UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

________________________

No. ACM 39815

________________________

UNITED STATES

Appellee

v.

Manuel PALACIOS CUETO

Airman First Class (E-3), U.S. Air Force, Appellant

________________________

Appeal from the United States Air Force Trial Judiciary

Decided 18 May 2021

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Military Judge: Matthew N. McCall.

Sentence: Sentence adjudged on 24 August 2019 by GCM convened at 

Hanscom Air Force Base, Massachusetts. Sentence entered by military 

judge on 15 October 2019: Bad-conduct discharge and reduction to E-1. 

For Appellant: Major Amanda E. Dermady, USAF.

For Appellee: Lieutenant Colonel Brian C. Mason, USAF; Lieutenant 

Colonel Matthew J. Neil, USAF; Major John P. Patera, USAF; Captain 

Cortland T. Bobczynski, USAF; Mary Ellen Payne, Esquire.

Before POSCH, RICHARDSON, and MEGINLEY, Appellate Military 

Judges.

Judge RICHARDSON delivered the opinion of the court, in which Senior 

Judge POSCH joined. Judge MEGINLEY filed a separate opinion dissenting in part and in the result.

________________________

This is an unpublished opinion and, as such, does not serve as 

precedent under AFCCA Rule of Practice and Procedure 30.4.

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United States v. Palacios Cueto, No. ACM 39815

2

RICHARDSON, Judge:

A general court-martial comprised of officer and enlisted members convicted Appellant, contrary to his pleas, of two specifications of abusive sexual 

contact in violation of Article 120, Uniform Code of Military Justice (UCMJ), 

10 U.S.C. § 920.1,2 The court-martial sentenced Appellant to a bad-conduct discharge, to perform hard labor without confinement for 90 days, and reduction 

to the grade of E-1. The convening authority disapproved the adjudged hard 

labor without confinement, and took no additional action on the sentence.3

Appellant raises eight issues on appeal: (1) whether his convictions for a 

kiss on the lips and a touch of the stomach are factually and legally sufficient; 

(2) whether his due process rights were violated when the Government argued 

the victim was incapable of consenting to a kiss due to impairment by alcohol 

when Appellant was charged with causing bodily harm; (3) whether the military judge erred by denying the panel members’ request to review Appellant’s 

statements to investigators; (4) whether the military judge erred by denying 

the Defense challenge for cause of a panel member; (5) whether Appellant’s 

trial defense counsel were ineffective; (6) whether trial counsel committed 

prosecutorial misconduct when stating that they represented “the pursuit of 

justice” and argued that justice would only be served if Appellant was convicted 

and adjudged a sufficient punishment; (7) whether the record of trial is incomplete; and (8) whether the cumulative-error doctrine requires relief. Issue (7) 

was resolved before Appellant submitted his reply brief.4 We have carefully 

considered issue (4) and find that it does not warrant further discussion or 

relief. See United States v. Matias, 25 M.J. 356, 361 (C.M.A. 1987). Based on 

 

1 All references in this opinion to the punitive articles of the Uniform Code of Military 

Justice (UCMJ) are to the Manual for Courts-Martial, United States (2016 ed.) (2016 

MCM). The charges and specifications were referred to trial after 1 January 2019; as

such, all other references to the UCMJ, Military Rules of Evidence, and Rules for 

Courts-Martial (R.C.M.) are to the Manual for Courts-Martial, United States (2019 

ed.). See Exec. Order 13,825, §§ 3 and 5, 83 Fed. Reg. 9889, 9890 (8 Mar. 2018).

2 Appellant was acquitted of one specification of sexual assault, also charged as a violation of Article 120, UCMJ. 

3 Consistent with our respective opinions in United States v. Barrick, No. ACM S32579, 

2020 CCA LEXIS 346 (A.F. Ct. Crim. App. 30 Sep. 2020) (unpub. op.), we find no error 

in the convening authority’s decision to “take no further action on the sentence in this 

case.”

4 We granted the Government’s motion to attach documents reflecting Appellant’s 

counsel’s receipt of items that had been missing from its copy of the record of trial. 
United States v. Palacios Cueto, No. ACM 39815

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our resolution of the remaining issues, we find no merit to issue (8).5 Finding

no error that has materially prejudiced Appellant’s substantial rights, we affirm the findings and sentence.

I. BACKGROUND

The conduct at issue in Appellant’s court-martial arose during several 

hours Appellant spent with MT over Memorial Day weekend in 2018.

Appellant and MT had known each other for about three months after 

meeting in their dorm building on Hanscom Air Force Base, Massachusetts. 

They both spoke Spanish and grew up outside the United States. They were 

older than most Airmen of their rank. MT often rejected Appellant’s invitations

to socialize with her, and they were not close friends. 

Over the long weekend, MT wanted to eat at a Honduran restaurant in 

Boston, about a 40-minute drive from the base. She invited Appellant because 

she wanted company, and she wanted someone who could parallel park her 

car. Appellant accepted and joined her on the outing. 

After dinner, they went briefly to one bar before going to another. At the 

second bar, MT consumed about five vodka drinks. They stayed at the second 

bar between two and four hours, until it closed. MT felt drunk at this point; 

Appellant may have had drinks at dinner and at a bar, but was not drunk. 

Appellant drove them back to base, and they decided to keep drinking. After 

arriving at their dorm, they went to their own rooms; MT changed into shorts,

and Appellant got a bottle of pisco.6 They met back up, and Appellant drove to 

the back of the “BX,” where they were “just hanging out” in the car. Next he

drove to the back of the Civil Engineer (CE) building and parked. MT sat on 

the roof of her car with her legs dangling through the sunroof. Appellant was 

passing MT pisco shots through the sunroof opening; MT drank five-to-six 

shots. MT did not know whether Appellant drank any of the pisco. At one point, 

Appellant rubbed MT’s legs, prompting MT to ask him why he was doing that. 

He responded that he “miss[ed] touching a woman.” MT told him to stop and 

he did. 

