances para. 1-3.b. (July 30, 2010).    This

description is narrow enough that it is feasible members could

find that possession and use of an untested substance that

Appellant simply called spice did not provide sufficient

evidence that Appellant actually used or possessed a variety of

spice covered by this order.

     In addition, much of the improper evidence that came before

the members did touch upon the drug charges, including Gunner’s

Mate 3 Malaea Robidart’s testimony that she had overheard drug-

related conversations having to do with Appellant and that he

told her he used prescription medications to get high, Corporal

P. Kelly’s testimony that he found a glass bowl in Appellant’s

room, testimony referencing Appellant’s behavior changes

including recent angry and sporadic behavior, reference to the

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United States v. Hornback, No. 13-0442/MC


disintegration of Appellant’s marriage possibly due to drug-

related issues, and evidence indicating his overall poor

character, including a history of previous nonjudicial

punishments.   This could be enough to convince members that

Appellant was the type of person who would do drugs and tip any

doubts they had in the “beyond reasonable” direction.

     Though he ultimately denied Appellant’s R.C.M. 917 motion

to dismiss, the military judge himself commented about the

shakiness of the spice charge.   “I’m sensitive to the situation

that you’re in where you don’t have good evidence to convict the

guy of what you believe he did, but that’s the American judicial

system.”   Overall, the Government’s case on the spice charge was

weak, as the military judge noted.   Thus it is conceivable the

prosecutor’s misconduct swayed members towards a conviction they

might not otherwise have made.   In context, the fact that

members acquitted on five of eight charges can cut both ways.

It can suggest that members carefully followed the military

judge’s instruction.   But it can also suggest that members found

the Government’s case close and were open to persuasion, in

which case character evidence may have made a difference, either

directly or indirectly, by giving members a margin of comfort

that, even if there was doubt, Appellant deserved what he got.

     Trial counsel’s misconduct was not “slight or confined to a

single instance, but . . . pronounced and persistent, with a

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United States v. Hornback, No. 13-0442/MC


probably cumulative effect upon the jury which cannot be

regarded as inconsequential.”   Fletcher, 62 M.J. at 185

(alteration in original) (citation and internal quotation marks

omitted).   Trial counsel did commit prosecutorial misconduct and

the scope and pervasiveness of that misconduct was sufficient to

interfere with Appellant’s substantial right to a fair trial.

Although the prejudice is clearest with respect to the spice

charge, in light of the pervasive nature of the misconduct, I

would set aside the changes and authorize a rehearing on all

charges.    Therefore, I respectfully dissent.




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United States v. Hornback, No. 13-0442/MC


     OHLSON, Judge, with whom BAKER, Chief Judge, joins

(dissenting):

     I concur with the majority’s observation that the trial

counsel “repeatedly and persistently elicited improper

testimony, despite repeated sustained objections as well as

admonition and instruction from the military judge.”     I also

concur with the majority’s determination that the trial

counsel’s actions constituted prosecutorial misconduct.    Where I

differ is on the question of whether the trial counsel’s

“significant,” “repeated,” “pervasive,” “sustained,”

“persistent,” and “severe” misconduct materially prejudiced

Appellant’s right to a fair trial.   I believe it did.

     I readily acknowledge that the military judge in this case

repeatedly gave curative instructions to the panel in most of

the many instances where the trial counsel engaged in

prosecutorial misconduct, and that he also appropriately

provided the panel with a comprehensive instruction at the end

of the court-martial explaining to the members that they could

not consider evidence that was the subject of sustained

objections.   Further, I concede that “[a]bsent evidence to the

contrary, court members are presumed to comply with the military

judge’s instructions.”   United States v. Thompkins, 58 M.J. 43,

47 (C.A.A.F. 2003).   However, I also note that, consistent with

this Court’s precedent, “[P]rosecutorial misconduct by a trial
United States v. Hornback, No. 13-0442/MC


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

evidence alone.”    United States v. Fletcher, 62 M.J. 175, 184

(C.A.A.F. 2005) (emphasis added).      In my view, such is the case

here.

        As documented by the majority, during this court-martial

trial counsel engaged in prosecutorial misconduct virtually from

start to finish.    In her opening statement, case-in-chief,

closing argument, and sentencing argument, trial counsel either

injected improper character evidence (which is of particularly

grave concern), elicited improper hearsay evidence, or made

improper arguments.    (For example, trial counsel opined to the

panel members:    “The accused is like a criminal infection that

is a plague to the Marine Corps.”)     Indeed, even by the

Government’s own accounting, trial counsel’s actions prompted

the military judge to sustain defense counsel’s objections

fifteen times, give the panel members curative instructions

seven times, and convene Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2012), sessions to discuss objectionable material four times.1

1
  The nagging –– if unspoken –– question in this case is, “Where
was the chief of justice?” As noted by the majority, trial
counsel appeared to be not only “inexperienced” but also
“unsupervised,” and she “repeatedly appeared unable to either
understand or abide by the military judge’s rulings and
instructions.” The issue of why this trial counsel did not


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United States v. Hornback, No. 13-0442/MC


      The military judge’s admonishments to trial counsel during

the course of this court-martial are also quite telling.      For

example:

     MJ:   “I’m tired of having the members being exposed to

      basically character evidence that’s not admissible.”

     MJ:   “My concern here is that you are getting into all

      these potential bad acts that aren’t specific to the

      charged offenses, which would blow this case up.”

     MJ:   “I am concerned that the jury’s been tainted by

      hearing evidence that [the Accused] was taking

      schizophrenia medication.”

     MJ: “What you can’t do is get into a bunch of evidence that

      the accused is a druggy and, therefore, he probably used

      some drug at some point.”

      The attentiveness of the military judge to trial counsel’s

repeated prosecutorial misconduct was admirable, and his

admonishments and attempted remedial measures were appropriate.

Ultimately, however, they were not sufficient.   I echo the

sentiments of the United States Court of Appeals for the


receive the level of supervision, guidance, assistance,
instruction, and training that she so obviously needed is not a
matter before this Court. However, I find it appropriate to
note that the responsibility to protect a servicemember’s
constitutional right to a fair trial does not rest solely with
the lone trial counsel advocating in the courtroom; it extends
to the chief of justice and to other supervisory officers as
well.


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United States v. Hornback, No. 13-0442/MC


Eleventh Circuit in United States v. Crutchfield:   “When

improper inquiries and innuendos permeate a trial to such a

degree as occurred in this case, [I] do not believe that

instructions from the bench are sufficient to offset the

prejudicial effect suffered by the accused.”   26 F.3d 1098, 1103

(11th Cir. 1994).

     On this record I “cannot be confident that the members

convicted the appellant on the basis of the evidence alone.”

Fletcher, 62 M.J. at 184.   Therefore, I respectfully dissent and

would authorize a rehearing on all charges.




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