                       UNITED STATES, Appellee

                                    v.

             Paul H. SCHRODER, Chief Master Sergeant
                    U.S. Air Force, Appellant

                              No. 06-0657

                         Crim. App. No. 35855

       United States Court of Appeals for the Armed Forces

                       Argued February 6, 2007

                         Decided May 31, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.


                                 Counsel

For Appellant: Mary T. Hall, Esq. (argued); Major John N. Page
III (on brief); Major Sandra K. Whittington.


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

Military Judge:   Kevin P. Koehler


       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Schroder, No. 06-0657/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a general court-martial composed of

officer and enlisted members.   Contrary to his pleas, he was

convicted of one specification of rape of a child under sixteen

and one specification of indecent acts1 in violation of Articles

120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.

§§ 920, 934 (2000).   The adjudged sentence included a

dishonorable discharge, confinement for ten years, forfeiture of

all pay and allowances, and reduction to E-4.   The convening

authority approved the sentence as adjudged.    The United States

Air Force Court of Criminal Appeals affirmed.   United States v.

Schroder, No. ACM 35855 (A.F. Ct. Crim. App. Mar. 31, 2006).

     On Appellant’s petition, we granted review of the following

issues:

     WHETHER THE MILITARY JUDGE ERRED IN ADMITTING
     EVIDENCE OF ALLEGED SEXUAL MOLESTATION ACTS BY
     APPELLANT INVOLVING [SC] AND [JR] AND FAILED TO
     ADEQUATELY INSTRUCT THE PANEL ON HOW TO USE SUCH
     EVIDENCE.

     WHETHER THE TRIAL COUNSEL IMPROPERLY ENGAGED IN
     INFLAMMATORY, IRRELEVANT, AND PREJUDICIAL
     COMMENTS DURING ARGUMENT BY URGING THE MEMBERS
     DURING THE MERITS AND SENTENCING TO RENDER
     JUSTICE NOT ONLY FOR THE ALLEGED VICTIMS OF THE
     CHARGED OFFENSES BUT FOR AN ALLEGED VICTIM OF
     UNCHARGED MISCONDUCT AS WELL.


1
  Appellant was charged with indecent acts with a child under
sixteen, Manual for Courts-Martial, United States pt. IV, para.
87 (2002 ed.) (MCM), but convicted of the lesser offense of
“indecent acts with another.” MCM pt. IV, para. 90.

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United States v. Schroder, No. 06-0657/AF


     Finding no error prejudicial to the substantial rights of

Appellant, we affirm.

                           Background

     Appellant was accused of raping his then twelve-year-old

daughter, JPR, in 1987, and of committing indecent acts with his

twelve-year-old neighbor, SRS, in 2001.    The indecent acts with

SRS, which were alleged in a single specification, included

“having her sit on his lap, placing his hand upon her leg,

placing his hand upon her buttocks, placing his hand upon her

groin area, kissing her on the neck, and grabbing her buttocks

and pulling her toward his groin.”

     Before trial, the Government moved to admit evidence of

other acts of child molestation pursuant to Military Rule of

Evidence (M.R.E.) 414 and M.R.E. 404(b).    This evidence included

testimony by Appellant’s stepdaughter, SJS, that Appellant had

molested her in 1981 when she was nine years old.   The evidence

also included testimony by JPR that Appellant had committed

other acts of molestation and sodomy with her in 1987.

     The military judge ruled that the uncharged acts of

molestation with SJS and JPR were admissible under M.R.E. 414 to

prove that Appellant had raped JPR.   He further determined that

the uncharged acts with SJS and JPR, as well as the charged rape

of JPR, were admissible under M.R.E. 414 in order to prove that

Appellant had committed indecent acts with SRS.


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United States v. Schroder, No. 06-0657/AF


                Issue I -- The M.R.E. 414 Evidence

     M.R.E. 414(a) provides that “[i]n a court-martial in which

the accused is charged with an offense of child molestation,

evidence of the accused’s commission of one or more offenses of

child molestation is admissible and may be considered for its

bearing on any matter to which it is relevant.”

     Before admitting evidence of other acts of child

molestation under M.R.E. 414, the military judge must make three

threshold findings:   (1) that the accused is charged with an act

of child molestation as defined by M.R.E. 414(a); (2) that the

proffered evidence is evidence of his commission of another

offense of child molestation; and (3) that the evidence is

relevant under M.R.E. 401 and M.R.E. 402.      United States v.

