UNITED STATES, Appellee

                                    v.

               Terry A. FLETCHER, Technical Sergeant
                     U.S. Air Force, Appellant

                              No. 04-0465

                         Crim. App. No. 34945

       United States Court of Appeals for the Armed Forces

                       Argued January 25, 2005

                     Decided September 30, 2005

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ. joined. CRAWFORD, J.,
filed a dissenting opinion.

                                 Counsel

For Appellant: Captain John N. Page III (argued); Colonel
Beverly B. Knott, Lieutenant Colonel Carlos McDade, Major Terry
L. McElyea, and Captain Jennifer K. Martwick (on brief).

For Appellee: Captain Kevin P. Stiens (argued); Colonel Gary F.
Spencer and Lieutenant Colonel Robert V. Combs (on brief).

Military Judge:   Harvey A. Kornstein


       This opinion is subject to revision before final publication.
United States v. Fletcher, No. 04-0465/AF

       Judge ERDMANN delivered the opinion of the court.

       Technical Sergeant Terry Fletcher entered a plea of not

guilty to wrongful use of cocaine in violation of Article 112a,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 912a

(2000).   He was tried and sentenced by members to a bad-conduct

discharge, one month of confinement and a reduction in grade to

E-1.   The convening authority approved the sentence, and the

findings and sentence were affirmed by the United States Air

Force Court of Criminal Appeals in an unpublished opinion.

United States v. Fletcher, No. ACM 34945 (A.F. Ct. Crim. App.

Feb. 27, 2004).

       Trial prosecutorial misconduct is behavior by the

prosecuting attorney that “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.”

Berger v. United States, 

, 84 (1935).    While

prosecutorial misconduct does not automatically require a new

trial or the dismissal of the charges against the accused,

relief will be granted if the trial counsel’s misconduct

“actually impacted on a substantial right of an accused (i.e.,

resulted in prejudice).”   United States v. Meek, 

, 5

(C.A.A.F. 1996).   During the findings argument the trial counsel

offered her personal views, made disparaging comments about

Fletcher and his counsel and drew parallels between Fletcher’s



                                  2
United States v. Fletcher, No. 04-0465/AF

case and the legal problems of various entertainers and public

religious figures.    We granted review to determine whether the

trial counsel’s acts constituted prejudicial misconduct.1      We

find that the trial counsel’s comments during her findings

argument rose to the level of prosecutorial misconduct and that

the misconduct was prejudicial.

                             BACKGROUND

       Fletcher was accused of wrongfully using cocaine.   The

Government’s case was based on the positive results of two

urinalysis tests.    The first urinalysis was performed as part of

a random inspection of Fletcher’s unit and he voluntarily

submitted to the second test.

       At trial Fletcher produced several character witnesses who

described him as a “truthful person” and a “law abiding citizen”

with a “positive moral character.”    Fletcher called witnesses

from his church who testified about his substantial

participation in church activities.    Fletcher also took the

stand himself, testifying about his strict religious upbringing,

his nearly twenty years in the Air Force, his family life and

his involvement in the community.




1
    We granted review of the following issue:
       WHETHER THE CIRCUIT TRIAL COUNSEL’S FINDINGS ARGUMENT
       WAS IMPROPER AND MATERIALLY PREJUDICED APPELLANT’S
       SUBSTANTIAL RIGHTS.



                                  3
United States v. Fletcher, No. 04-0465/AF

     After the presentation of the evidence, the trial counsel

made a findings argument. (Attached as Appendix I to this

opinion.)   The argument contained a number of references to the

trial counsel’s personal opinions about the believability of the

evidence and personal comments about the trial defense counsel

and Fletcher.   In addition, near the end of her argument the

trial counsel spoke to the members about a number of

entertainers and religious leaders, saying:

     Is religion an indicator of law abidingness? Is it
     okay to play faith for a get out of jail free card ---
     nah uh. Do people even with true faith make criminal
     mistakes? . . . [D]o they use drugs? Yeah. Do they
     commit adultery on their wives? Ask Jessie [sic]
     Jackson about his two year old daughter. Ask Jerry
     Falwell about the hooker that he got caught with
     having intercourse in a car in Palm Springs. Jim
     Bakker cheating on his taxes. I challenge you in
     findings to come up with the rest. I made a huge list
     but I don’t have time to go over them. [Does] the
     fact that he’s done good work mean that he can’t use
     cocaine, nah uh. Dennis Quaid, prolific actor, needed
     inpatient treatment. Friends, Matthew Perry, fabulous
     performer, shows up every week. Had to go to
     inpatient treatment for drugs. How about this one,
     Robert Downey, Jr., wins an Emmy for the performances
     that he had during the time . . . he was actually
     being arrested, charged and showing up positive for
     having used cocaine.2




2
   We have included this text and the attached Appendix I because
the words used by the trial counsel are a necessary factual
predicate to our decision. In so doing the court is not
validating the accuracy of the trial counsel’s statements with
respect to the conduct mentioned or whether the persons named
were in fact appropriately linked to such conduct.




                                 4
United States v. Fletcher, No. 04-0465/AF

                             DISCUSSION

I.   Prosecutorial Misconduct

The cornerstone for any discussion of prosecutorial misconduct

is Justice Sutherland’s opinion in Berger v. United States:

     The [prosecutor] 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.

295 U.S. at 88.   The Supreme Court explained that prosecutorial

misconduct occurs when a “prosecuting attorney overstep[s] the

bounds of propriety and fairness which should characterize the

conduct of such an officer in the prosecution of a criminal

offense.”   Id. at 84; see also Meek, 44 M.J. at 5

(“Prosecutorial misconduct can be generally defined as action or

inaction by a trial counsel in violation of some legal norm or

standard, e.g., a constitutional provision, a statute, a Manual

rule, or an applicable professional ethics canon.”).   Fletcher

identifies four categories of alleged misconduct by the trial

counsel:    (1) interjection of her personal beliefs and opinions,




                                  5
United States v. Fletcher, No. 04-0465/AF

(2) disparaging comments about defense counsel, (3) disparaging

comments about the defendant, and (4) introduction of facts not

in evidence.

     During the prosecution’s findings argument, defense counsel

objected to a series of comments that attacked him personally.

As proper objection was made at the trial level, we will review

those comments for prejudicial error.   Article 59, UCMJ, 10

U.S.C. § 859 (2000).   There was no objection made to the

remainder of the trial counsel’s comments.    Failure to object to

improper argument before the military judge begins to instruct

the members on findings constitutes waiver.   Rule for Courts-

Martial (R.C.M.) 919(c).   In the absence of an objection, we

review for plain error.    United States v. Rodriguez, 

,

88 (C.A.A.F. 2004).    Plain error occurs when (1) there is error,

(2) the error is plain or obvious, and (3) the error results in

material prejudice to a substantial right of the accused.   Id.

at 88-89.

     1.     Interjection of the Trial Counsel’s Personal Beliefs
            and Opinions

     It is improper for a trial counsel to interject herself

into the proceedings by expressing a “personal belief or opinion

as to the truth or falsity of any testimony or evidence.”

United States v. Horn, 

, 430 (C.M.A. 1980) (quoting

ABA Standards, The Prosecution Function, § 5.8(b) (1971)); see




                                  6
United States v. Fletcher, No. 04-0465/AF

also United States v. Knickerbocker, 

, 129-30 (C.M.A.

1977).    When a trial counsel offers her personal opinions, they

become “‘a form of unsworn, unchecked testimony and tend to

exploit the influence of [the] office and undermine the

objective detachment which should separate a lawyer from the

cause for which [s]he argues.’”    Horn, 9 M.J. at 430 (quoting

ABA Standards, § 5.8(b), Commentary at 128).    There are many

ways a trial counsel might violate the rule against expressing a

personal belief or opinion.     One is by giving personal

assurances that the Government’s witnesses are telling the

truth.    United States v. Young, 

, 18-19 (1985).

