UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            JOHNSON, BERG, and KRAUSS
                               Appellate Military Judges

                           UNITED STATES, Appellee
                                         v.
                    Private First Class DAVID V. PETERSON
                         United States Army, Appellant

                                  ARMY 20100851

      Headquarters, 1st Armored Division and United States Division – Center
                         Michael J. Hargis, Military Judge
             Lieutenant Colonel Ian G. Corey, Staff Judge Advocate


For Appellant: Colonel Mark Tellitocci, JA; Lieutenant Colonel Imogene M.
Jamison, JA; Major Laura R. Kesler, JA; Captain A. Jason Nef, JA (on brief).

For Appellee: Major Amber J. Williams, JA; Major Ellen S. Jennings, JA; Captain
Bradley M. Endicott, JA (on brief).

                                  9 December 2011
                              ---------------------------------
                              MEMORANDUM OPINION
                              ---------------------------------
BERG, Judge:

       A military judge, sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of violating a lawful general order and wrongfully possessing
three or more images of child pornography, in violation of Articles 92 and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 (2008) [hereinafter
UCMJ]. A panel composed of officers and enlisted members sentenced appellant to
be reduced to the grade of Private E1, confinement for twenty months, total
forfeiture of all pay and allowances, and a dishonorable discharge. A pretrial
agreement between the convening authority and appellant limited confinement to
twelve months. The convening authority approved only so much of the adjudged
sentence as extended to reduction to the grade of Private E1, twelve months’
confinement, total forfeiture of all pay and allowances, and a dishonorable
discharge.
PETERSON – ARMY 20100851


      This case is before this court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error 1 which merits discussion. We accord a
measure of relief in our decretal paragraph.

                                  BACKGROUND

       A civilian investigation in Liberty County, Georgia, identified appellant as a
suspect in the distribution of child pornography via a peer-to-peer file sharing
network in late 2009. Upon learning that appellant had deployed from Fort Stewart,
Georgia, to Iraq, local authorities conveyed the results of their investigation to Army
Criminal Investigation Division (CID) agents. Armed with a military magistrate’s
search authorization, CID agents seized appellant’s laptop computer from his
containerized housing unit (CHU) at Camp Liberty, Baghdad, Iraq, and submitted its
hard drive for a forensic investigation. The forensic analysis disclosed, inter alia,
the presence of the four adult pornographic movies and three movies displaying
child pornography which are the subject of this case. Appellant subsequently
admitted to CID agents, after being duly warned of his rights under Article 31(b),
UCMJ, that he had downloaded the images while at Fort Stewart and transported
them with him on the hard drive of his laptop computer to Iraq. Appellant also told
the CID agents that he had been viewing child pornography since 2004 and
possessed it for his sexual gratification.

       Appellant pleaded guilty to the Specification of Charge I, acknowledging that
his possession of the adult pornography violated the provisions of United States
Forces – Iraq General Order Number 1. He pleaded guilty to the Specification of
Charge II, conceding that his possession of the child pornography was to the
prejudice of good order and discipline in the armed forces and was of a nature to
bring discredit upon the armed forces. These facts, along with a thumb drive
containing copies of each of the relevant adult and child pornography videos, were
incorporated into appellant’s stipulation of fact, considered by the military judge in
determining the providency of appellant’s guilty pleas, and provided to the panel
charged with determining appellant’s sentence. In an unsworn statement, appellant
told the panel of his remorse and shame, his need to be punished for his misconduct,
his failure to contemplate the harm that had been done to the victims of the child
pornography, and his desire to be retained in the Army. 2 Our review of the record of



1
 WHETHER IT WAS PLAIN ERROR WHEN TRIAL COUNSEL INFLAMED THE
PASSIONS OF THE PANEL BY IMPLYING THAT CHILDREN ON ARMY
INSTALLATIONS EVERYWHERE ARE IN DANGER OF BEING SEXUALLY
ABUSED BY APPELLANT AND ARGUING THAT APPELLANT SHOULD BE
PUNISHED FOR ACTUALLY HARMING CHILDREN.
2
  Appellant also called five noncommissioned officer witnesses from his unit, each
of whom expressed a willingness to continue serving with appellant and suggested
that he still had a future in the Army.
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PETERSON – ARMY 20100851


trial reveals no significant legal issues until the government made its closing
argument on sentencing to the panel.


                          Trial Counsel’s Closing Argument

      Trial counsel reached the crescendo of her summation with the following:

             A message needs to be sent to him that our society does
             not support the child pornography industry, the abuse of
             children, the advantage that has been taken of these
             children over and over again, and the accused most
             definitely does not deserve to stay in this Army, an Army
             where people value each other, value their families, as
             children run across Army posts everywhere, places where
             the accused lived. He lives a short walk from MWR, the
             swimming pool, elementary schools, playgrounds. He
             don’t [sic] see a young child running and think how cute
             they are, they must be having so much fun, instead, he
             thinks of them as a sexual object. That is not the Soldier
             to have on our post. That is not the Soldier that we want
             around our families as part of the Army family. This
             Soldier needs to be sentenced to reduction to E1, twenty
             months confinement, and a dishonorable discharge.