MT did not remember leaving the CE area and returning to her dorm. However, the dorm-building cameras captured Appellant and MT walking through 

the dayroom, continuing down the hallway to MT’s room, then entering MT’s 

 

5 We will set aside the findings or sentence, as appropriate, if the cumulative effect of 

all plain and preserved errors denied an appellant a fair trial. United States v. Pope, 

69 M.J. 328, 335 (C.A.A.F. 2011). “Assertions of error without merit are not sufficient 

to invoke this doctrine.” United States v. Gray, 51 M.J. 1, 61 (C.A.A.F. 1999). 

6 MT testified pisco is a hard liquor similar to vodka.
United States v. Palacios Cueto, No. ACM 39815

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room. Leading to the dayroom, the first video shows Appellant guiding MT forward, walking next to her with his hand on her back or shoulder and his other 

hand holding her hand (her arm was raised parallel to the ground). The video 

of the dayroom shows MT attempting to walk in front of Appellant to enter the 

main part of the dayroom instead of walking straight through, but Appellant 

stayed at her side, and she continued moving in the original direction. She 

stopped and bent over at the waist. It appeared she either needed Appellant’s

assistance to keep from falling over, or she was trying to get around and walk 

past him; a pillar obscures the view somewhat. Appellant helped MT stand 

upright again. MT moved past Appellant, continuing in the original direction, 

then fell over onto her back with her arms bent and hands up near her head. 

Appellant tripped over MT and fell to the ground face down, with his legs over 

MT’s torso. Appellant got up on his feet, but MT stayed motionless. Appellant 

adjusted a cross-body bag he was wearing, leaned over MT with his hands below MT’s armpits, and kissed her on the lips. MT then moved and pushed him 

away with her hands. Appellant helped MT to her feet. MT struggled to remain

standing as she was very unsteady on her feet. The pillar again obscures the 

view of what occurred at this point. Then they continued to walk through the 

dayroom. 

The second video shows Appellant and MT walking down the dorm hallway. 

Appellant was positioned behind MT, with his legs on either side of her legs. 

Appellant’s right arm was over her right shoulder and his left arm was holding 

her left arm, then shifted to around her torso. When they arrived at MT’s room, 

Appellant was still holding MT from behind and was leaning his head over her 

shoulder. MT leaned with both her hands against the door, then moved to the 

side, then moved again where she was facing the camera and can be seen looking through her purse. She turned towards the door, then turned again, away 

from the camera. During the two minutes they were outside her door, Appellant was either next to MT or directly behind and touching MT with his hands 

or body, sometimes with his head over her shoulder. Appellant apparently 

opened the door, and MT walked in, followed by Appellant. The time on the 

video was “07:29,” which was generally consistent with other evidence about 

the time that morning.

MT testified to her memory of the events captured on the videos. She recalled that she was trying to put her key in her door, and finally did. She remembered entering her dorm room, explaining, “[I]n my head – in the back of 

my head, I was by myself.” Regarding the earlier events, MT needed her 

memory refreshed. After the Government played the video recordings during 

her testimony, MT explained that she also remembered some of the dayroomportion of the evening. She testified she remembered Appellant kissing her on 

the lips, and that she did not consent. She said she was pulling away from him 

because she “didn’t want to get touched by him.” Unlike when she said no to 
United States v. Palacios Cueto, No. ACM 39815

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Appellant touching her legs in the car, she said she was too intoxicated to “defend” herself. She did not remember what happened behind the pillar, or being 

held by Appellant leading up to her room, even after seeing the video. 

MT testified Appellant had never been in her dorm room before, and that 

she thought she entered her room alone. She noticed Appellant was in her room 

when she was using the toilet: “I don’t know what he was trying to do, but he 

went inside my restroom while I was urinating, he . . . . saw me while I had my 

underwear down[,] . . . . [a]nd then he left.” She testified that she was very 

confused, and soon after using the toilet she went to the bed and lay down, still 

wearing her shirt, shorts, and underwear. She did not see him lying on the bed. 

MT testified the last thing she remembered feeling was being touched on her 

stomach, adding “[i]t was very, very blurry.”

MT’s next memory is several hours later, when she awoke to Appellant in 

her bed, dressed only in his underwear briefs. She confronted him about being 

in her room. She asked Appellant if he violated her, and he denied touching 

her. She also confronted him about walking in on her when she was on the

toilet, and did not accept his explanation that he was just checking to see that 

the door was locked. She told him to leave her room, and he did. The video 

shows Appellant walked shirtless from MT’s room back in the direction of the 

dayroom at “13:56” that afternoon. 

MT testified she felt disgusted, dirty, and used. She felt sharp pain in her 

vaginal area, a sensation that was not there the day before. Thinking Appellant had sexually assaulted her, MT went to his room to return his shirt and 

confront him. She told him she was in pain in her genital area, she “needed to 

get help because [she] felt destroyed as a person, like, broken,” and they “can’t 

be in the same place anymore.” Appellant denied that anything happened. MT 

directly asked Appellant whether he intended to have sex with her. MT testified as to Appellant’s response, “Yes, I intended having [sic] sex with you. But 

as soon as you passed out I said no, I’m not going to touch you anymore.” MT 

returned to her room. MT testified she vomited that day, sometime after she 

woke up and not before. 

Appellant sent MT broad, deep apologies via text message.7 For example, 

in one text he said to MT, “I do not expect that one day to another you will 

recover from this, forgive me,” and in another he said, “I truly regret this, I 

never meant to hurt you, I am sorry.” He also said she was “free to report” him 

and acknowledged his “mistake” but did not admit to any act in particular.

Appellant also sent MT information about the base Sexual Assault Response 

 

7 The texts were written in Spanish. Photos of the texts and a translation into English 

were entered into evidence. 
United States v. Palacios Cueto, No. ACM 39815

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Coordinator (SARC). MT described it as “this sexual assault picture of the

SARC numbers to call.” 