Wright, 53 M.J. 476, 482 (C.A.A.F. 2000) (requiring threshold

findings before admitting evidence under M.R.E. 413); United

States v. Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001) (“[a]s

Rules 413 and 414 are essentially the same in substance, the

analysis for proper admission of evidence under either should be

the same”).   The military judge must also conduct a M.R.E. 403

balancing analysis, applying among other factors those

identified in Wright, including:       “[s]trength of proof of prior

act -- conviction versus gossip; probative weight of evidence;

potential for less prejudicial evidence; distraction of

factfinder; and time needed for proof of prior conduct. . . .


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United States v. Schroder, No. 06-0657/AF


temporal proximity; frequency of the acts; presence or lack of

intervening circumstances; and relationship between the

parties.”    53 M.J. at 482 (citations omitted).

     Before this Court, Appellant argues that of the five acts

charged under the specification, two of the acts -- “placing his

hand upon her leg” and “kissing her on the neck” -- did not

satisfy M.R.E. 414’s definition of an “offense of child

molestation.”    In particular, they did not fall within the

Rule’s definition of “sexual act” or “sexual contact.”      As a

result, the military judge erred when he admitted the uncharged

acts with SJS and JPR to prove the single specification of

indecent acts with SRS, without further qualification.

     M.R.E. 414(d)-(g) defines an “offense of child molestation”

in detail:

          (d) For purposes of this rule . . .
     ‘offense of child molestation’ means an offense
     punishable under the Uniform Code of Military
     Justice, or a crime under Federal law or the law
     of a State that involved --

                  (1) any sexual act or sexual contact
             with a child proscribed by the Uniform Code
             of Military Justice, Federal law, or the law
             of a State;

                  (2) any sexually explicit conduct with
             children proscribed by the Uniform Code of
             Military Justice, Federal law, or the law of
             a State;

                  (3) contact between any part of the
             accused’s body, or an object controlled or



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United States v. Schroder, No. 06-0657/AF


          held by the accused, and the genitals or
          anus of a child;

               (4) contact between the genitals or
          anus of the accused and any part of the body
          of a child;

               (5) deriving sexual pleasure or
          gratification from the infliction of death,
          bodily injury or physical pain on a child;
          or

               (6) an attempt or conspiracy to engage
          in conduct described in paragraphs (1)
          through (5) of this subdivision.

          (e) For purposes of this rule, the term
     ‘sexual act’ means:

               (1) contact between the penis and the
          vulva or the penis and the anus, and for
          purposes of this rule, contact occurs upon
          penetration, however slight, of the penis
          into the vulva or anus;

               (2) contact between the mouth and the
          penis, the mouth and the vulva, or the mouth
          and the anus;

               (3) the penetration, however slight,
          of the anal or genital opening of another by
          a hand or finger or by any object, with an
          intent to abuse, humiliate, harass, degrade,
          or arouse, or gratify the sexual desire of
          any person; or

               (4) the intentional touching, not
          through the clothing, of the genitalia of
          another person who has not attained the age
          of 16 years, with an intent to abuse,
          humiliate, harass, degrade, or arouse or
          gratify the sexual desire of any person.

          (f) For purposes of this rule, the term
     “sexual contact” means the intentional touching,
     either directly or through clothing, of the
     genitalia, anus, groin, breast, inner thigh, or


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United States v. Schroder, No. 06-0657/AF


     buttocks of any person with an intent to abuse,
     humiliate, harass, degrade, or arouse or gratify
     the sexual desire of any person.

          (g) For purposes of this rule, the term
     “sexually explicit conduct” means actual or
     simulated:

               (1) sexual intercourse, including
          genital-genital, oral-genital, anal-genital,
          or oral-anal, whether between person of the
          same or opposite sex;

               (2)   bestiality;

               (3)   masturbation;

               (4)   sadistic or masochistic abuse; or

               (5) lascivious exhibition of the
          genitals or pubic area of any person.

     This definition provides an exclusive list of offenses that

qualify as “offense[s] of child molestation.”   Thus, it does not

give the military judge the discretion to admit uncharged

misconduct in every case in which the accused has allegedly

committed indecent acts or indecent liberties with a child as

those offenses are defined by MCM pt. IV, para. 87.      The charged

acts must fall within the specific definition of an “offense of

child molestation” set out in M.R.E. 414.

