U.S. v. Palacios Cueto, 82 M.J. 323

First Principles: Constitutional Matters: Due Process

1. in some cases, uncorrected statements by a prosecutor may lead to a violation of due process if the judge does not adequately correct them; but in this case, the military judge gave proper instructions so that any error that occurred was not constitutional in dimension, and accordingly, the harmlessness beyond a reasonable doubt standard did not apply

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; and as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different
2. in determining whether an attorney’s conduct was deficient, an appellate court does not simply ask whether the attorney did everything possible that posed little or no risk to the client; instead, the test is whether counsel’s conduct falls within the wide range of reasonable professional assistance
3. in this case, defense counsel’s performance was not deficient in failing to advise appellant to reference his pending sex offender status in his unsworn statement where defense counsel reasonably could have decided not to advise appellant to mention sex offender registration requirements in his unsworn statement because mentioning them would prompt the military judge to instruct the members essentially to disregard such a collateral consequence in arriving at an appropriate sentence for an accused
4. an attorney’s decision to forego taking actions that likely would be futile is not deficient
5. in this case, defense counsel’s performance was not deficient in failing to advise appellant to mention in his unsworn statement that a change had been made in the law that removed his convicted offenses from offenses that would have required him to register as a sex offender or in failing to seek a tailored instruction about the change from the military judge where if appellant had mentioned the change in his unsworn statement, the military judge would have been correct in instructing the members that the change in the law did not apply to appellant because it had not yet gone into effect and that the members must follow the pre-amended law in sentencing appellant; such an instruction would have reduced or eliminated the possible benefit from mentioning the change in the law, and attorneys do not need to undertake futile acts
6. in this case, defense counsel’s performance was not deficient in failing to advise appellant to mention in his unsworn statement that if the court-martial did not sentence him to a punitive discharge, by regulation, the service would still discharge him administratively because (1) the regulation did not make an administrative discharge mandatory where it permitted a person convicted of a sex offense to apply for a waiver, and (2) a military judge could not determine whether an administrative discharge would occur without holding a trial within a trial, and even such a trial within a trial could produce only a speculative result
7. in a rare case, an attorney’s overall performance could be deficient even though the attorney did not make specific errors, but such cases usually would arise only when an appellant can point to a long series of questionable omissions by counsel that were not simply the product of human fallibility, but the result of a lack of conscientious effort

Military Justice Personnel: Prosecution Function: Trial Counsel

1. if a trial counsel makes statements to members that violate the limitations set forth in the RCMs, this can be a form of prosecutorial misconduct
2. no specific rule prohibits a trial counsel from using the word “justice” when speaking to the members; but a court-martial must reach a decision based only on the facts in evidence; accordingly, a prosecutor should be careful not to confuse the jury by conflating ‘justice’ and ‘criminal conviction; justice’ must be tethered to the evidence and the burden of proof lest it be confused with justice for the victim or society or the military justice system; similarly, trial counsel should not use the word “justice” to imply that sentencing should be based on unauthorized considerations
3. appellate judges must exercise care in determining whether a trial counsel’s statement is improper or has improper connotations; a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations; a statement that might appear improper if viewed in isolation may not be improper when viewed in context; and even if a statement is improper, it may not be sufficiently prejudicial, in the context of the entire trial, to violate the accused’s due process rights
4. the best approach for assessing the prejudice from prosecutorial misconduct involves a 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
5. in this case, it was not problematic where trial counsel tethered “justice” to the evidence during rebuttal closing argument by saying that a decision of guilty or not guilty is “justice” if it is based upon the evidence and the law
6. in this case, where in his sentencing argument, trial counsel defined “justice” to mean “an appropriate punishment,” he did not err because most military judges give members a comparable instruction and RCM 1002(f)(3)(C) directs courts-martial to take into consideration the need for the sentence to provide a just punishment for the offense
7. in this case, assuming that the trial counsel’s other repeated references to “justice” were plain and obvious error, those references did not cause appellant to suffer material prejudice to a substantial right where the misconduct was only moderately severe, effective curative measures were taken, and the weight of the evidence supporting the conviction was moderate
8. in some cases, uncorrected statements by a prosecutor may lead to a violation of due process if the judge does not adequately correct them; but in this case, the military judge gave proper instructions so that any error that occurred was not constitutional in dimension, and accordingly, the harmlessness beyond a reasonable doubt standard did not apply