Another is by offering substantive commentary on the truth or

falsity of the testimony and evidence.    Id. at 8.

     a.     Improper vouching

     The federal circuit courts are in agreement that improper

vouching occurs when the trial counsel “plac[es] the prestige of

the government behind a witness through personal assurances of

the witness’s veracity.”   United States v. Necoechea, 

, 1276 (9th Cir. 1993) (citations omitted).3


3
  See also United States v. Perez-Ruiz, 

, 9 (1st Cir.
2003); United States v. Modica, 

, 1178 (2d Cir.
1981); United States v. Walker, 

, 187 (3d Cir.
1998); United States v. Sanchez, 

, 198 (4th Cir.
1997); United States v. Ramirez-Velasquez, 

, 874
(5th Cir. 2003); United States v. Francis, 

, 550
(6th Cir. 1999); United States v. Amerson, 

, 686
(7th Cir. 1999); United States v. Beaman, 

, 1065



                                   7
United States v. Fletcher, No. 04-0465/AF

     Improper vouching can include the use of personal pronouns

in connection with assertions that a witness was correct or to

be believed.   United States v. Washington, 

,

431 (D. Conn. 2003).   Prohibited language includes “I think it

is clear,” “I’m telling you,” and “I have no doubt.”    Id.

“Acceptable language includes ‘you are free to conclude,’ ‘you

may perceive that,’ ‘it is submitted that,’ or ‘a conclusion on

your part may be drawn.’”   Id.

     In this case, the trial counsel repeatedly vouched for the

credibility of the Government’s witnesses and evidence.    For

example, after discussing the testing methods and cut-off

levels, she concluded “we know that that was from an amount

that’s consistent with recreational use, having fun and partying

with drugs.”   Emphasis added.    She referred to another exhibit,

the drug test results, personally characterizing the exhibit as

“a perfect litigation package.”    In talking about one of the

prosecution’s main witnesses, she opined, “It’s very apparent

from talking to Doctor Jain that he is the best possible person

in the whole country to come speak to us about this.”

     b.   Unsolicited personal views of the evidence and
          comments on the defendant’s guilt




(8th Cir. 2004); Cargle v. Mullin, 

, 1219 (10th
Cir. 2003); United States v. Cano, 

, 1365 (11th
Cir. 2002).




                                   8
United States v. Fletcher, No. 04-0465/AF

     Improper interjection of the prosecutor’s views can also

include “substantive commentary on the truth or falsity of

testimony or evidence.”   Washington, 263 F. Supp. 2d at 431.     As

the Supreme Court has recognized, “Prosecutors sometimes breach

their duty to refrain from overzealous conduct by commenting on

the defendant’s guilt and offering unsolicited personal views on

the evidence.”   Young, 470 U.S. at 7.

     During her findings argument, the trial counsel described

the Government’s evidence as “unassailable,” “fabulous,” and

“clear”.   With respect to Fletcher’s guilt, the trial counsel

said, “it’s so clear from the urinalyses that he was doing it

over and over,” “He clearly is a weekend cocaine user,” and “He

is in fact guilty of divers uses of cocaine.”   When describing

Fletcher’s defense she used words like “nonsense,” “fiction,”

“unbelievable,” “ridiculous” and “phony”.

     The trial counsel’s interjection of her personal beliefs

and opinions was error.   Comments such as the ones that the

trial counsel made about Dr. Jain and the prosecution’s exhibits

could be perceived as putting the weight of the Government

behind the statements with the result that the testimony or

evidence in question appears stronger than it really is.

Berger, 295 U.S. at 88.   This is a dangerous practice because

“when the prosecutor conveys to the jurors his personal view

that a witness spoke the truth, it may be difficult for them to



                                 9
United States v. Fletcher, No. 04-0465/AF

ignore his views, however biased and baseless they may in fact

be.”   Modica, 663 F.2d at 1178-79.

       In addition, when a trial counsel offers her personal views

of a defendant’s guilt or innocence, as trial counsel did in

this case, it may confuse the jurors and lead them to believe

that the issue is whether or not the prosecutor is truthful

instead of whether the evidence is to be believed.   Id. at 1181.

As the First Circuit has explained, “Such tactics are not to be

condoned.    They tilt the scales of justice, risk prejudicing the

defendant, and carry the potential for distracting the jury from

its assigned task of assessing the credibility based solely on

the evidence presented at trial and the demeanor of the

witnesses.”   Perez-Ruiz, 353 F.3d at 9-10.   These are results we

seek to avoid.

       Because defense counsel did not raise any objection at

trial, the injection of trial counsel’s personal beliefs and

opinions must rise to the level of plain error before relief is

warranted.    We find that the errors here are plain and obvious.

Over the course of her findings argument, there are more than

two dozen instances in which the trial counsel offered her

personal commentary on the truth or falsity of the testimony and

evidence.    She repeatedly inserted herself into the proceedings

by using the pronouns “I” and “we.”   She put the authority of

the Government and her office behind the prosecution’s witnesses



                                 10
United States v. Fletcher, No. 04-0465/AF

and she bluntly concluded that Fletcher was in fact guilty.

These errors were blatant and obvious.

     2.   Disparaging Comments About Defense Counsel

     Not only is it improper for a trial counsel to interject

her personal views into a case, it is also improper for a trial

counsel to attempt to win favor with the members by maligning

defense counsel.   United States v. Xiong, 

, 675 (7th

Cir. 2001) (holding that “disparaging remarks directed at

defense counsel are reprehensible”);   see also United States v.

Ollivierre, 

, 418 (4th Cir. 2004) (recognizing that

it is “improper for a prosecutor to launch a personal attack

upon the defense attorney or upon defense lawyers generally”),

vacated and remanded by, 

 (2005);   TJAG Policy

Memorandum, TJAGD Standards – 2, Air Force Rules of Professional

Conduct and Standards for Civility in Professional Conduct,

attachment 2, para. 28 (Oct. 15, 2002) (explaining that a lawyer

should not “degrade the intelligence, ethics, morals, integrity

or personal behavior of others, unless such matters are

legitimately at issue in the proceeding”).

     When one attorney makes personal attacks on another, there

is the potential for a trial to turn into a popularity contest.

Rather than deciding the case “solely on the basis of the

evidence presented,” as is required, the members may be

convinced to decide the case based on which lawyer they like



                                11
United States v. Fletcher, No. 04-0465/AF

better.    Young, 470 U.S. at 18.    Disparaging remarks about

defense counsel may “caus[e] the jury to believe that the

defense’s characterization of the evidence should not be

trusted, and, therefore, that a finding of not guilty would be

in conflict with the true facts of the case.”     Xiong, 262 F.3d

at 675.    In addition, derogatory comments about opposing counsel

can “detract from the dignity of judicial proceedings.”     Id.

       In this case, trial counsel made disparaging comments about

defense counsel’s style and also made comments suggesting that

Fletcher’s defense was invented by his counsel.     Defense counsel

objected to the first group of comments, but not to the second

group.    Thus, we will analyze the comments suggesting the

invented defense under the plain error standard.     In assessing

prejudice, we will consider the other erroneous comments that

were objected to by defense counsel.

       Here, the trial counsel openly criticized defense counsel

by accusing him of scaring witnesses, cutting off witnesses and

suborning perjury from his own client.     At the start of her

rebuttal argument the trial counsel said, “Well, we sure do have

different styles.   And I think it actually is going to play for

once in the case.   I will not shout at you.    I will reason with

you.   I will present evidence and what’s fair.”    A few pages

later, she characterized the defense counsel as “the one with

the overpowering and yelling and cutting people off cross



                                    12
United States v. Fletcher, No. 04-0465/AF

examinations and the wild argument.”   She then said, “He’s the

one that could have scared a witness and freaked them out.     Me,

I won’t cut them off.   I’ll apologize if I do.”   She later

stated, “Well, ask yourselves, do I scare you?”

     Defense counsel properly objected to these comments because

it was error for the trial counsel to make this type of personal

attack.   See United States v. Rodriguez-Estrada, 

,

159 (1st Cir. 1989) (recognizing that “the prosecutor’s

obligation to desist from the use of pejorative language . . .

is every bit as solemn as his obligation to attempt to bring the

guilty to account.”).   Defense counsel’s objections were

sustained by the military judge.