     Appellant is correct that the acts of “placing his hand

upon [SRS’s] leg” and “kissing her on the neck,” are not within

the Rule’s definitions for “sexual act” or “sexual contact.”     In

contrast, the intentional touching of the “inner thigh” with

intent to gratify the sexual desires is included as an act of


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United States v. Schroder, No. 06-0657/AF


“sexual contact” under M.R.E. 414(f), which in turn is included

in the definition of “offense of child molestation” in M.R.E.

414(d)(1).    Neither the record nor the specification indicates

that Appellant touched SRS’s inner thigh.    Further, there is

nothing in M.R.E. 414’s definition of “offense of child

molestation” similar to the alleged act of kissing SRS on the

neck.    As a result, had these acts been charged in separate

specifications, other acts of child molestation would not be

admissible under M.R.E. 414 to prove that they occurred.

        However, in this case, these acts were charged in a single

specification that included factual allegations that fit the

M.R.E. 414(f) definition of “sexual contact,” including “placing

his hand upon [SRS]’s buttocks, placing his hand upon her groin

area . . . and grabbing her buttocks.”    Consequently, the

specification alleged “an offense of child molestation.”

        Having determined that the indecent acts charge alleged an

offense of child molestation under M.R.E. 414, we consider

whether the military judge abused his discretion in admitting

other acts evidence under M.R.E. 414 to prove the charged

offenses.    Wright, 53 M.J. at 483.   The military judge made the

required threshold findings and conducted a lengthy on-record

M.R.E. 403 balancing analysis.    As the military judge correctly

noted, there was direct evidence in the form of eyewitness

testimony by JPR and SJS that Appellant had committed the other


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United States v. Schroder, No. 06-0657/AF


acts of child molestation, there were no significant intervening

circumstances between the charged and uncharged acts, and with

all three girls, Appellant had abused his position as a “father

figure” to take advantage of each of the victims.2   Thus, as a

threshold matter, we conclude that the military judge did not

err in admitting evidence of uncharged misconduct with SJS and

JPR.   We next address Appellant’s argument that the military

judge nonetheless erred in instructing the members on the use of

this evidence.

       “The question of whether a jury was properly instructed

[is] a question of law, and thus, our review is de novo.”

United States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996)

(citing United States v. Snow, 82 F.3d 935, 938-39 (10th Cir.

1996)).3


2
  Appellant also takes issue with the military judge’s
application of the Huddleston v. United States, 485 U.S. 681,
690 (1988) standard, pointing out that the military judge stated
only that he found that “members could reasonably find” and not
that “the jury could reasonably find . . . by a preponderance of
the evidence” that the other acts had occurred. However, as the
recitation of part of the standard made clear, the military
judge was aware of his duty to act as a gatekeeper, and the
omission of the “preponderance of the evidence” part of the
standard is not in and of itself sufficient to rebut the
presumption that the military judge knew and applied the law
correctly. See United States v. Raya, 45 M.J. 251, 253
(C.A.A.F. 1996). With eyewitness testimony regarding each of
the alleged acts, the military judge did not abuse his
discretion in this regard.
3
  The defense requested an instruction limiting the members’ use
of uncharged misconduct evidence to the purposes permitted by

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United States v. Schroder, No. 06-0657/AF

     The military judge gave the following instruction on the

use of uncharged misconduct evidence:

          Each offense must stand on its own and you must
     keep the evidence of each offense separate. The
     burden is on the prosecution to prove each and every
     element of each offense beyond a reasonable doubt. As
     a general rule, proof of one offense carries with it
     no inference that the accused is guilty of another
     offense. However, you may consider the similarities
     in the testimony of [SJS] and [JPR] concerning any
     alleged offensive touching with regard to the charged
     offense of rape. And you may consider the
     similarities in the testimony of [SRS], [SJS], and
     [JPR] concerning any alleged offensive touching with
     regard to the offense of indecent acts with a child.

This was the extent of the military judge’s instructions

regarding the use of SJS’s and JPR’s testimony admitted under

M.R.E. 414.