Appellant contacted his first sergeant to talk about what happened earlier 

that day. Appellant told him he had been out with a female friend the night 

before, drinking and hanging out in the dorms. The first sergeant testified,

“[Appellant] mentioned something about that they had been kissing.” Appellant said he helped her back to her room and went into the dorm bathroom to 

make sure the suite-mate door was locked. He also said she threw up, and he 

stayed to help clean the vomit. He said MT fell asleep as he continued to clean 

the vomit, then he got into bed with her and went to sleep. The first sergeant 

read Appellant his rights under Article 31, UCMJ, 10 U.S.C. § 831, from a card, 

in case Appellant was admitting to sexual assault. Appellant denied committing a sexual assault and “did not seem to want a lawyer.” The first sergeant 

thought Appellant wanted mentorship and was not admitting a crime. 

MT called the SARC the same day as the alleged offenses and went to speak 

with the SARC in person on the next duty day. After speaking to the SARC, 

MT went to the hospital where she underwent a sexual assault examination. 

The examination revealed some redness, or erythema, to part of the vagina, 

the posterior fourchette. The nurse who conducted the exam testified, “So usually you see redness when you have friction, or anything rubbing against that 

area. It’s the bottom entrance of the vagina. So it usually – it’s the most common site of injury of sexual assault patients.”8

AFOSI agents seized clothing MT and Appellant wore on the night in question, and sent it to the United States Army Criminal Investigations Laboratory 

(USACIL) for analysis. Mr. JF from USACIL analyzed the inside crotch area 

of the underwear each was wearing, as well as MT’s shorts. Mr. JF provided 

testimony about his findings after being accepted by the court as an expert in 

forensic biology and DNA examinations. His examination indicated Appellant’s DNA was on MT’s underwear and shorts, and MT’s DNA was on Appellant’s underwear. No sperm was detected. Mr. JF opined that MT’s and Appellant’s DNA recovered from the other person’s item of underwear came from a 

 

8 Trial defense counsel objected to a later question asking whether she formed an opinion as to what caused the redness in this case, which the military judge sustained. The 

military judge did not sua sponte tell the members to disregard her earlier testimony. 
United States v. Palacios Cueto, No. ACM 39815

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bodily fluid and not from touch.9 Mr. JF could not opine whether Appellant’s 

DNA on MT’s shorts could have come from a touch. Moreover, Mr. JF testified, 

“Given the evidence, it’s my opinion that some form of intimate contact would 

have to have occurred to deposit DNA inside the front crotch of the underwear.” 

He also opined that the presence of the DNA was the result of a primary and 

not a secondary transfer.10 The Defense’s DNA expert disagreed, opining a 

“long and vigorous . . . . secondary transfer could potentially result in a level of 

DNA that is in the realm of the amount we’re talking about here.”

II. DISCUSSION

A. Legal and Factual Sufficiency

Appellant asserts that the evidence for the two offenses of which he was 

convicted—kissing MT while she was on the dayroom floor causing bodily harm 

and touching her stomach while she was in her bed and incapable of consenting—was legally and factually insufficient. For both, Appellant asserts that 

MT was not a credible witness. Appellant argues that the Government did not 

meet its burden of disproving mistake of fact as to consent to the kiss, suggesting he reasonably believed she consented to this sexual act. Appellant argues 

an opposing theory regarding the stomach touching: that the Government did 

not meet its burden of proving Appellant had the intent to gratify his sexual 

desire. We are not persuaded and find Appellant’s convictions both legally and 

factually sufficient. 

1. Law

We review issues of legal and factual sufficiency de novo. United States v. 

Washington, 57 M.J. 394, 399 (C.A.A.F. 2002) (citation omitted). Our assessment of legal and factual sufficiency is limited to the evidence produced at trial. 

United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993) (citations omitted). 

“The test for legal sufficiency is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” United 

States v. Robinson, 77 M.J. 294, 297–98 (C.A.A.F. 2018) (quoting United States 

 

9 Mr. JF used the terms “bodily fluid” and “biological fluid” interchangeably. He described kinds of bodily fluids, to include blood, seminal and vaginal fluid, nasal secretions, sweat, and breast milk, and stated “[t]ypically, biological fluids contain more 

DNA than just random touch samples.”

10 The expert testified about transfers using the example of shaking another person’s 

hand. The handshake between two people (A and B) is a primary transfer of the other 

person’s DNA. When A shakes C’s hand, recovery of B’s DNA on C’s hand would be the 

result of a secondary transfer through A. 
United States v. Palacios Cueto, No. ACM 39815

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v. Rosario, 76 M.J. 114, 117 (C.A.A.F. 2017)). “The term reasonable doubt, however, does not mean that the evidence must be free from conflict.” United States 

v. Wheeler, 76 M.J. 564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. 

Lips, 22 M.J. 679, 684 (A.F.C.M.R. 1986)), aff’d, 77 M.J. 289 (C.A.A.F. 2018). 

“[I]n resolving questions of legal sufficiency, we are bound to draw every reasonable inference from the evidence of record in favor of the prosecution.” 

United States v. Barner, 56 M.J. 131, 134 (C.A.A.F. 2001) (citations omitted).

As a result, “[t]he standard for legal sufficiency involves a very low threshold 

to sustain a conviction.” United States v. King, 78 M.J. 218, 221 (C.A.A.F. 2019) 

(alteration in original) (citation omitted). The “government is free to meet its 

burden of proof with circumstantial evidence.” King, 78 M.J. at 221 (citations 

omitted). 

The test for factual sufficiency is “whether, after weighing the evidence in 

the record of trial and making allowances for not having personally observed 

the witnesses, [we are ourselves] convinced of the [appellant]’s guilt beyond a 

reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A. 1987). “In 

conducting this unique appellate role, we take ‘a fresh, impartial look at the 

evidence,’ applying ‘neither a presumption of innocence nor a presumption of 

guilt’ to ‘make [our] own independent determination as to whether the evidence 

constitutes proof of each required element beyond a reasonable doubt.’” 