     The defense counsel did not object when the trial counsel

suggested that Fletcher’s defense was invented by his counsel.

The trial counsel referred to Fletcher’s arguments as “fiction”

at least four times and called one of Fletcher’s arguments a

“phony distraction.”    She also called the defense case “that

thing they tried to perpetrate on you.”   As the district court

explained in Washington, “[a] prosecutor must be careful not to

characterize a defense as fabricated.”    263 F. Supp. 2d at 434

(internal quotation marks and citation omitted).   It is error

for a trial counsel to disparage defense counsel by accusing him

of “intentionally omitting unfavorable evidence in aid of

spinning a ‘yarn’ more favorable to [the defendant].”   Id. at



                                 13
United States v. Fletcher, No. 04-0465/AF

436-37; see also United States v. White, 

, 206 (2d

Cir. 1973) (criticizing the prosecutor’s repeated suggestions

that the defense was “fabricated” as “unwise and unnecessary”).

     The trial counsel’s disparaging remarks about defense

counsel were less incendiary than her other comments and carried

with them a greater likelihood of having been provoked.    Yet

when combined with the erroneous comments made about defense

counsel’s style, the trial counsel’s other comments disparaging

defense counsel constitute error that was plain and obvious.

Trial counsel’s attacks on defense counsel’s courtroom manner

and integrity were gratuitous and obviously intended to curry

favor with the members.   She drew direct comparisons between her

style and that of defense counsel, painting herself as less

“scary,” more polite and more honest.   The trial counsel’s

obvious attempts to win over the jury by putting herself in a

favorable light while simultaneously making defense counsel look

like a mean and nasty person who would say anything to get his

client off the hook were plainly improper.   The trial counsel

erroneously encouraged the members to decide the case based on

the personal qualities of counsel rather than the facts.   Not

only did her comments have the potential to mislead the members,

but they also detracted from the dignity and solemn purpose of

the court-martial proceedings.




                                 14
United States v. Fletcher, No. 04-0465/AF

     3. Disparaging Comments About Fletcher’s Credibility

Disparaging comments are also improper when they are directed to

the defendant himself.   For example, this court has said that

calling the accused a liar is a “dangerous practice that should

be avoided.”   United States v. Clifton, 

, 30 n.5

(C.M.A. 1983).    As the Second Circuit has explained, ”Although

we might expect a character in a Perry Mason melodrama to point

to a defendant and brand him a liar, such conduct is

inconsistent with the duty of the prosecutor to ‘seek justice,

not merely to convict.’”   White, 486 F.2d at 206 (quoting ABA

Code of Professional Responsibility, Final Draft, 1969, Ethical

Consideration 7-13, at 79).

     Here, the trial counsel told the members that Fletcher had

“zero credibility” and that his testimony was “utterly

unbelievable.”    In rebuttal the trial counsel also said, “[W]hen

the Accused gets up on the stand and he lies who in fact was

asking him the question?   His own lawyer.   Not me.   And that was

the first lie.”   Fletcher argues that these comments were plain

error because they branded him a liar, unfairly disparaging and

demeaning him in the eyes of the members.    Fletcher argues that

the trial counsel’s comments were similar to those made in

Knickerbocker, where this court held that the trial counsel

acted inappropriately by offering his personal opinion that the




                                 15
United States v. Fletcher, No. 04-0465/AF

accused’s testimony was a “fairy tale” that he found

“insulting.”   2 M.J. at 129.

       The lower court found that “[t]hese comments were proper

and relevant when viewed in the context of the trial as a

whole.”   We disagree.   We find that the trial counsel’s comments

crossed the “exceedingly fine line which distinguishes

permissible advocacy from improper excess.”    White, 486 F.2d at

207.   Fletcher’s defense rested heavily on the claim that he was

a good airman with an excellent reputation for truthfulness, and

Fletcher provided testimony that could readily be viewed as

incorrect or even as a lie.     He first testified that he had

never used drugs, but later admitted that he had experimented

with marijuana.   The trial counsel then properly impeached

Fletcher on the stand.   Thus, the defense opened the door and it

was appropriate for the trial counsel to comment on Fletcher’s

conflicting testimony during her findings argument.    It was

improper, however, for the trial counsel to use the language

that she did, language that was more of a personal attack on the

defendant than a commentary on the evidence.

       The question is whether this error rises to the level of

plain error.   Although the trial counsel should have avoided

characterizing Fletcher as a liar and confined her comments

instead to the plausibility of his story, her comments were not

so obviously improper as to merit relief in the absence of an



                                  16
United States v. Fletcher, No. 04-0465/AF

objection from counsel.    Accordingly, we find that the trial

counsel’s comments about Fletcher’s credibility did not rise to

the level of plain error.

     4.     Introduction of Facts Not in Evidence

     It has long been held that a court-martial must reach a

decision based only on the facts in evidence.       United States v.

Bouie, 

, 233, 

, 13 (1958).       It is also

well established that arguments made by counsel are not

evidence.    Clifton, 15 M.J. at 29.     “When counsel argues facts

not in evidence, or when he discusses the facts of other cases,

he violates both of these principles.”      Id. at 29-30.

     There is, however, an exception to this general rule.          This

court has held that it is proper for a trial counsel to comment

during argument on “contemporary history or matters of common

knowledge within the community.”       United States v. Kropf, 

, 108 (C.M.A. 1994).    In the past, “common knowledge”

has included “knowledge about routine personnel actions,”

United States v. Stargell, 

, 94 (C.A.A.F. 1998);

knowledge of ongoing military actions overseas, United States v.

Meeks, 

, 158-59 (C.M.A. 1994); knowledge of the

Navy’s “zero tolerance” policy for drug offenses, Kropf, 39 M.J.

at 108-09; the existence in the United States of a “war on

drugs,” United States v. Barrazamartinez, 

, 175-76

(C.A.A.F. 2003); and any other matter “upon which men in general



                                  17
United States v. Fletcher, No. 04-0465/AF

have a common fund of experience and knowledge, through data

notoriously accepted by all.”    United States v. Jones, 

, 87, 

, (1952) (quoting Wigmore, Evidence § 2570 3d

ed.).

        At the same time, counsel are prohibited from making

arguments calculated to inflame the passions or prejudices of

the jury.    Barrazamartinez, 58 M.J. at 76.   For example, in

Clifton, the accused was charged with adultery.     15 M.J. at 27.

During the findings argument, the trial counsel used an analogy

to try to persuade the members that they could infer prejudice

to good order and discipline.    Id. at 28.    The trial counsel

argued that adultery is like heroin use, that both are charged

as violations of Article 134, UCMJ, 10 U.S.C. § 834 (2000), and

that in both cases prejudice to good order and discipline can be

inferred.    Id.   On appeal, this court found that trial counsel’s

argument improperly drew a connection between the accused’s

actions and drug use in order to inflame the passions and

prejudices of the court members.       Id.

        In this case Fletcher argues that it was plain error for

the trial counsel to refer to Jesse Jackson, Jerry Falwell, Jim

Bakker, Dennis Quaid, Matthew Perry and Robert Downey Jr.

because there were no facts in evidence regarding any of these

individuals and their names were used only for their sensational

value.    The Government maintains that such matters are within



                                  18
United States v. Fletcher, No. 04-0465/AF

the common knowledge of the community and that Fletcher opened

the door by arguing that he could not be a drug user because he

had a reputation for doing good work and regularly attending

church.

     We find that the trial counsel’s references to religious

figures and entertainers improperly invited comparison to other

cases, the facts of which were not admitted into evidence and

which bore no similarity to Fletcher’s case.    Although

references to public figures and news stories may be allowed,

the specificity and detail of her comments went well beyond the

generic comments we have allowed in the past.   See

Barrazamartinez, 58 M.J. at 175-76; Kropf, 39 M.J. at 108-09.

The trial counsel did not make generalized references to current

events to give her argument some context.   She made specific

references to sensational events not in evidence in order to

support her contention that Fletcher was guilty.   Fletcher’s

good citizen defense may have opened the door to an appropriate

response, but the comments of the trial counsel were “outside

the bounds of fair comment.”   Barrazamartinez, 58 M.J. at 178

(Baker, J., dissenting).