     Two instructional questions are presented.   First, was the

military judge required to disaggregate the instruction with

respect to the three acts within the charge that qualified as

molestation and the two acts that did not?   Second, and in any

event, did the military judge err in his instruction as to how

the members could consider the M.R.E. 414 evidence?


M.R.E. 404(b). The defense request also included an instruction
that “[y]ou may not conclude the accused is a bad person and has
criminal tendencies and therefore convict him on that basis
alone.” We apply the abuse of discretion standard to a military
judge’s decision on whether to give a tailored instruction
requested by the defense. United States v. Damatta-Olivera, 37
M.J. 474, 478 (C.M.A. 1993). However, since the issue presented
concerns the accuracy of the statement of law contained in the
instructions given, and not solely the failure to give a
requested tailored instruction, we apply the de novo standard of
review.

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United States v. Schroder, No. 06-0657/AF

     The first question is addressed through reference to the

Rule itself.    M.R.E. 414(a) provides that evidence of other acts

of child molestation is admissible “[i]n a court martial in

which the accused is charged with an offense of child

molestation.”   The Rule does not limit the use of that evidence

to qualifying acts within a specification, but rather to prove

the specification itself.   Congress could have expressly limited

the Rule’s application to specific acts, but it did not do so.

This conclusion is consistent with the legal policy that informs

M.R.E. 403.    If the military judge were to disaggregate the

instructions, as Appellant urges, providing a separate

instruction for each act alleged in a single specification,

there is potential for increased confusion among members.    Such

a rule might also encourage the government to charge multiple

offenses in separate specifications in order to avoid such

confusion and streamline the presentation of evidence, even

where the interests of justice are better served by charging

multiple acts in a single specification.    Thus, the military

judge was not required to give an instruction distinguishing

between the acts that met the definition of “offense of child

molestation” in M.R.E. 414 and those that did not.

     Appellant next argues that the military judge erred by not

instructing the jury that “[e]vidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in


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United States v. Schroder, No. 06-0657/AF

order to show action in conformity therewith” in accordance with

Appellant’s request.   M.R.E. 414, like its counterpart Fed. R.

Evid. 414, was “intended to provide for more liberal

admissibility of character evidence in criminal cases of child

molestation where the accused has committed a prior act of

sexual assault or child molestation.”   MCM, Analysis of the

Military Rules of Evidence app. 22 at A22-37.   At the same time,

there is an inherent tension between the Rule and traditional

concerns regarding convictions based on “bad character”

evidence.   Such evidence has long been regarded as having the

tendency to relieve the government of its constitutional burden

to prove every element of the charged offense beyond a

reasonable doubt.   Thus, the Judicial Conference of the United

States noted in response to the proposed federal rules:

     [T]he new rules, which are not supported by empirical
     evidence, could diminish significantly the protections
     that have safeguarded persons accused in criminal
     cases and parties in civil cases against undue
     prejudice. These protections form a fundamental part
     of American jurisprudence and have evolved under long-
     standing rules and case law. A significant concern
     identified by the committee was the danger of
     convicting a criminal defendant for past, as opposed
     to charged, behavior or for being a bad person.

Judicial Conference of the United States, Report of the Judicial

Conference on the Admission of Character Evidence in Certain

Sexual Misconduct Cases, 159 F.R.D. 51, 52 (1995).




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United States v. Schroder, No. 06-0657/AF

     As recognized in Wright, procedural safeguards are required

to protect the accused from unconstitutional application of

M.R.E. 413 and M.R.E. 414.   These safeguards include the

requirement that the military judge make “threshold findings”

that the evidence is relevant under M.R.E. 401 and M.R.E. 402;

the military judge’s application of M.R.E. 403; the military

judge’s preliminary application of the Huddleston standard; and

the requirement that the government give prior notice of its

intent to use M.R.E. 413(b) or M.R.E. 414 evidence.   Wright, 53

M.J. at 483.   The safeguards also include the requirement of

proper instructions.

     In this case, the military judge’s instructions fell short.

The military judge correctly instructed the members that “[t]he

burden is on the prosecution to prove each and every element of

each offense beyond a reasonable doubt.   As a general rule,

proof of one offense carries with it no inference that the

accused is guilty of another offense.”    Nonetheless, the

military judge qualified this statement by informing the members

that they may “[h]owever . . . consider the similarities in the

testimony” of the three alleged victims concerning the alleged

rape and indecent acts.   On its own, the instruction was

susceptible to unconstitutional interpretation:   that the

members were permitted to conclude that the presence of

“similarities” between the charged and uncharged misconduct


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United States v. Schroder, No. 06-0657/AF

were, standing alone, sufficient evidence to convict Appellant

of the charged offenses.