Wheeler, 76 M.J. at 568 (alteration in original) (quoting Washington, 57 M.J. 

at 399). 

2. Analysis

a. Abusive Sexual Contact – Bodily Harm

The elements of the Specification of the Additional Charge alleging abusive 

sexual contact in violation of Article 120, UCMJ, of which Appellant was convicted include: (1) that Appellant committed sexual contact upon MT by touching MT’s lips and mouth with his lips and mouth; (2) that Appellant did so by 

causing bodily harm to MT; and (3) that Appellant did so with the intent to 

gratify his sexual desire. See Manual for Courts-Martial, United States (2016 

ed.) (MCM), pt. IV, ¶ 45.b.(8)(b). “Bodily harm” includes “any nonconsensual 

sexual act or nonconsensual sexual contact.” MCM, pt. IV, ¶ 45.a.(g)(3). “The 

term ‘consent’ means a freely given agreement to the conduct at issue by a 

competent person.” MCM, pt. IV, ¶ 45.a.(g)(8)(A). An “incompetent person cannot consent.” MCM, pt. IV, ¶ 45.a.(g)(8)(B).

The affirmative defense of mistake of fact as to consent requires that an 

accused, because of ignorance or mistake, incorrectly believe that another consented to the sexual contact. See Rule for Courts-Martial (R.C.M.) 916(j)(1). In 

order to rely on this defense, the accused’s belief must be honest and reasonable. See id.; United States v. Jones, 49 M.J. 85, 91 (C.A.A.F. 1998) (quoting 
United States v. Palacios Cueto, No. ACM 39815

9

United States v. Willis, 41 M.J. 435, 438 (C.A.A.F. 1995)); United States v. 

Gans, No. ACM 39321, 2019 CCA LEXIS 162, at *14 (A.F. Ct. Crim. App. 11 

Apr. 2019) (unpub. op.). Once raised, the Government bears the burden to 

prove beyond a reasonable doubt that the defense does not exist. R.C.M. 

916(b)(1); see United States v. McDonald, 78 M.J. 376, 379 (C.A.A.F. 2019). The 

“burden is on the actor to obtain consent, rather than the victim to manifest a 

lack of consent.” McDonald, 78 M.J. at 381. An “[a]ppellant’s actions could only 

be considered innocent if he had formed a reasonable belief that he had obtained consent. The Government only need[s] to prove that he had not done so 

to eliminate the mistake of fact defense.” Id.

The Government’s primary evidence proving sexual contact by bodily harm 

was the video recording of the offense. A reasonable finding from viewing the 

video is Appellant lowered himself above MT while she was lying motionless 

on the dayroom floor and kissed MT on her lips, and MT responded by pushing 

him away with her hands. Additionally, Appellant told his first sergeant he 

kissed MT. MT testified she did not consent to this kiss, and the evidence indicates MT did not demonstrate a desire to be kissed. Similarly, the evidence 

indicates Appellant would not have reasonably thought he obtained MT’s consent to kiss her. Finally, Appellant’s comments to MT that he missed touching 

a woman and that he had intended to have sex with her that day are circumstantial evidence of his intent at the time of the kiss. A reasonable inference 

from the video of the offense, the video of them outside her room, and other 

evidence admitted is that Appellant kissed MT to gratify his own sexual desire

and did so without her consent. 

b. Abusive Sexual Contact – Incapable of Consenting

The elements of Specification 2 of the Charge alleging abusive sexual contact in violation of Article 120, UCMJ, for which Appellant was convicted include: (1) that Appellant committed sexual contact upon MT by touching MT’s 

stomach with his hand;11 (2) that MT was incapable of consenting to the sexual 

contact due to impairment by alcohol; (3) that Appellant knew or reasonably 

should have known of MT’s impairment; and (4) that Appellant did so with the 

intent to gratify his sexual desire. See MCM, pt. IV, ¶ 45.b.(8)(f). The touching 

in a sexual contact “may encompass both body-to-body contact and object-tobody contact.” United States v. Schloff, 74 M.J. 312, 314 (C.A.A.F. 2015). 

The Government’s primary evidence proving abusive sexual contact upon 

a person incapable of consenting due to intoxication by alcohol was MT’s testimony and the video recording of Appellant and MT at the dorm that morning. 

 

11 The military judge granted the Defense’s motion pursuant to R.C.M. 917, finding 

Appellant not guilty of the words “and [MT’s] thighs” as alleged in this specification. 
United States v. Palacios Cueto, No. ACM 39815

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The testimony at trial about how much alcohol MT and Appellant drank leading up to the offenses can reasonably lead to a finding that Appellant was not 

intoxicated, and he knew that MT was very intoxicated. The video shows MT 

stumbling as she walked through her dorm, and Appellant trying to hold her 

up as he walked directly behind her. The video also shows MT—with Appellant 

still behind her—standing at the door to her room searching through her purse 

for about two minutes to find her key and enter her room. MT testified she did 

not know that Appellant followed her into her room until she saw him looking 

at her while she was on the toilet. A reasonable finding from the evidence is 

that MT, due to her intoxication, did not have the physical and mental ability 

to consent12 to Appellant touching her stomach a short time later when she lay 

in bed, and Appellant knew or should have known of her condition.

The most telling evidence of Appellant’s intent to gratify his sexual desire

is his own words to MT about his mindset at the time he was touching her. 

Immediately before she passed out on her bed, MT remembered Appellant

touching her stomach. MT testified Appellant later admitted to her he wanted

to have sex with her and stopped touching her when she fell asleep. Additionally, evidence of Appellant’s DNA on the inside crotch of MT’s underwear and 

shorts, as well as Mr. JF’s opinion that some form of direct intimate contact 

occurred, supports a reasonable conclusion that Appellant touched other parts 

of MT that day, and his contact with her was sexual.