     Moreover, this error was plain and obvious.      When the trial

counsel asked the members to “ask Jesse Jackson about his two

year old daughter,” and to “[a]sk Jerry Falwell about the hooker

that he got caught having intercourse with in a car in Palm



                                19
United States v. Fletcher, No. 04-0465/AF

Springs,” she was not drawing legitimate inferences based on the

evidence nor was she referring to matters within the common

knowledge of the members.   She was instead inviting the members

to accept new and inflammatory information as factual based

solely on her authority as the trial counsel.     These arguments

were clearly improper and should have been prohibited or

stricken by the military judge.

      To summarize, we find error in trial counsel’s open

criticism and personal attack upon defense counsel.     Because

this error was properly preserved by objection, we will test for

prejudice under Article 59(a).    We also find error that is

“plain and obvious” in trial counsel’s arguments that vouched

for evidence, injected unsolicited personal views of the

evidence and Fletcher’s guilt, suggested that the defense was a

fabrication, and introduced facts not in evidence.     Because

there was no objection to these “plain and obvious” errors, we

will test them under the plain error doctrine to determine

whether they resulted in material prejudice to a substantial

right of the accused.

II.   Prejudice

        We have previously held that “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.”   Meek, 44 M.J. at 6.     In assessing prejudice, we



                                  20
United States v. Fletcher, No. 04-0465/AF

look at the cumulative impact of any prosecutorial misconduct on

the accused’s substantial rights and the fairness and integrity

of his trial.   Id. at 5.   The federal circuit courts use a

variety of different tests to determine the impact of

prosecutorial misconduct on a trial.   We believe the best

approach 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.   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.

     1.   Severity of the Misconduct

     Indicators of severity include (1) the raw numbers -– the

instances of misconduct as compared to the overall length of the

argument, (2) whether the misconduct was confined to the trial

counsel’s rebuttal or spread throughout the findings argument or

the case as a whole; (3) the length of the trial; (4) the length

of the panel’s deliberations, and (5) whether the trial counsel

abided by any rulings from the military judge.    See Modica, 663

F.2d at 1181.

     Here, the trial counsel’s improper comments permeated her

entire findings argument.   In twenty-one pages there are several



                                 21
United States v. Fletcher, No. 04-0465/AF

dozen examples of improper argument.     The improper comments do

not stand as isolated incidents of poor judgment in an otherwise

long and uneventful trial.      Fletcher’s court-martial lasted less

than three days and the members deliberated for less than four

hours.    Accordingly, the trial counsel’s misconduct was both

pervasive and severe.

     2.     Curative Measures

     The military judge’s curative efforts were minimal and

insufficient to overcome the severity of the trial counsel’s

misconduct.    Before the findings argument began the military

judge gave a generic limiting instruction reminding the members

that “what the attorneys say is not evidence.”     This instruction

was not a targeted, curative response as it was given before the

findings arguments rather than in response to a given statement

or at the end of the argument.     On a single occasion during the

findings argument, the military judge chastised the trial

counsel for her personal attacks on defense counsel.     This

single rebuke was not curative and was not enough to remedy the

trial counsel’s severe and pervasive misconduct.     See Horn, 9

M.J. at 430.

     The military judge did not make any effort to remedy any

misconduct other than the few statements to which defense

counsel objected.   As this court has recognized, “the judge

should have interrupted trial counsel before [s]he ran the full



                                   22
United States v. Fletcher, No. 04-0465/AF

course of [her] impermissible argument.     Corrective instructions

at an early point might have dispelled the taint of the initial

remarks.”   Knickerbocker, 2 M.J. at 129.    On the facts of this

case, “[i]t is impossible to say that the evil influence upon

the [members] of these acts of misconduct was removed by such

mild judicial action as was taken.”   Berger, 295 U.S. at 85.

     3.     Weight of the Evidence

     Fletcher argues that the court should view the strength of

the Government’s case absent any misconduct by the trial counsel

with some skepticism.   Fletcher argues that there were no

testifying eyewitnesses who saw him use cocaine, he never

admitting to using cocaine, he readily consented to the second

drug test after the first positive result, he had a long and

distinguished military career, and there were numerous character

witnesses who testified to both his reputation for truthfulness

and his law-abiding character.   Although this court has upheld

convictions in which a urinalysis test was the primary evidence,

we have never said that a positive drug test automatically leads

to a conviction.   In addition, Fletcher not only testified

directly that he had not used cocaine, he presented

circumstantial evidence concerning his religious and family life

that could reasonably have raised questions in the members’

minds about the strength of the prosecution’s evidence.




                                 23
United States v. Fletcher, No. 04-0465/AF

       When the three factors set out above are weighed against

one another, the balance is firmly in Fletcher’s favor.    The

trial counsel made multiple improper arguments.    She violated

the rules against vouching for witnesses, offering of personal

views, attacking opposing counsel, and arguing based on

scandalous facts not in evidence.     In addition, her argument

based on facts not in evidence was not extraneous commentary,

but it was aimed directly at Fletcher’s good citizen/good

character defense.   The trial counsel’s “excess zeal [was] so

egregious that it taint[ed] the conviction.”    White, 486 F.2d at

204.   Her misconduct was not “slight or confined to a single

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

cumulative effect upon the jury which cannot be regarded as

inconsequential.”    Berger, 295 U.S. at 89.   In this case, trial

counsel’s statements were so inflammatory and damaging that we

cannot be confident that the members convicted Fletcher on the

basis of the evidence alone.

       Accordingly, we find that the errors here were materially

prejudicial to Fletcher’s substantial rights under both Article

59(a) and the plain error doctrine.    In light of this prejudice,

the findings and sentence must be reversed.

                                 DECISION

       The decision of the United States Air Force Court of

Criminal Appeals is reversed.   The findings and sentence are set



                                 24
United States v. Fletcher, No. 04-0465/AF

aside, and the record of trial is returned to the Judge Advocate

General of the Air Force.   A rehearing is authorized.




                                25
United States v. Fletcher, No. 04-0465/AF

                                 APPENDIX I

                      United States v. Fletcher

                              04-0465/AF

                 FINDINGS ARGUMENT BY THE GOVERNMENT

       CTC: Good morning.   As we told you in our opening statement

of this case, the Accused had a secret and his urine told that

the Accused used cocaine on diverse occasions in April of 2001.

As we turn and look at the evidence in this case, it’s going to

be apparent that Prosecution Exhibits 1, 2, 3, 4, the bottles,

they’re all reliable.   They’re all trustworthy.   They are all

well done. He in fact went in, gave his urine and it was his

urine that was sent to the lab and it was his urine that was

tested at the lab.   So, we don’t really have to worry about what

happened, because of the triple locks, the ciphers.    The fact

that the Accused’s sample was collected according to the

military standards, the exacting standards that we set for this.

       Now, that brings us then to what happens at the lab, which

is where we hear from Doctor Narish Jain, and that’s Prosecution

Exhibit number 6.    It’s very apparent from talking to Doctor

Jain that he is the best possible person in the whole country to

come speak to us about this.    He’s the father of GCMS for urine

testing for drugs.    He was there at the beginning and he’s

there now.   And the defense would want to say that he’s an old

man.   Well, you saw him.    He’s on the top of his game.   He’s



                                  26
United States v. Fletcher, No. 04-0465/AF

never been better.    The defense would like to say, well, the

machines are old.    Don’t trust the man, don’t trust the

machines.    Neither the man nor the machines are old.   They are

both on the top of their game and the Air Force is using the

best ones possible.    The defense would like to say “Hey, Doctor

Jain, he’s not even from the lab.”     Isn’t that great though?

He’s independent.    He’s not there from Brooks Laboratory

representing a lab that he doesn’t want to turn in for not being

good.    He’s an independent person who is a civilian, who doesn’t

work for Brooks Laboratory, but is deeply and intimately

involved in the setting up and the oversight.    He is utterly

reliable.    So, Doctor Jain is the perfect person, who we are

very fortunate to have heard from him in this matter.