        Defense counsel did not object to this argument or seek a corrective
instruction from the military judge but chose to wait and respond in his closing,
pointing out there was no evidence that appellant viewed all children “as sexual
objects.” Defense counsel minimized the number of child videos (“three videos of
child porn”), together with their relatively short duration, and asked that appellant,
above all, be retained in the service. The military judge did not instruct the panel
that counsels’ arguments were not evidence but did remark that trial counsel’s pleas
for a specific sentence were “only her individual suggestions and may not be
considered as the recommendation or opinion of anyone other than that individual
counsel.” No complaint was lodged against trial counsel’s argument until appellant
first asserted it as legal error in his post-trial Rules for Courts-Martial (R.C.M.)
1105 matters and now as plain error on appeal. Appellant now asks us to set aside
his sentence and remand for a new sentencing hearing. The government submits that
the trial counsel’s comments, if error, did not affect a material right of appellant.

                                    DISCUSSION

        The Requirement that Prosecutorial Zeal be Tempered by Discipline

      Justice Sutherland’s seventy-five year old admonition about the role of the
government prosecutor is worth revisiting:

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PETERSON – ARMY 20100851



             [He] is the representative not of an ordinary party to a
             controversy, but of a sovereignty whose obligation to
             govern impartially is as compelling as its obligation to
             govern at all; and whose interest, therefore, in a criminal
             prosecution is not that it shall win a case, but that justice
             shall be done. As such, he is in a peculiar and very
             definite sense the servant of the law, the twofold aim of
             which is that guilt shall not escape or innocence suffer. He
             may prosecute with earnestness and vigor—indeed he
             should do so. But while he may strike hard blows, he is
             not at liberty to strike foul ones. It is as much his duty to
             refrain from improper methods calculated to produce a
             wrongful conviction as it is to use every legitimate means
             to bring about a just one.

Berger v. United States, 295 U.S. 78, 88 (1935). Appellate courts trot out portions
of this hoary adage with some frequency because prosecutors, in their zeal to win,
sometimes lose sight of the discipline involved in serving the law and not just the
executive. In a system of military justice premised upon the maintenance of good
order and discipline, it is especially important that trial counsel understand and
internalize the disciplined obligations of their dual roles. There is no acceptable
basis to go outside the record and engage in inflammatory rhetoric; a simple plea to
the panel to look at the evidence would have sufficed.

               Improper Argument and the High Hurdle of Plain Error

        Improper argument is a question of law that we review de novo. United States
v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011). In the absence of a defense objection to
trial counsel’s argument, we review appellant’s claim for plain error. United States
v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007). Appellant must show that there was
error which was plain or obvious and the error “materially prejudiced a substantial
right.” Id. As our higher court only too recently noted, “trial counsel must not ‘fan
the flames of the jurors’ fears by predicting that if they do not convict . . . some . . .
calamity will consume their community.’” United States v. Marsh, 70 M.J. 101, 106
(C.A.A.F. 2011) (citing Hodge v. Hurley, 426 F.3d 368, 384 (6th Cir. 2005)).

       We have no difficulty concluding that the trial counsel’s argument was both
error and plain. There is no evidence in the record that appellant lived near MWR,
swimming pools, elementary schools or playgrounds. There is no evidence that
appellant viewed all children as sexual objects. There is no evidence that appellant
was anything other than a consumer of child pornography, as egregious as that was.
The argument was an unfounded but calculated effort to portray appellant as a sexual
predator of young children, imminently dangerous to the panel members’ families
and friends. “Trial counsel’s invitation to the court members to imagine themselves



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PETERSON – ARMY 20100851


as potential future victims only served to inflame a fear as to what might happen if
the panel did not adjudge a discharge.” Marsh, 70 M.J. at 107.

        We must decide whether this error prejudiced appellant. Our higher court has
distilled from general federal practice three factors for us to use to assess the
prejudice: “(1) the severity of the misconduct, (2) the measures adopted to cure the
misconduct, and (3) the weight of the evidence supporting the conviction.” United
States v. Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005); Erickson, 65 M.J. at 225
(evaluating weight of evidence supporting the sentence).

       (1) Severity of the Misconduct. We find that trial counsel’s improper
comments strayed far beyond the evidence in the record and consequently were an
invitation to the panel “to accept new and inflammatory information as factual based
solely on her authority as the trial counsel.” Id. Trial counsel’s misconduct, while
brief, was severe. 3

       (2) Measures Adopted to Cure the Misconduct. We also find that the military
judge’s brief comments about trial counsel’s request for a specific sentence did not
directly address the tainted argument and remedy the misconduct. There was no
curative instruction or even the generic instruction to the panel members that
counsels’ argument is not evidence.