Although Appellant was charged with touching MT “with his hand,” the 

Government did not provide direct evidence that Appellant used his hand as 

opposed to another part of his body or an object. However, based on the circumstantial evidence presented, the court members reasonably could find Appellant guilty as charged. See R.C.M. 918(c) (“Findings may be based on direct or 

circumstantial evidence.”) The military judge accurately advised the members 

they are “expected to use [their] own common sense and knowledge of human 

nature and the ways of the world” and they “should consider the inherent probability or improbability of the evidence.” See also R.C.M. 918(c), Discussion. 

Appellant used his hand when he touched MT’s leg in the car and said he 

“missed touching a woman,” and when he escorted MT through the dorm to her 

room. When Appellant admitted to MT he had been touching her before she 

“passed out,” a reasonable inference is he used the body part he had used before

when he touched her leg—and that commonly is used to touch someone else to 

gratify one’s sexual desire—his hand, or a part thereof. 

 

12 The military judge properly instructed the members that an “incompetent person

cannot consent,” which includes “a person who lacks either the mental or physical ability to consent because” she is “impaired by [an] intoxicant.” See United States v. Pease, 

75 M.J. 180, 185−86 (C.A.A.F. 2016).
United States v. Palacios Cueto, No. ACM 39815

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We conclude that a rational factfinder could have found beyond a reasonable doubt all the essential elements of Appellant’s convicted offenses. Furthermore, in assessing factual sufficiency, after weighing all the evidence in the 

record of trial and having made allowances for not having personally observed 

the witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt. 

Therefore, we find Appellant’s convictions both legally and factually sufficient. 

B. Fair Notice — Theory of Bodily Harm

1. Additional Background

The Government first gave the members the impression that its theory of 

the kissing, as charged in the Specification of the Additional Charge, was that

MT was too incapacitated to consent, but its evidence and argument made clear 

its theory was lack of consent and not incapacitation.

In opening statement, assistant trial counsel explained the dorm videos, 

marked as Prosecution Exhibit 1, would show:

[MT] is so inebriated she does not understand what’s happening. 

Eventually, she’s able to push [Appellant] off and stop that from 

happening any further.

. . . .

. . . And as I said earlier when I started, she passes out. And 

that’s when [Appellant] leans over her, and he fixes a purse that 

he was carrying, and he kisses her on the lips without her consent. Because she couldn’t consent, because she was so inebriated.”[13]

Immediately after trial counsel’s opening statement, civilian defense counsel sought to counter trial counsel’s claim that MT was too incapacitated to 

consent. He asked to show the video in his opening statement. He told the 

members, “I’m going to show you the video, because I don’t think the video is 

completely consistent with that opening statement that you just heard. And I 

don’t want you sitting here for two days thinking that.” Prosecution Exhibit 1 

was played to the members during the defense opening statement. 

In closing argument, trial counsel started with the kissing allegation. He 

focused on lack of consent as manifested through MT’s conduct only; he did not 

argue she was incapable of consenting. He referenced the part of the military 

 

13 The Government tried to show the members Prosecution Exhibit 1 during this part 

of its opening statement, but it would not play. The technical difficulties were resolved 

after the Government’s opening statement ended. 
United States v. Palacios Cueto, No. ACM 39815

12

judge’s definition of consent stating it was a freely given agreement to engage 

in the conduct. He continued,

When she’s laying [sic] on the ground, with her hands up, and 

her head back, is she indicating that she wants to kiss? Is that 

freely given? Or does she manifest the lack of consent through 

words or conduct?

Now you’ll remember that after she was kissed by [Appellant], 

she takes her arm and she pushes him off. That’s what we call 

an expression of lack of consent through conduct. 

Trial counsel made a clear break from his argument about the kissing to the 

other specifications, which alleged an incapacity to consent based on intoxication. 

2. Law

“Due process requires ‘fair notice’ that an act is forbidden and subject to 

criminal sanction” before a person can be prosecuted for committing that act. 

United States v. Vaughan, 58 M.J. 29, 31 (C.A.A.F. 2003) (citing United States 

v. Bivins, 49 M.J. 328, 330 (C.A.A.F. 1998)). 

“Opening statements are not evidence.” United States v. Turner, 39 M.J. 

259, 262 (C.A.A.F. 1994) (citation omitted). 

3. Analysis 

Appellant does not assert that he was not on notice that his conduct would 

subject him to criminal prosecution. As such, his reliance on the Due Process 

Clause14 is misplaced. Appellant asserts, essentially, that he was not on notice 

that the Government’s theory of “bodily harm” to MT included her incapacitation by intoxication to consent to the alleged kissing. On appeal the Government 

asserts Appellant was in fact prosecuted for the kissing on a theory of failure to 

consent—before the victim became incapacitated. We agree with the Government that at trial it pursued a theory of lack of consent, not inability to consent. 

Even MT admitted that at the time of the kiss, she was still capable of consenting and did not consent, but at the time of the stomach touching in her room, 

she was not able to consent. We do not find the assistant trial counsel’s opening 

statement suggesting otherwise to be of a constitutional magnitude, nor was it 

so misleading or confusing that any substantial right of Appellant was materially prejudiced. 

 

14 U.S. CONST. amend. V.
United States v. Palacios Cueto, No. ACM 39815

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C. Court-Members’ Requested Evidence

Appellant contends the military judge erred when he denied the courtmembers’ request to receive statements Appellant made to Air Force Office of 

Special Investigations (AFOSI) agents. We disagree. 

1. Additional Background

Appellant made statements to AFOSI agents during their investigation. At 

trial, starting with the Defense’s cross-examination of an AFOSI agent, counsel 

for both sides elicited testimony regarding Appellant’s statements as reflected 

in the AFOSI report of investigation (ROI). The circuit trial counsel referenced 

some of Appellant’s statements in his closing argument. 

While the court was closed for deliberations on findings, the court members 

told the bailiff they had a question: they wanted the AFOSI ROI. The military 

judge held a session outside the presence of the members pursuant to Article 

39(a), UCMJ, 10 U.S.C. § 839(a), to hear the parties’ view on the request. The 

military judge said he intended to “tell them no, that the rules of evidence control what comes in, and that didn’t come in. They have the evidence that they’re 

going to get, and it’s not going to be the Report of Investigation.” Both counsel 

concurred, but civilian defense counsel wanted to know whether the members 

wanted something specific from the ROI, and circuit trial counsel wondered 

whether they wanted to request a specific witness. Both counsel and the military judge agreed the members had the right to ask for evidence.