Military Justice Personnel: Prosecution Function: Misconduct

1. if a trial counsel makes statements to members that violate the limitations set forth in the RCMs, this can be a form of prosecutorial misconduct
2. no specific rule prohibits a trial counsel from using the word “justice” when speaking to the members; but a court-martial must reach a decision based only on the facts in evidence; accordingly, a prosecutor should be careful not to confuse the jury by conflating ‘justice’ and ‘criminal conviction; justice’ must be tethered to the evidence and the burden of proof lest it be confused with justice for the victim or society or the military justice system; similarly, trial counsel should not use the word “justice” to imply that sentencing should be based on unauthorized considerations
3. appellate judges must exercise care in determining whether a trial counsel’s statement is improper or has improper connotations; a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations; a statement that might appear improper if viewed in isolation may not be improper when viewed in context; and even if a statement is improper, it may not be sufficiently prejudicial, in the context of the entire trial, to violate the accused’s due process rights
4. the best approach for assessing the prejudice from prosecutorial misconduct involves a 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
5. in this case, it was not problematic where trial counsel tethered “justice” to the evidence during rebuttal closing argument by saying that a decision of guilty or not guilty is “justice” if it is based upon the evidence and the law
6. in this case, where in his sentencing argument, trial counsel defined “justice” to mean “an appropriate punishment,” he did not err because most military judges give members a comparable instruction and RCM 1002(f)(3)(C) directs courts-martial to take into consideration the need for the sentence to provide a just punishment for the offense
7. in this case, assuming that the trial counsel’s other repeated references to “justice” were plain and obvious error, those references did not cause appellant to suffer material prejudice to a substantial right where the misconduct was only moderately severe, effective curative measures were taken, and the weight of the evidence supporting the conviction was moderate
8. in some cases, uncorrected statements by a prosecutor may lead to a violation of due process if the judge does not adequately correct them; but in this case, the military judge gave proper instructions so that any error that occurred was not constitutional in dimension, and accordingly, the harmlessness beyond a reasonable doubt standard did not apply

Military Justice Personnel: Military Judge: Instructions

1. while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused

Trial Stages: Sentence and Punishment: Evidence

1. a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration
2. a sex offender registration requirement is a collateral consequence of the conviction alone, not the sentence
3. while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused
4. in sentencing, a court-martial may consider the possible loss of retirement benefits that follow from a punitive discharge
5. a court-martial certainly may consider the impact of the offense on the psychological well-being of any victim; but a court-martial should not consider how the sentence would affect the victim

Trial Stages: Sentence and Punishment: Unsworn Statements

1. while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused

Trial Stages: Sentence and Punishment: Lawfulness of Sentence

1. a collateral consequence is a penalty for committing a crime, in addition to the penalties included in the criminal sentence; the general rule concerning collateral consequences is that courts-martial are to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration
2. a sex offender registration requirement is a collateral consequence of the conviction alone, not the sentence
3. while an accused may raise a collateral consequence in an unsworn statement, the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused
4. in sentencing, a court-martial may consider the possible loss of retirement benefits that follow from a punitive discharge

Trial Stages: Appeals: Harmless / Prejudicial Error

1. the best approach for assessing the prejudice from prosecutorial misconduct involves a 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
2. for nonconstitutional errors, an appellate court may grant relief only if the error materially prejudiced the substantial rights of the accused; however, the prejudice analysis is different if the errors involve constitutional rights; if a constitutional error is structural, then reversal is automatic; but if a constitutional error is nonstructural, then the government must prove that the error was harmless beyond a reasonable doubt even on plain error review
3. in some cases, uncorrected statements by a prosecutor may lead to a violation of due process if the judge does not adequately correct them; but in this case, the military judge gave proper instructions so that any error that occurred was not constitutional in dimension, and accordingly, the harmlessness beyond a reasonable doubt standard did not apply

Trial Stages: Appeals: Preservation of Error / Plain Error

1. when a party does not object to comments by the prosecutor during voir dire, opening statement, argument on the findings, or argument on the sentence, an appellate court reviews for plain error; under plain error review, appellant bears the burden of demonstrating that (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews de novo allegations of ineffective assistance of counsel
2. to establish that ineffective assistance of counsel occurred, an appellant must prove both that the defense counsel’s performance was deficient and that the deficiency caused prejudice; with respect to the first prong of this test, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; and as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different
3. in determining whether an attorney’s conduct was deficient, an appellate court does not simply ask whether the attorney did everything possible that posed little or no risk to the client; instead, the test is whether counsel’s conduct falls within the wide range of reasonable professional assistance
4. appellate judges must exercise care in determining whether a trial counsel’s statement is improper or has improper connotations; a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations; a statement that might appear improper if viewed in isolation may not be improper when viewed in context; and even if a statement is improper, it may not be sufficiently prejudicial, in the context of the entire trial, to violate the accused’s due process rights
5. when a party does not object to comments by the prosecutor during voir dire, opening statement, argument on the findings, or argument on the sentence, an appellate court reviews for plain error; under plain error review, appellant bears the burden of demonstrating that (1) there was error, (2) the error was clear and obvious, and (3) the error materially prejudiced a substantial right of the accused
6. the best approach for assessing the prejudice from prosecutorial misconduct involves a 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
7. for nonconstitutional errors, an appellate court may grant relief only if the error materially prejudiced the substantial rights of the accused; however, the prejudice analysis is different if the errors involve constitutional rights; if a constitutional error is structural, then reversal is automatic; but if a constitutional error is nonstructural, then the government must prove that the error was harmless beyond a reasonable doubt even on plain error review