        Let me turn to Prosecution Exhibit number 7, which is the

first test of the Accused’s urine.     And this is a perfect

litigation package. Prosecution Exhibit number 7, shows that 22,

excuse me, 200 samples were tested.    Only the Accused showed up

with cocaine in it.    Another sample was taken from the original

bottle.    A whole different aliquot was poured and it was

actually put into a whole different machine.    The testing was

performed, and it again showed up BZE, just the same amount of

benzoylecgonine.    Why is it that we’re testing for

benzoylecgonine?    Well, it’s the smart and scientifically sound

thing to do.    You’ll recall that during the defense’s opening,



                                  27
United States v. Fletcher, No. 04-0465/AF

he said that they don’t even test for cocaine.   Aren’t you glad?

If for example, cocaine were to be flying through the

atmosphere, which we know it doesn’t anymore than cyanide does

and we’re all still breathing, then fine, you know, we’re not

testing for cocaine.   Why?   Because the human body doesn’t

excrete cocaine.   It puts out the metabolite for it.   So we want

to know if the man’s body processed the cocaine, and yes, it

did.

       And you compared the immunoassay, which are the first two

tests and their quantities versus the gas chromatography mass

spectrometry, which will test only for BZE, and you can see that

he had the processed metabolite of cocaine in his urine, not

cocaine.   Very, very reliable, and of course I’ve come to the

last part of the first test which is the gas chromatography and

mass spectrometry portion which quantifies his urine at 208

nanograms per milliliter, twice the cut off limit.   The cut off

limit, what does it mean? You can’t pick it up from the

atmosphere.   You can’t walk by a guy cracking smoke [sic].    You

can’t even dip your hands in cocoa paste even if you are a nail

biter, even if you do have cuts in your hands, it won’t go to a

hundred, let alone 208.   So, we know that that was from an

amount that’s consistent with recreational use, having fun and

partying on drugs. And Doctor Jain has testified for us, that if

the sample was given on a Monday, it is consistent with him



                                 28
United States v. Fletcher, No. 04-0465/AF

having used it over the weekend, Friday night, Saturday night.

It is in fact, what we told you from the beginning, the urine

tells on the Accused’s use of cocaine.

        Now, the defense would like you to think about log

discrepancies.    Okay, let’s talk about lab discrepancies.     And

the lab discrepancies aren’t scary.     They’re actually very

comforting. They do in fact show us how incredibly good the lab

is.   They have a whole bunch of checks and balances and they

work.    And they showed us that they work.   There are internal

standards.    There are quality controls. There is quality

assurance.    There is blind quality controls.   And there are

external quality controls, i.e., the samples sent in disguised

as members’ samples.    And they all test out exactly right.

        Now the defense has pointed to the lab discrepancy reports.

Let’s talk about those.    And I would point you towards when we

were talking about and going over actually and in my redirect,

what lab discrepancy reports truly are.     And if you look at

Prosecution Exhibit number 8, on page 25, when the internal

standard didn’t have an exact high peak on a water blank, that’s

an internal standard discrepancy.      It’s great.   It shows us that

the machine is working.    And even if it isn’t exactly perfect,

which Doctor Jain said it’s forensically important, he wouldn’t

have done it over again.    But the lab, hey, they’re going to do




                                  29
United States v. Fletcher, No. 04-0465/AF

it over again.    How many times do things like that happen a

month at the laboratory?    Well, we talked about it and we

revealed the numbers.    About 12 in April and 18 or so in May of

2001.    And we know that they test 30,000 samples per month.     You

do the math.    It’s about .05 percent of discrepancies like that,

internal standards, calibration off.       And we don’t even go

forward and test it if the calibration isn’t perfect.       How would

you know the calibration was perfect? It’s in the reports for

that machine, for that test for that day for his sample.       It’s

comforting.

        Now, how do you know you’ve got everything to do with the

Accused’s sample?    Well, again, Prosecution Exhibit number 8,

even when the printer didn’t print out the first page cause

there was some sort of a problem with the printer, you’re going

to have to suffer through looking at starting the printer over

again.    And they include that.   Paperwork thrown away. Does it

make any difference if we would have thrown away that paperwork?

Well, now it’s included for you.        Even a reprint, just because

the first page didn’t come out.     It’s unassailable.

        Now, Greystone’s report, and that’s amusing, because when

you actually heard it for the first time from the defense it

sounded rather spook-tacular, but it’s not.       What were the

problems?    Okay, have you ever had an opportunity to have an




                                   30
United States v. Fletcher, No. 04-0465/AF

inspection in your unit?    Even if it’s tip, tip top, the people

who come through and inspect have got to find something, they’ve

got to.    Why are they doing an inspection if they don’t really

look for something?    What do we have in the Greystone report?

Inconspicuously posted, set of people who are allowed in the

room.    Well, we know that there 80 people who work at the lab.

Each people [sic] have to do a card swipe to get into each

particular section.    And it only works by the hours.    So if they

were to come back after close of business, they don’t get to get

in.   Conspicuously posted, and of course let’s shine the true

light of what that really means.       The elevator permit wasn’t

posted right by the door.    It was posted some other place.

Okay, the equivalent of sign in logs not completely filled out.

You ever had two people come to your unit, you put the names

down, but they’re both from the same location and they have the

same phone number, so you draw a line and do dittos.      They don’t

accept that there.    So, you get written up.    A secondary alarm

system, after the ones that we talked about, not responded to

when it went off in the middle of the day.      Okay, and that’s

what they got for the whole report.      Excellent.

        Picking on the lab employees for stuff like 1998 problems

with chain of custody annotations with Mr. Colunga was cheap, it

was cheap.    There’s nothing wrong with the chain of custody on

the Accused’s sample.    And really there was nothing wrong back



                                  31
United States v. Fletcher, No. 04-0465/AF

in ‘98, but he wasn’t too swift with the paperwork.    That was a

long time ago.

     Tube swapping, it’s a rather sexy term isn’t it?     It could

get your attention at the beginning?   Nonsense.    We know that

the Accused’s tube can’t be swapped because a scanner from the

machine will pick it up.    It’s bar coded like the supermarket.

And you can check everywhere yourselves.    Tube swapping doesn’t

happen.   But you know it isn’t going to happen because it would

say so when a water blank shows up glowing with cocaine and the

Accused’s shows up looking like water.   Of course, it didn’t

happen.   Sometimes when it’s fed into a machine.    But the

internal standards and quality controls are in place.    At the

hospital here at the base, has anybody ever been late to work

there?    Has anybody ever gotten a letter of reprimand for

financials or whatever or anybody ever dropped a tube there?

Does that mean that you wouldn’t go and get your teeth clean and

trust that they’re clean.   This is a lot simpler.    There is no

human error once you feed it into the machine.     These machines

are properly calibrated every time.    There’s every possible

control on them.   Their error rates are miniscule.   They’ve got

water blanks, and the gas chromatography mass spectrometry are

new machines, state of the art, and gas chromatography is the

gold standard.   We’ve got the best and the newest.




                                 32
United States v. Fletcher, No. 04-0465/AF

        And the lab is starving for work.    They’re not overworked

and rushing to get this done.    They’ve done a magnificent job.

Prosecution Exhibit number 8, same, same, except for we’ve got

that water blank, a little bit of a flat peak, but starts over

again on that run and that’s of course what they do when an

internal standard is off, they start over and do a new one.       And

of course, the printer page went out.       That’s not very

impressive.    The results are fabulous.    And they’re what we’d

expect from that lab and their exacting forensic standards.

Now, the Accused tested positive for cocaine metabolite in his

sample.

        And we don’t know, we’ve never presented who it was that he

was using with; how much he bought it for or how much he was

using, or whether he was having a good time when he was getting

high.    We don’t know.   But the law does in fact allow you to

infer that he was using it knowingly. That’s the law, you can do

that.    And it makes sense if you think about it, because folks

use drugs in private.     They’re not going to do it at the unit.

He’s not going to show up at the office and stick something up

his nose or light up a crack pipe.     He’s not going to do it at

the office or do it in public.    Any potential witnesses for this

are probably other drug users themselves and are arguably in

hiding distancing themselves from him as he goes through this,

whoever his dealer is.    Why should you make this inference in



                                  33
United States v. Fletcher, No. 04-0465/AF

this case though, and that’s where we’re going to ask you to

apply good old fashion common sense.