The military judge opened the court and told the members “the entire OSI 

Report of Investigation is not admissible.” The military judge added, “If, however, there is some piece of evidence from a witness that you’re requesting, . . . 

you can ask for that. And then again, we’ll have to make a determination 

whether that is admissible for that specific piece of evidence or witness.” The 

court president specified, “We were just wondering if we could see any statements that [Appellant] had made to the OSI agents. Yeah, anything that’s admissible.” 

In a subsequent Article 39(a), UCMJ, session, the Government objected 

based on hearsay. The Defense stated it “would not object to the presentation 

of that evidence,” noted the military judge’s “discretion is wide,” and concluded 

it would not oppose him exercising his discretion in admitting it. The Government15 argued the members are not a party, so Mil. R. Evid. 801, which states 

out-of-court statements by a party opponent are not hearsay, was not applicable. He added, “And the only way for the statement of the accused to become 

admissible is when the government offers it against the accused at a court-

 

15 The transcript attributes the Government’s arguments to the civilian defense counsel, but it is clear from context that a trial counsel was speaking. 
United States v. Palacios Cueto, No. ACM 39815

14

martial. That’s the only reason it’s not admissible.” The military judge ruled 

the evidence was inadmissible, adding, “I do believe the government controls 

admissions by the accused; elected not to put those statements in.” The military judge opened the court, and told the members, “So the statements from 

[Appellant] that were not admitted during the course of the trial are not admissible. And so you will not be getting any of them. Again, if there other [sic] 

pieces of evidence that—or witnesses that you do want to ask, don’t hesitate.” 

The court members did not ask to hear from any witness but did ask for some 

other evidence.16

2. Law

Court members may request evidence. See R.C.M. 801(c), 921(b); see also

Article 46, UCMJ, 10 U.S.C. § 846 (providing the court-martial equal opportunity as counsel for the Government and the accused to obtain witnesses and 

other evidence). However, “the right of the court members to obtain additional 

evidence is not absolute.” United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 

1982). “The right of the members to have additional evidence obtained is subject to an interlocutory ruling by the military judge.” R.C.M. 801(c). When 

members request evidence after the court has closed, “[t]he military judge may, 

in the exercise of discretion, grant such request.” R.C.M. 921(b). 

“We review a military judge’s decision to admit or exclude evidence for an 

abuse of discretion.” United States v. Bess, 75 M.J. 70, 73 (C.A.A.F. 2016) (citation omitted). We find an abuse of discretion when the military judge’s “findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is 

outside the range of choices reasonably arising from the applicable facts and 

the law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008) (citations 

omitted). “This standard requires more than just our disagreement with the 

military judge’s decision.” Bess, 75 M.J. at 75 (citation omitted). 

Hearsay is an out-of-court statement offered for the truth of the matter asserted, and generally is not admissible on the merits. See United States v. 

Finch, 79 M.J. 389, 394 (C.A.A.F. 2020); Mil. R. Evid. 801(c), 802. A statement 

made by an opposing party is not hearsay if offered against the opposing party. 

Mil. R. Evid. 801(d)(2)(A). 

 

16 The court members asked for an index of exhibits and numbers related to the DNA 

analysis. The former was not provided to them; the latter was provided.
United States v. Palacios Cueto, No. ACM 39815

15

3. Analysis

Appellant asserts on appeal that “statements of an accused are admissible 

under Mil. R. Evid. 801(d)(2),” the Government “opened the door to these statements during [the special agent’s] testimony,” and the military judge should 

have analyzed factors under United States v. Lampani, 14 M.J. 22 (C.M.A. 

1982).17 We find the military judge did not abuse his discretion when he declined to provide the members Appellant’s statements from the AFOSI ROI.

Appellant’s statements to AFOSI agents in the ROI were hearsay. Appellant was a party opponent of the Government, and not the court members. The 

military judge did not err when he sustained the Government’s objection to the 

requested evidence as inadmissible hearsay.

To the extent Appellant’s second argument—that the Government “opened 

the door” to these statements—implicates Mil. R. Evid. 106 or 304(h) regarding 

completeness of statements,18 we consider the issue waived. See United States 

v. Clifton, 71 M.J. 489, 491 (C.A.A.F. 2013) (finding trial defense counsel’s “no

objection” response to the military judge’s denial of a panel member’s request 

to call additional witnesses for questioning waived the issue). The Defense had 

the opportunity to make such arguments in support of admission of the requested evidence. Instead, the Defense was neutral, inviting the military judge 

to exercise his wide discretion. We decline to pierce Appellant’s waiver under 

Article 66, UCMJ, 10 U.S.C. § 866. 

Finally, we find no error in the military judge’s resolution of this matter 

without specific reference to the non-exhaustive factors in Lampani, a case 

which is easily distinguished from the present case. In Lampani, 14 M.J. at 24, 

the court members requested a witness be recalled, and the military judge 

summarily denied the request. Here, the court members requested no witnesses; they requested evidence. As such, the Lampani factors are not particularly helpful. The military judge considered the parties’ positions and applied 

the Military Rules of Evidence before determining the evidence would not be 

 

17 “Difficulty in obtaining witnesses and concomitant delay; the materiality of the testimony that a witness could produce; the likelihood that the testimony sought might 

be subject to a claim of privilege; and the objections of the parties to reopening the 

evidence are among the factors the trial judge must consider.” United States v. Lampani, 14 M.J. 22, 26 (C.M.A. 1982).