     The Military Judges Benchbook suggests that where an

instruction on propensity evidence is given, the members should

also be instructed that:

     You may not, however, convict the accused of one
     offense merely because you believe (he)(she) committed
     (this)(these) other offense(s) or merely because you
     believe (he)(she) has a propensity to commit (sexual
     assault)(child molestation). Each offense must stand
     on its own and proof of one offense carries no
     inference that the accused is guilty of any other
     offense. In other words, proof of one (sexual
     assault)(act of child molestation) creates no
     inference that the accused is guilty of any other
     (sexual assault)(act of child molestation). However,
     it may demonstrate that the accused has a propensity
     to commit that type of offense. The prosecution’s
     burden of proof to establish the accused’s guilt
     beyond a reasonable doubt remains as to each and every
     element of each offense charged.

Dep’t of the Army, Pamphlet 27-9, Legal Services, Military

Judges Benchbook ch. 7, para. 7-13-1 (2002).4

     The United States Court of Appeals for the Tenth Circuit,

quoting the district court’s instruction to the jury, approved a

4
  We note too the United States Army Court of Criminal Appeals’
recent decision that held that in cases where the military judge
instructs that “propensity” is a proper use of M.R.E. 413
evidence, the military judge is also required to give the
Benchbook instruction or other similar instruction that the
members “may not convict the accused solely because they may
believe the accused committed other sexual assault offenses or
has a propensity or predisposition to commit sexual assault
offenses” and “may not use Rule 413 evidence as substitute
evidence to support findings of guilty or to overcome a failure
of proof in the government’s case, if any.” United States v.
Dacosta, 63 M.J. 575, 583 (A. Ct. Crim. App. 2006).

                               14
United States v. Schroder, No. 06-0657/AF

different formulation in United States v. McHorse, 179 F.3d 889,

903 (10th Cir. 1999):

     In a criminal case in which the defendant is accused
     of . . . an offense of child molestation, evidence of
     the defendant’s commission of another offense or
     offenses of child molestation is admissible and may be
     considered for its bearing on any matter to which it
     is relevant. However, evidence of a prior offense on
     its own is not sufficient to prove the defendant
     guilty of the crimes charged in the indictment. Bear
     in mind as you consider this evidence at all times the
     government has the burden of proving that the
     defendant committed each of the elements of the
     offense charged in the indictment. I remind you that
     the defendant is not on trial for any act, conduct, or
     offense not charged in the indictment.

     Although the law does not mandate a formulaic instruction,

it is essential that where, as here, the members are instructed

that M.R.E. 414 evidence may be considered for its bearing on an

accused’s propensity to commit the charged crime, the members

must also be instructed that the introduction of such propensity

evidence does not relieve the government of its burden of

proving every element of every offense charged.   Moreover, the

factfinder may not convict on the basis of propensity evidence

alone.

     The Government argues that the military judge did not err

because he modeled his instruction on the instruction quoted in

Dewrell, 55 M.J. at 138.   Dewrell was charged with raping a

young girl, but was acquitted of rape and found guilty of

indecent acts with a different girl.   Id. at 132.   In our



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United States v. Schroder, No. 06-0657/AF

analysis addressing the admissibility of M.R.E. 413 and M.R.E.

414 evidence, we noted that the military judge gave an

instruction stating that “you may consider any similarities in

the testimony of Ms. [P, A,] and Specialist [C] concerning

masturbation with regard to the Specification of Charge II

[rape].”   Id.   However, the sufficiency of this instruction was

not at issue, and it is not clear whether any prejudice could

have resulted because Dewrell was acquitted of the offense on

which the members were instructed to “consider [the]

similarities.”   Id.    As a result, this Court cited, but did not

analyze or validate the instruction, and the Government’s

reliance on Dewrell is misplaced.

                               Prejudice

     Having found error in the instructions, we must determine

whether the error resulted in material prejudice to a

substantial right of the accused.      “Because there are

constitutional dimensions at play, [Appellant’s] claims must be

tested for prejudice under the standard of harmless beyond a

reasonable doubt.”     United States v. Wolford, 62 M.J. 418, 420

(C.A.A.F. 2006).