     Taking a look, what alternates would the defense have you

believe, well for goodness sake, that he ate hundreds and

thousands of dollar bills and metabolized them all about an hour

before he took his urine sample; right.     At 8:30 -- at 9:30

a.m., in the morning, he spend the wee hours munching dollar

bills, no.    Cocaine in the air at Cape Canaveral, in his home,

in his car.   Well, we know that doesn’t even work anyway.    The

pizza guy took his hard earned pizza delivery money and

sprinkled it on his pizza?   Fiction, fiction.    How about that

hand washing thing that they tried to perpetrate on you?     Hand

washing, it’s not going to skew it to a positive result if

somebody has spiked their hands.      It’s going to skew it for a

negative result.

     Now, we know that Mr. Varoz tells everyone, including the

Accused, wash your hands with just water.     The fact that the

Accused may or may not have done that, does or doesn’t remember,

doesn’t go in his favor if he chooses not to wash his hands and

follow the rules before he gives his urine sample.     Now, not to

be crude, but you gentlemen have the advantage over us.     You’ve

got the opportunity and equipment to aim right in the bottle and

not even go on your hands.   Women, not such a good luxury.      We




                                 34
United States v. Fletcher, No. 04-0465/AF

don’t stand as good a chance.    Gender bias in favor of the

Accused’s sample.    Don’t give him the benefit of that doubt.

       Now, the argument of cocaine falling from the ceiling and

going into the -- or from his clothes even, if he has cocaine on

this clothes, going into the sample and then somehow 100 percent

metabolizing for BZE is preposterous considering the fact that

he isn’t old enough to make the alkaline urine -- that the

conditions were not such that a hot temperature to cook it, and

it happened twice.   Did cocaine actually fall from the ceiling,

from the Patrick bathroom as well as from our laboratory here,

or excuse me, as well as from the bathroom up at the Cape,

another fiction. That thing about well, you could have been

exposed to a tiny amount and it just metabolized, or entered the

urine and suddenly, you know, at the exact right time you give

the urine in the cup to reach 202 and 136 [sic] two weeks in a

row.   Hmm, no, not at all, it’s ridiculous. You know what it is,

it’s as stupid as a teenager coming to you and saying dad, I got

pregnant from a toilet seat at a gas station.   And then coming

around to you later and then saying the same thing again.      If

you’re not convinced from the first urinalysis, how about by the

second?   Do you need a third?   Do you need a fourth?   A dozen,

do we pee him every two weeks and keep testing?   No.




                                 35
United States v. Fletcher, No. 04-0465/AF

       Now, we’ve seen some nice people come in and testify on his

behalf, and he’s a good worker.      And I’m not taking anything

away from his family or his church or his duty performance.        And

the Accused is probably a nice person.      But nice persons [sic]

can use drugs.    Church goers can use drugs.    And people can be

other than what they present themselves to be at work and on

Sunday mornings.   All the times that he was possible to do these

things, unaccounted for.

       You know, the guy knew since the 24th of April that he was

hot for urinalysis.   He’s had the opportunity to reconstruct and

when he testifies to you “I don’t know.”      Where was he? Why’d

you take leave?    “I don’t know.”     How reliable, how believable

and credible is that.   Are we to believe that he didn’t check it

out?   We get 30 days of leave a year. We use them very

judiciously, especially when we’re coming around to retirement.

We want to have a big blowout of time at the end where you get

terminal leave.    And you get paid.    I don’t know what I did with

my leave. I don’t think so.

       Should we trust him?   Well, let’s look back on one of the

most telling factors about who he really is.      He sure did give a

nice speech.   It’s almost seemed genuine, but he didn’t know

that I had on my desk under the paperwork, researched back to

1983, and discovered that he had used marijuana.      He didn’t know




                                  36
United States v. Fletcher, No. 04-0465/AF

I had that.   So when he stood up there and he sat down and he

just looked you all right straight in the face with the most

integrity appearance he could muster and said, “I have never

used drugs and I never will.”   You really want to go for it.

Fiction, and I knew it. Why? Because it’s in his paperwork, but

he didn’t know that I knew.   And he didn’t know that I would

tell him.

     Now, I went a long time cross examining him, gave him the

opportunity to have integrity or to make another fiction for

you, all the way through at the very end of my cross

examination, I asked him about why?   And his excuse showed that

he had no integrity. He could have come forward and said, look

it was a long time ago.   And I just didn’t think you’d find out

about it, and it really shouldn’t matter because I was a

teenager.   Ha -- he said I thought the defense counsel was

asking me about the military only.    And if that were true, then

his answer should have been, while in the military I have never

used drugs.   And while in the military I never will. Nuh uh,

that’s not what he said. His impression wasn’t impressive and a

complete fiction. And it shows how he tricks all of these other

nice people who came in to say he’s a good guy.

     Now, let’s go back and reconstruct, what was the defense

counsel’s question.   The third time he asked it, I didn’t even




                                37
United States v. Fletcher, No. 04-0465/AF

object asked and answered, let’s see what happened.      Sergeant

Fletcher between the 1st of April and the 24th of April did you

knowingly use cocaine?     That was the question.   His answer, I

did not.    It was designed to build credibility with you all.

Okay, but there are other indicators into his lack of

credibility and it’s not too bad to deal with just on it’s own.

How about the joke, I’ve never opened my personal emails,

because right then I was working in the orderly room.      Oh yeah,

when have you been in the orderly room since?       January, he’s

trying to pass it off that he doesn’t check his emails since

January.    Nuh uh, is that actually possible? Well the witnesses,

his friends say not.     We all know that we’re networked.    You can

check your email even if you’re not on your own computer.

        How about with all those extra taskings he was trying to

impress you with, he doesn’t check his email?       Or how about,

yeah, get this one, I don’t know where I took leave to.       There’s

another indicator.      Do you know where you took leave to this

year?    Sure you do.   Last year, probably.   The year before,

likely.    Would you be darn good and certain where you took leave

to if your urinalysis had come up positive?     Absolutely.   He’s

got zero integrity and he’s telling us that he didn’t knowingly

use cocaine is utterly unbelievable.




                                   38
United States v. Fletcher, No. 04-0465/AF

        Well, how about the idea of well, I got, he might have used

the wife’s prescriptions -- for arthritis meds? For back pain --

nah uh.    We know what the process is if you do something like

that.    A guy has a medical issue, uses his wife’s scrip, tests

positive for something.    Well, they don’t give out prescriptions

for cocaine.    They got this laboratory -- or at this base here,

but let’s say that even if something like that had happened in

the past, what’s the process?    They guy says okay, this is

probably where I got it from, and we investigate and drop the

charges, and admonish him for using somebody else’s scrip.

That’s what you do.    You don’t take him to court.   And it’s

funny that it just comes up here where the wife who loves him

very much, would very much like to have his retirement.     And she

doesn’t remember anything either.      As Doctor Jain told us, only

cocaine yields cocaine results. Not Solarcane or Lanacane or

Novocain or Coca-Cola or anything to do with coffee or caffeine

or anything other than coke.

        Okay, does his religion hide him?   Well, no, he had those

beliefs since he was a child and he was also in Junior ROTC, in

high school that didn’t stop him from using drugs back in high

school.    Is a religion an indicator of law abidingness?   Is it

okay to play faith for a get out of jail free card -- nah uh. Do

people even with true faith make criminal mistakes?      Do they or

they or criminal actions, do they use drugs?     Yeah.   Do they



                                  39
United States v. Fletcher, No. 04-0465/AF

commit adultery on their wives?    Ask Jessie Jackson about his

two year old daughter.    Ask Jerry Falwell about the hooker that

he got caught with having intercourse with in a car in Palm

Springs.    Jim Bakker cheating on his taxes.   I challenge you in

findings to come up with the rest.     I made a huge list but I

don’t have time to go over them.