18 Mil. R. Evid. 106 states, “If a party introduces all or part of a writing or recorded 

statement, an adverse party may require the introduction, at that time, of any other 

part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.” Mil. R. Evid. 304(h) states, “If only part of an alleged admission 

or confession is introduced against the accused, the defense, by cross-examination or 

otherwise, may introduce the remaining portions of the statement.” 
United States v. Palacios Cueto, No. ACM 39815

16

admitted over the Government’s objection. He did not demonstrate an erroneous view of the law, and did not abuse his discretion. 

D. Allegations of Ineffective Assistance of Counsel

Appellant alleges that he was denied effective assistance of counsel. He 

asks this court to consider five deficiencies in the performance of trial defense 

counsel: (1) failure to file a motion to suppress Appellant’s statements to his 

first sergeant; (2) ineffective cross-examination of MT; (3) failure to object to 

findings instructions and the Government’s argument regarding bodily harm; 

(4) failure to submit a timely discovery request; and (5) preparation of an ineffective sentencing case.

1. Law

The Sixth Amendment19 guarantees an accused the right to effective assistance of counsel. United States v. Gilley, 56 M.J. 113, 124 (C.A.A.F. 2001). We 

review allegations of ineffective assistance de novo. United States v. Gooch, 69 

M.J. 353, 362 (C.A.A.F. 2011) (citing United States v. Mazza, 67 M.J. 470, 474 

(C.A.A.F. 2009)). In assessing the effectiveness of counsel, we apply the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), and begin 

with the presumption of competence announced in United States v. Cronic, 466 

U.S. 648, 658 (1984). Gilley, 56 M.J. at 124 (citing United States v. Grigoruk, 

52 M.J. 312, 315 (C.A.A.F. 2000)). “Our scrutiny of a trial defense counsel’s 

performance is ‘highly deferential,’ and we make ‘every effort . . . to eliminate 

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s 

challenged conduct, and to evaluate conduct from counsel’s perspective at the 

time.’” United States v. Akbar, 74 M.J. 364, 379 (C.A.A.F. 2015) (omission in 

original) (quoting Strickland, 466 U.S. at 689).

We will not second-guess reasonable strategic or tactical decisions by trial 

defense counsel. Mazza, 67 M.J. at 475 (citation omitted). “Defense counsel do 

not perform deficiently when they make a strategic decision to accept a risk or 

forego a potential benefit, where it is objectively reasonable to do so.” United 

States v. Datavs, 71 M.J. 420, 424 (C.A.A.F. 2012) (citing Gooch, 69 M.J. at 

362−63). The burden is on the appellant to demonstrate both deficient performance and prejudice. Id. (citation omitted).

We consider the following questions to determine whether the presumption 

of competence has been overcome: (1) if appellant’s allegations are true, is 

there a reasonable explanation for counsel’s actions; (2) if appellant’s allegations are true, did defense counsel’s level of advocacy fall measurably below 

 

19 U.S. CONST. amend. VI.
United States v. Palacios Cueto, No. ACM 39815

17

the performance ordinarily expected of fallible lawyers; and (3) if defense counsel was ineffective, is there a reasonable probability that, absent the errors,

there would have been a different result. Gooch, 69 M.J. at 362; United States 

v. Polk, 32 M.J. 150, 153 (C.M.A. 1991) (citations omitted). Considering the last 

question, “[i]t is not enough to show that the errors had some conceivable effect 

on the outcome,” instead it must be a “probability sufficient to undermine confidence in the outcome,” including “a reasonable probability that, absent the 

errors, the factfinder would have had a reasonable doubt respecting guilt.” 

Datavs, 71 M.J. at 424 (internal quotation marks and citations omitted). 

2. Analysis

In response to Appellant’s assignment of error, we ordered and received 

declarations from both trial defense counsel—Appellant’s civilian defense 

counsel and his area defense counsel. Considering these declarations along 

with the assertions Appellant makes in his assignment of error, we conclude 

that Appellant has not overcome the presumption of competence of his trial 

defense counsel.20 We examine each allegation in turn.

a. Motion to Suppress

Appellant claims his counsel were deficient in failing to move to suppress 

his statements to his first sergeant, and he was prejudiced because his statements corroborated the video showing Appellant kissed MT. Civilian defense 

counsel explained this was not a failure, but “a strategic and tactical choice.”

On balance, they determined the statements were more helpful than harmful 

for three primary reasons. First, one statement was exculpatory to the penetrative offense, of which Appellant was ultimately acquitted. Second, a motion 

to suppress was unlikely to be successful, and if it were, the part of the statement before the rights advisement was “the most exculpatory evidence in the 

case.” Third, Appellant’s statement to his first sergeant was largely consistent 

with his later statement to AFOSI agents after a proper rights advisement. If 

the Government did not introduce at least one of those statements, both of 

which included exculpatory statements, Appellant would have had increased 

pressure to testify and “[l]anguage barriers weighed against” him testifying. 

Finally, in the words of the civilian defense counsel, they chose not to “risk 

losing Specification 1 of the Charge [alleging sexual assault] in order to obtain 

 

20 We considered the declarations to resolve this issue pursuant to United States v.

Jessie, 79 M.J. 437, 442 (C.A.A.F. 2020) (observing a Court of Criminal Appeals is allowed to accept affidavits “when necessary for resolving claims of ineffective assistance 

of trial defense counsel . . . when those claims and issues are raised by the record but 

are not fully resolvable by the materials in the record”). Our consideration is limited 

to determining whether a factfinding hearing or other appellate relief is warranted. 

United States v. Ginn, 47 M.J. 236, 238 (C.A.A.F. 1997) (citations omitted).
United States v. Palacios Cueto, No. ACM 39815

18

an unlikely acquittal on the Additional Charge of a kiss that was recorded and 

that Appellant said was consensual.” We find counsel’s explanations objectively reasonable, and that Appellant has not met his burden to demonstrate 

sub-standard performance of his counsel. Thus, we determine that counsel 

were not deficient in refraining from filing a motion to suppress Appellant’s 

statements to his first sergeant.

b. Cross-examination of MT

Appellant next claims his trial defense counsel should have more thoroughly explored MT’s motive to lie or misrepresent and developed MT’s prior 

inconsistent statements. The trial defense counsel explained that their strategy for the cross-examination of MT was to focus on her lack of recollection—

that “she was confused and not lying.” Such is clear from the record, for example, when civilian defense counsel previewed to the members he would act “gentlemen like” with the witnesses. By the closing argument, however, he argued 

that perhaps MT’s inconsistencies were due to “self-preservation of self-identity”—that she was lying to herself. 