     The members acquitted Appellant of indecent acts with a

child.   MCM pt. IV, para. 87.b. defines indecent acts with a

child as having the following elements:     (a) the accused

committed a certain act upon or with the body of a person; (b)


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United States v. Schroder, No. 06-0657/AF

that the person was under sixteen years of age and not the

spouse of the accused; (c) that the act of the accused was

indecent; (d) that the accused committed the act with intent to

arouse, appeal to or gratify the lust, passions, or sexual

desires of the accused, the victim, or both; and (e) such

conduct was prejudicial to good order and discipline and/or

service discrediting.   In contrast, MCM pt. IV, para. 90.b.

defines the offense of indecent acts with another as having the

following elements:   (a) the accused committed a certain

wrongful act with a certain person; (b) that the act was

indecent; and (c) that it was conduct prejudicial to good order

and/or service discrediting.   The military judge accordingly

instructed the members on the offense of indecent acts with

another as a lesser included offense of indecent acts with a

child.   Appellant contested this charge on the ground that he

did not intend sexual gratification with SRS, not on the theory

that he did not know or mistook her age.    The finding of guilty

only of the lesser included offense of indecent acts with

another, which lacks the element of specific intent which

Appellant disputed at trial, suggests that the members were not

swayed to convict on this count by the instructional error

regarding the use of propensity evidence.   Based on the members’

finding of guilty only on the lesser included offense of

indecent acts, the totality of the instructions provided by the


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United States v. Schroder, No. 06-0657/AF

military judge, and the detailed and credible nature of SRS’s

testimony, we are convinced beyond reasonable doubt that the

error did not contribute to Appellant’s conviction.   United

States v. Kreutzer, 61 M.J. 293, 298 (C.A.A.F. 2005).

     With respect to the rape of JPR, as discussed above, the

military judge properly admitted the testimony by SJS that

Appellant had committed other offenses of child molestation

about six years earlier.   In addition to the eyewitness

testimony regarding charged and uncharged misconduct, the

Government’s evidence included several statements by Appellant

to various law enforcement agencies.   Appellant’s statements

included an admission that he had “patted the side of [JPR’s]

breasts,” and corroborated details of JPR’s testimony regarding

the day the rape occurred.   Given the strength of the

Government’s case, we are also convinced that this finding was

not swayed by the incorrect instruction.

                   Issue II -- Improper Argument

     Trial counsel began his closing argument on the merits

stating:

           Stolen Innocence, Justice Past Due.

          We indicated that to you at the beginning of this
     trial, and the evidence certainly has played out
     exactly as we indicated to you.

          This case details events lasting 20 years, three
     different girls, one common ground, that this man who



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United States v. Schroder, No. 06-0657/AF

     sits in this courtroom today raped, molested,
     committed indecent acts with each of them.

After asking the members to set aside disbelief that an accused

who “wears the same uniform and has for some time” could commit

“unspeakable things,” trial counsel asked the members to “put

that aside and evaluate the facts fairly.   We owe that much to

those three young girls.”    Trial counsel returned to his theme

again near the end of the argument, stating “[t]his is somebody

we should be able to trust, but it happened and it happened

again and again and again.   20 years.   Three girls.   One common

theme.”   Throughout his argument, trial counsel displayed a

slide show.   The first and last slides contained a photograph of

the three alleged victims.   In the photographs, JPR and SJS were

pictured as young girls.    The slide also contained the heading

“STOLEN INNOCENCE, JUSTICE PAST DUE.”    At the end of his

rebuttal argument on findings, trial counsel again made

reference to the slide, stating “Don’t forget about the victims.

Don’t forget about [SJS], [JPR], and [SRS as] they appear on

that picture.   The pictures are silent, but their silence

screams for justice.”

     In closing arguments on sentencing, assistant trial counsel

again displayed the slide depicting the three girls with the

same heading “STOLEN INNOCENCE, JUSTICE PAST DUE.”      Assistant

trial counsel referred to the uncharged acts with SJS indirectly



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United States v. Schroder, No. 06-0657/AF

by stating that Appellant “used his position as a father,

stepfather, and a father figure to abuse young girls”; and by

again showing the slide of the three girls and stating:     “Look

at those girls.   That is why we are here today.    They deserve

justice.   They have been waiting for years for justice.    They

scream for justice.   Members, make sure your sentence delivers

justice to those girls . . . .”