        Is the fact that he’s done good work mean that he can’t use

cocaine, nah uh.    Dennis Quaid, prolific actor, needed inpatient

treatment.    Friends, Matthew Perry, fabulous performer, shows up

every week.    Had to go to inpatient treatment for drugs. How

about this one, Robert Downey, Jr., wins an Emmy for the

performances that he had during the time with which he was

actually being arrested, charged and showing up positive for

having used cocaine.    Sure, you can function, as Doctor Jain

said.    You can use it in the morning and you won’t know by your

testimony in the afternoon if the man sitting next to you could

have used it last night and you wouldn’t know today.    Besides

the Accused’s samples are consistent with weekend use, not being

buzzed in the office.

        We gave you various calendars, things to think over and as

far as whether or not he was in fact trying to avoid the

urinalysis, sure he was.    Sure he was.   And why wouldn’t he?

He’s got a cocaine problem and it’s going to show up in his




                                  40
United States v. Fletcher, No. 04-0465/AF

urine.   Sure.   And that’s where the defense exhibits A, B, C, D,

E, whatever, A through D come in.     And I was glad that this

hearsay was admitted, that you could take a look at it. Because

it shows that as of the 22nd, Mr. Varoz had selected the Accused

and he didn’t test until the 9th. Some of it, I would ask you

not to consider, okay.    March 30th, please don’t hold that one

against the Accused.   It appears strongly to be a unit sweep.

And we don’t think that he tried to avoid a unit sweep.    It

wasn’t his unit. So don’t hold that one against him. But let’s

look at the 26th, and the 28th and the times that he took leave,

not a bad idea.   And just go get yourself into class.   And

you’re home free.   He was awfully close in the science.   One

more urination cycle and it would have been out of his system.

     It was his time to get caught.     And it’s now time to

convict.   He clearly is a weekend cocaine user, on divers

occasions.   There is no way that that second use of cocaine, or

that second urinalysis could have come from the one that began

or that was taken on the 9th of April.    He is in fact guilty of

divers uses of cocaine.   The system has worked exactly as

planned.   And we ask you to find him guilty as charged.




                                 41
United States v. Fletcher, No. 04-0465/AF

                  REBUTTAL ARGUMENT BY THE GOVERNMENT

     CTC:    Well, we sure do have different styles.    And I think

it actually is going to play for once in the case.      I will not

shout at you.    I will reason with you.   I will present evidence

and what’s fair.    I ask you to consider that.    And in the

overwhelming light of what you know now, the defense’s shouting

fails and here’s why.    Yes, we do have to prove that he

knowingly and consciously used drugs.      But you can infer that in

the absence of evidence to the contrary.     What is he going to do

about those two positive urinalyses?    Nothing.   Dad, I got

pregnant from a toilet seat, twice.    No, way.    Now, whether or

not he was selected and he read his email is almost academic.

Because it’s so clear from the urinalyses that he was doing it

over and over.    But the emails and whether or not he knows, is

very clear, he was dodging the test.    And he was dodging it

because he knew it was in his urine.    He dodged it on the 26th,

dodged it on the 28th and took a class for the next week.       He

was good to go.    Of course, he knew that that was his duty and

of course he knew that his first sergeant wasn’t going to be

there that week.    Now the defense’s attempt at persuading you by

saying, “Hey, if he knew he was going to take a test, well then,

he knew that he knew he had a bullet with his name on it.       And

he wouldn’t have done cocaine.”    That’s why it’s illegal.     It’s

addictive.   And it’s a strong addiction.    And it’s something



                                  42
United States v. Fletcher, No. 04-0465/AF

that once you’ve gotten involved in it, you like it in your life

and that’s where Sergeant Fletcher was at the time.      And he

thinks he’s a pretty smart fellow, Sergeant Fletcher does.         He’s

gotten some real positive feedback in his life about how smart

he is.   So he thought he knew the test and he knew how to beat

it.    Except for he miscalculating it by one urination.    Why did

he consent?    Well, he thought it was going to be negative.       It’s

Tuesday, it should have been out by then, unless he was doing it

on Saturday night or a big batch on Friday.       Lab errors and

mistakes, Doctor Jain, a cheerleader for Brooks.      Hah, Ha, Ha.

That’s rich.   Doctor Jain is involved in inspecting the lab.

He’s one the folks who look into it to see, and mark them down

when their naughty.   When they’re doing the inspections for

whether or not there’s QCs or whether or not there’s

conspicuously posted who gets in and who gets out signs.      Now

the tracking numbers changing from 2 to 7, was it caught at the

Brooks lab?    I don’t know.   Do you care, no.   If that’s the best

they can point to, it’s a pretty super test.      Doesn’t shake

anyone’s confidence in sending their urine sample over.      You

know that the lab tests, and I’m showing you Prosecution Exhibit

5 for example, the lab doesn’t test for the base’s number of

228.   The lab tests from their bar codes and their scanner.       So

what’s on the bottle, other than the Accused’s social, isn’t

what the lab goes by.   It makes pretty good sense that they



                                  43
United States v. Fletcher, No. 04-0465/AF

wouldn’t catch that.        If they didn’t, they didn’t.   The Basalt

Study is just my favorite.       I have a package of Sweet’N Low

here.    I’m going to dump it all out.       Now, we’re talking about

in the Basalt study, 1/20th of a package of Sweet’N Low, so

let’s see, oops I dropped some, a little tiny bit.         It’s back on

now.    Let’s see what happens when we take a 20th from the

package of Sweet’N Low --

        CDC:   Your Honor, I’m going to object regarding this, how

that she’s going to divide this into 1/20th.

        MJ:    Sustained.

        CTC:   Well, member’s, you’ve got Sweet’N Low.      You can

think about it.      You can take 1/20th except for don’t take

1/10th of it and line it out and see if it doesn’t look just

like Miami Vice.      Why would you take a 1/10th of it, because

street purity is only about 50 percent.         It looks exactly like

what a drug user would stick up his nose.         Under the Basalt

Study it wasn’t even about that.          The Basalt Study was about

catching and orally ingested cocaine in urine, and how do we

know that?      Because Doctor Jain and Doctor Basalt worked

together.      And they are professional associates and well

acquainted with all the procedures.         And that’s on the test.

No, you can’t take that much orally even dissolved in a liquid

and not feel it.




                                     44
United States v. Fletcher, No. 04-0465/AF

     CDC:   Objection, Your Honor.       Facts not in evidence.

     MJ:    Overruled.

     CTC:   You get a numb mouth.       You get a racing heart.    You

get increased alertness.     And that is what you get and that is

what Doctor Jain testified to.     And that’s just a little amount.

But certainly, if you do the test you’ll see.       Are you scared of

your pizza delivery guy now?     I don’t think so.    Drug users like

their drugs.    They’re not going to be the cocaine fairy jumping

around giving it away as an Easter gift.       Who’s going to give

away cocaine?   It’s contraband.      It’s hard to come by.   It’s a

very expensive item, and it’s very dangerous to get it from the

kind of people who sell it.     They don’t give that away.    Plus,

it’s addictive, so you want to hang onto it.       Twice, the cocaine

fairy visits him twice?     No way.     Now the part about the Accused

lying is really funny because the defense attorney who is the

one with the overpowering and yelling and cutting people off

cross examinations and the wild argument that he just gave

you --

     MJ:    Five minutes.

     CTC:   -- okay.     He’s the one that could have scared a

witness and freaked them out.     Me, I won’t cut them off.       I’ll

apologize if I do.




                                   45
United States v. Fletcher, No. 04-0465/AF

        CDC:    Objection, Your Honor, improper argument.

        MJ:    Sustained.    Don’t comment on the character of the

defense attorney.

        CTC:    I’m commenting -- yes, Your Honor, I’m commenting on

myself though, sir.

        MJ:    Just comply.

        CTC:    Well, ask yourselves, do I scare you?     Am I going

to --

        CDC:    Again, objection, Your Honor.

        MJ:    Overruled.

        CTC:    Will I cause you to lie?

        MJ:    Sustained.

        CTC:    Now --

        MJ:    Hold on a second.    I’m sustaining the objection.

We’re not trying the character of counsel.