       (3) Weight of the Evidence Supporting the Sentence. The government called
but one witness in aggravation - appellant’s current company commander - who was
insufficiently familiar with appellant to give a qualified opinion on appellant’s
rehabilitative potential. Appellant’s enlisted record brief suggested no prior
misconduct. Appellant countered with the testimony of five character witnesses,

3
 Trial counsel first dipped her pen in the poisonous well when cross-examining two
of appellant’s character witnesses on whether they thought appellant’s misconduct
was “dishonorable.” Appellant’s contemporaneous objections initially were
overruled but after trial counsel started in with a third witness, the military judge
reversed himself, sustained the objection, and instructed the panel:

             And because one of the potential punishments in this case
             is a dishonorable discharge, I am going to specifically
             instruct you to disregard the testimony of the last two
             witnesses on cross-examination indicating that the
             accused’s conduct was dishonorable. I do not want you to
             interpret that opinion as an indication that those witnesses
             believe that the accused should receive a dishonorable
             discharge, because again, no witness can testify that they
             believe an accused should receive a punitive discharge.
             The decision is solely for you to make. So to avoid any
             issues, I am going to tell you to disregard those witnesses
             testimony that the accused’s conduct was dishonorable.
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PETERSON – ARMY 20100851


each of whom spoke well of appellant’s duty performance even while charges were
pending and each of whom was willing to continue serving with appellant despite the
conviction. When recalled on rebuttal, the company commander also lacked
sufficient foundation to give an opinion on retention. He knew appellant worked in
the dining facility and saw him perform his duties there. Thus the strength of the
government’s case in aggravation lay with appellant’s stipulation of fact admitting
to a five-year involvement with child pornography, his bringing the offensive
material with him to Iraq, and most importantly with the videos themselves.

       Trial counsel accurately and fairly described the content of the three videos of
child pornography in closing, “10yo KAJ R@YGOLD, “12yo girls raped by daddy,”
and “Child - !!!!!!! – PTHC.” The first depicts a naked adult male with an erect
penis lifting a very small girl in the air in an outdoor setting and then engaging in
intercourse with her. The second shows an adult male having sex with a pubescent
girl but shifts midpoint to the adult male having sex with a different, equally young
girl. The third video, arguably the most disturbing, involves an adult male with a
prepubescent boy and girl performing multiple sexual acts on each other. We have
no doubt that the panel was appalled when it reviewed this evidence during
deliberations and that it played a significant role in determining the sentence. When
considered with appellant’s admissions in his stipulation of fact to viewing child
pornography over an extended period of time preceding his enlistment, his transport
of the offending images from Georgia to Iraq, and his additional violation of General
Order No. 1, we find this to be strong evidence supporting a punitive discharge and
the twenty-month sentence and total forfeitures assessed by the panel. We also are
mindful that some of the sting of this sentence on appellant was absorbed by the
terms of the pretrial agreement capping confinement at not more than twelve months.

       This court has sufficient “experience and familiarity with [these offenses] to
reliably determine what sentence would have been imposed at trial by the military
judge or members.” United States v. Moffeit, 64 M.J. 40, 43 (C.A.A.F. 2006)
(Baker, J., concurring). Appellant’s disgraceful conduct and disregard for good order
and discipline persuade us in our experience that the panel would have decided upon
a punitive discharge without regard to the government’s improper argument.
Nonetheless, we have reasonable doubts whether the members would have conferred
a dishonorable discharge. See United States v. Sales, 22 M.J. 305, 307 (C.M.A.
1988). “To ensure no prejudice remains from the [government’s improper
argument]” we will set aside the dishonorable discharge and approve no more than a
bad-conduct discharge. United States v. Edmond, ARMY 9900904, slip op. at 4
(Army Ct. Crim. App. 12 Oct. 2006) (unpub.) (reassessing sentence and setting aside
reduction in grade on remand from C.A.A.F. due to “slightest doubt” whether trial
counsel’s misconduct impacted this component of sentence).

                                     DECISION

       The findings of guilty are affirmed. Reassessing the sentence on the basis of
the errors noted, the entire record, and in accordance with the principles of United

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PETERSON – ARMY 20100851


States v. Sales, 22 M.J. 305 (C.M.A. 1986), and United States v. Moffeit, 63 M.J. 40
(C.A.A.F. 2006), to include the factors identified by Judge Baker in his concurring
opinion in Moffeit, the court affirms only so much of the sentence as provides for
reduction to the grade of Private E1, twelve months’ confinement, total forfeiture of
all pay and allowances, and a bad-conduct discharge.


      Senior Judge JOHNSON and Judge KRAUSS concur.

                                       FOR
                                       FOR THE
                                           THE COURT:
                                               COURT:




                                       MALCOLM H.
                                       MALCOLM     H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of
                                       Clerk of Court
                                                Court




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