     Defense counsel did not object to this line of argument or

to the slides.    As a consequence, we review the argument of

trial counsel for plain error.    Rule for Courts-Martial (R.C.M.)

919(c); United States v. Haney, 64 M.J. 101, 105 (C.A.A.F.

2006).

     As this Court has often stated, “the trial counsel is at

liberty to strike hard, but not foul, blows.”     United States v.

Baer, 53 M.J. 235, 237 (C.A.A.F. 2000).     To that end, the R.C.M.

and our case law provide that it is error for trial counsel to

make arguments that “unduly . . . inflame the passions or

prejudices of the court members.”      United States v. Clifton, 15

M.J. 26, 30 (C.M.A. 1983); R.C.M. 919(b) Discussion.     An accused

is supposed to be tried and sentenced as an individual on the

basis of the offense(s) charged and the legally and logically

relevant evidence presented.   Thus, trial counsel is also

prohibited from injecting into argument irrelevant matters, such

as personal opinions and facts not in evidence.     United States


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v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005); R.C.M. 919(b)

Discussion.

     Appellant argues that trial counsels’ argument constituted

plain error because it exhorted the members to “administer

justice for the purported victim of uncharged misconduct as well

as for the victims of the charged offenses.”   In response, the

Government argues that trial counsels’ argument did not

constitute an inappropriate reference to the victim of uncharged

misconduct, or if it did, any error was harmless.

     On the one hand, M.R.E. 414(a) provides that evidence of

uncharged misconduct may be considered for “any matter to which

it is relevant.”   On the other hand, as noted above, there is a

risk with propensity evidence that an accused may be convicted

and sentenced based on uncharged conduct and not the acts for

which he is on trial.   As a result, where M.R.E. 414 evidence is

admitted there is a need for procedural safeguards to delimit

the use of such evidence.   One such safeguard is to ensure that

trial counsel does not use such evidence to unduly inflame the

members.   The M.R.E. 414 safeguards could be undermined if trial

counsel’s comments were permitted to range outside the realm of

legally “relevant matters” and express a sense of outrage and

injustice regarding the victims of uncharged misconduct.

     In the present case, trial counsels’ appeal to render

justice for SJS, as reflected in their arguments and the


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United States v. Schroder, No. 06-0657/AF

parallel use of her photograph with those of JPR and SRS, was

error.   Trial counsels’ presentation invited members to convict

and punish Appellant for his uncharged misconduct, as opposed to

using that misconduct to inform their judgments regarding the

charged conduct.   The error was also plain and obvious.

Appellant was not charged with offenses against SJS.   Thus, as a

matter of law, not morality, the court was not convened to

render justice to SJS.

     However, Appellant has not met his burden of establishing

plain error.   United States v. Hardison, 64 M.J. 279, 281

(C.A.A.F. 2007).   Improper argument does not require reversal

unless “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.”   Fletcher, 62

M.J. at 184.   In both closing and sentencing argument, trial

counsels’ inappropriate allusions to SJS were limited to the

passages quoted above.   Trial counsel otherwise stayed within

the range of appropriate comment throughout a lengthy findings

argument and rebuttal, covering forty and sixteen pages in the

record of trial, respectively, and a sentencing argument that

covered twelve pages in the record of trial.   Moreover, the

Government’s case was strong.   Among other things, the evidence

regarding SJS was already graphically and appropriately before

the members.   These factors suggest that it was the evidence and


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United States v. Schroder, No. 06-0657/AF

not trial counsel’s isolated comments that caused the members to

return a guilty verdict.

     On sentencing, the Government asked for twenty-to-twenty-

five years of confinement in a case where Appellant was exposed

to a life sentence.   The members adjudicated a sentence of ten

years of confinement and a dishonorable discharge in a case

where the accused was convicted of raping his daughter and

committing indecent acts with another young girl.   This suggests

that the members were not inflamed by trial counsel’s argument

and instead reached an independent judgment on sentencing.

     Based on these factors we are confident that the improper

portion of trial counsel’s argument did not sway the findings or

the sentence.

                             Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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