        CTC:    Yes, Your Honor.

        MJ:    Talk about the evidence.

        CTC:    Well, and then when the Accused gets up on the stand

and he lies who in fact was asking him the question?         His own

lawyer.       Not me.    And that was the first lie.   Well, bladder and

kidney problems, that’s another phony distraction.         Colonel



                                      46
United States v. Fletcher, No. 04-0465/AF

Torrent’s stipulation of expected testimony shows that there was

no way that any medications or bladder and kidney problems could

possibly have caused a positive result.    Like Doctor Jain

testified, cocaine tests for cocaine metabolites, nothing else.

And when you come down to the end of this case, there’s just

nothing that the defense can tell you, there’s nothing that I

can tell you that the evidence doesn’t already show you.      If you

take urine from the Accused on a Monday or a Tuesday, it’s going

to show up positive for cocaine.     And you need to find him

guilty as charged.   And we ask you to do just that.   Thank you.




                                47
United States v. Fletcher, No. 04-0465/AF


     CRAWFORD, Judge (dissenting):

     While I agree that trial counsel’s argument was at times

improper and unprofessional, there is nothing to indicate that

any such error materially prejudiced Appellant’s substantial

rights.   Thus, whether or not defense counsel’s objections are

preserved for appeal, I agree with the United States Air Force

Court of Criminal Appeals (CCA) that “[v]iewed in the context of

the case as a whole, including the strength of the government’s

evidence . . . the prosecution argument did not ‘undermine the

fundamental fairness of the trial and contribute to a

miscarriage of justice.’”   United States v. Fletcher, No. ACM

34945, slip op. at 8 (A.F. Ct. Crim. App. Feb. 27, 2004).    For

this reason, I find that any improprieties by trial counsel in

this case were harmless, and I therefore respectfully dissent.

                   Objections by Defense Counsel

     As noted, defense counsel remained silent during the

Government’s primary findings argument, and made only two

objections relevant here during the Government’s rebuttal.    The

military judge promptly sustained both objections, and

admonished trial counsel not to remark further on defense

counsel’s character.   There were no objections to the remaining

three categories of alleged prosecutorial misconduct.

     Significantly, this Court has previously noted that “‘the

lack of defense objection is relevant to a determination of
United States v. Fletcher, No. 04-0465/AF


prejudice’ because the lack of an objection ‘is some measure of

the minimal impact of a prosecutor's improper comment.’”     United

States v. Gilley, 

, 123 (C.A.A.F. 2001) (quoting

United States v. Carpenter, 

, 397 (C.A.A.F. 1999));

see also United States v. Doctor, 

, 135, 

, 261 (1956) (“It is a little difficult for us to find

misconduct which compels a reversal when it purportedly arises

out of an argument which had so little impact on defense counsel

that they sat silently by and failed to mention it . . . at the

time of trial.”).

     Here, aside from the probable minimal impact of trial

counsel’s remarks, defense counsel had independent reasons to

believe that any objections would be futile.   Trial counsel’s

references to religious figures, for example, were “fair

response” defense witness testimony concerning Appellant’s

affiliation with the Baptist church and his living a “Christian

life.”   Gilley, 56 M.J. at 120.   Other courts have found

harmless error under a theory of “invited response” where the

Government included religious statements in the closing

argument.   See, e.g., Boyd v. French, 

, 329 (4th

Cir. 1998) (biblical references by prosecution were invited by

appellant’s testimony concerning his salvation while in prison

awaiting trial, and statement that Satan beguiled him into

committing the murder); Fahy v. Horn, 

United States v. Fletcher, No. 04-0465/AF


14742, at *152, 

, at *53 (E.D. Pa. 2003)

(prosecutor’s statement that defendant was the “representative

of Satan who committed this act” was invited by defense

counsel’s remark that “[s]omeone, some representative of Lucifer

or Satan went into that house and did this unconscionable

deed.”).

                   Strength of the Government’s Case

     In finding plain error below, the majority assigns undue

significance to the Government’s findings argument, and not

enough weight to the trial as a whole.    Trial counsel’s

allegedly improper comments are limited to twenty-one pages of

the transcript, among what the majority characterizes as “an

otherwise long and uneventful trial.”    Whether or not eventful,

the CCA concluded -- and I agree -- that the Government’s case

against Appellant was strong.    Notwithstanding Appellant’s

efforts to attack the laboratory and the results of his two drug

tests, the CCA found:

     [T]he uncontroverted testimony of [Dr. Jain]
     established that the urine testing was done properly,
     that any mistakes attributable to the laboratory were
     minimal and did not impugn the reliability of the
     results, and that the two tests were sufficiently far
     apart so as to reflect two separate and distinct
     ingestions of cocaine.

Fletcher, No. ACM 34945, slip op. at 7.

     By contrast, Appellant’s innocent ingestion theory was

relatively weak.    The members could very reasonably have


                                   3
United States v. Fletcher, No. 04-0465/AF


dismissed Appellant’s suggestion that the cocaine he ingested

was placed in his food by a drug-handling chef:   “[I]s it so

preposterous that here in Cocoa Beach . . . a cook, a chef, a

bartender, the delivery person using cocaine . . . could be

using [it] on food preparation surfaces.    It could be in a bar

and people wiping it clean and it falling into glasses. . . .”

As the CCA noted, “appellant’s own testimony provided no reason

seriously to believe or even suspect that an unknowing ingestion

had occurred.”   Fletcher, No. ACM 34945, slip op. at 7.    We have

previously considered the plausibility of an appellant’s defense

theory in determining prejudice from error.   See e.g., United

States v. Walker, 

, 74 (C.A.A.F. 1995) (finding

“patently feeble” appellant’s innocent ingestion theory based on

“consumption of ‘crumb cake’ during a drinking party,” testimony

that “his lips were ‘numb and tingly,’ and the subsequent

discovery that a drug dealer attended the party.”); United

States v. Brooks, 

, 29 (C.M.A. 1988) (considering

appellant’s “weak” theory of the case and “implausible”

suggestion that the Army investigator’s confidential informant

planted evidence on him in determining harmlessness).

Appellant’s failure to seriously challenge the Government’s case

against him is relevant to my determination that he suffered no

material prejudice from trial counsel’s comments.




                                 4
United States v. Fletcher, No. 04-0465/AF


                      Limiting Instructions

    In addition to the strong case against Appellant, the

military judge took appropriate steps to limit any potential

harm resulting from trial counsel’s remarks.    After the findings

argument, the military judge instructed the members:   “Remember,

that the arguments of counsel are not evidence, but they may

assist you in forming your view of the evidence. . . .    It is

your own independent recollection of the evidence that you must

rely upon in deciding the facts in the case.”   Jurors generally,

and perhaps our “blue ribbon” military panels particularly, are

presumed to follow a military judge’s instructions.    Nothing

demonstrates to me that the members in this case were unwilling

to or incapable of understanding and complying with the

instruction above.

                           Plain Error

     Finally, for the same reasons that Appellant cannot show

material prejudice to his substantial rights under Article

59(a), Uniform Code of Military Justice, 10 U.S.C. § 859(a)

(2000), he cannot succeed on plain error.

     Before an appellate court can correct an error not
     raised at trial, there must be (1) “error,” (2) that
     is “plain,” and (3) that “affect[s] substantial
     rights.” If all three conditions are met, an
     appellate court may then exercise its discretion to
     notice a forfeited error, but only if (4) the error
     “seriously affect[s] the fairness, integrity, or
     public reputation of judicial proceedings.”



                                5
United States v. Fletcher, No. 04-0465/AF


United States v. Kho, 

, 65 (C.A.A.F. 2000) (Crawford,

C.J., concurring) (quoting Johnson v. United States, 

, 466-67 (1997)) (citation omitted).   As I stated in Kho, I

see no difference between an error that “materially prejudices

. . . substantial rights” under Article 59(a), and an error that

“affects substantial rights,” as contemplated in Johnson.    Kho,

54 M.J. at 66.   Therefore, the facts of Appellant’s case,

applied to the above test, do not require this Court to take

corrective action.   For these reasons, I respectfully dissent.




                                 6