Civilian defense counsel added that their strategy regarding Specification 

2 of the Charge (alleging touching MT’s stomach) was not focused on MT’s testimony about whether the act occurred, but the lack of intent to gratify sexual 

desire. He explained: “[t]he fact that she vomited was arguably the best evidence that he lacked the intent to gratify his sexual desire when he was in the 

bed.” That is, instead of painting MT as a liar, the defense strategy was to posit 

that MT vomiting before the alleged stomach touch would negate any sexual 

desire on Appellant’s part. Appellant counters that this strategy was faulty 

because intent to gratify could be inferred based on the surrounding circumstances, and the evidence indicating a touch on the stomach was limited to 

MT’s memory. However, in cross-examination of MT, civilian defense counsel 

did show MT’s memory was limited. The following is illustrative: after ascertaining MT did not see the touching, civilian defense counsel asked her, “And 

you don’t have any memory of being stroked or caressed or touched or some 

movement of whatever was touching your stomach, right?” to which MT replied, “I can’t remember.” Appellant’s trial defense counsel’s initial strategy of 

focusing on lack of intent, and additional strategy of lack of memory both were 

reasonable. Appellant has not shown that his counsel were deficient.

c. Instructions and Argument on Bodily Harm

Next, Appellant extends his argument regarding the theory of liability for 

the Specification of the Additional Charge (alleging a kiss), claiming his counsel were ineffective for failing to object to the military judge’s instructions regarding bodily harm and incapacity to consent. We disagree. The competence 

of the victim to consent is relevant to whether Appellant caused “bodily 
United States v. Palacios Cueto, No. ACM 39815

19

harm.”21 The military judge’s instructions on these points were accurate statements of the law and were not confusing. We find counsel’s lack of objection 

was not deficient performance.

d. Discovery Request

Appellant claims his trial defense counsel failed to submit a timely and 

thorough discovery request, resulting in a failure “to exercise due diligence to 

completely defend Appellant,” who was prejudiced because “it is likely that 

they would have received additional evidence helpful to Appellant’s defense.” 

Appellant’s area defense counsel disagreed, asserting he “submitted a timely 

and comprehensive discovery request,” which he attached to his declaration. 

Appellant’s civilian defense counsel stated, “We received everything we 

needed,” and noted Appellant has not identified what they allegedly failed to 

obtain. 

After he was detailed post-referral to defend Appellant, the area defense 

counsel was unsure whether Appellant’s civilian defense counsel or his previous area defense counsel had submitted a discovery request, so for “clarity and 

efficiency” he requested discovery over email, which included “all discovery categories that were relevant to the case.” Among the categories he requested 

were “any relevant personnel, medical, and mental health records” and “documents and information concerning any reassignment or ‘expedited transfer’ of 

the complaining witness,” “any document used by a witness to prepare for 

trial,” and items including “documents, photographs, tangible objects . . . obtained from or [which] belong to [Appellant].”

Appellant avers

[D]iscovery requests typically include multiple pages of numerous items including: (1) any evidence to diminish the credibility 

of the complaining witness or other potential witnesses including derogatory data, adverse administrative actions, or information contained on social media; (2) information from the 

AFOSI investigation outside of the ROI including agent notes, 

internal data pages, interview logs, evidence of adverse actions 

taken against any of the agents involved; (3) any handwritten, 

 

21 We echo a previous decision from this court, which considered a conviction for sexual 

assault by bodily harm: “The extent to which [the victim] was intoxicated or was asleep 

at the time [the a]ppellant committed the sexual act were part of the ‘surrounding 

circumstances’ that were ‘to be considered in determining whether [the victim] gave

consent,’ in accordance with Article 120, UCMJ.” United States v. Campbell, No. ACM 

38875 (reh), 2021 CCA LEXIS 170, at *35 (A.F. Ct. Crim. App. 10 Feb. 2021) (unpub. 

op.) (citing MCM, pt. IV, ¶ 45.a.(g)(8)(C)).
United States v. Palacios Cueto, No. ACM 39815

20

typed or recorded statements by potential witnesses; (4) disclosure of evidence seized from the accused; and so on.

We find the area defense counsel’s abbreviated request sufficiently addressed 

these items. As to (1), the Government is required to provide such information 

even in the absence of a defense request. R.C.M. 701(a)(6)(D). Item (2) is fairly 

included in the request for documents a witness used to prepare for trial as 

well as the Government’s obligation to provide information affecting the credibility of its witnesses. The area defense counsel’s request also fairly included

items (3) and (4). 

The only specific “additional evidence” Appellant cited that he would have 

received had his trial defense team submitted a more lengthy discovery request

related to two matters the Defense identified in its post-trial motion for appropriate relief: MT’s complaint about another male Airman from her dorm in 

2017 and her resulting move to a different dorm room, and MT’s interactions 

with a paralegal from the prosecuting base legal office both before and after 

the alleged offenses. The military judge held a post-trial Article 39(a), UCMJ, 

hearing, at which the parties presented evidence and argument regarding the 

defense request to dismiss the case with prejudice or, if not, order a new trial. 

The Government submitted overwhelming evidence that neither investigators 

nor legal office personnel—save the paralegal—knew about the 2017 complaint. Additionally, the Government argued that information about MT and 

the paralegal would not be responsive to a general defense discovery request, 

they were not required affirmatively to provide the Defense the information, 

and the paralegal’s relationship with MT was in the AFOSI ROI.22

A lengthy but general discovery request likely would not have resulted in 

the Defense receiving additional information about the paralegal’s relationship 

with MT from the Government. Moreover, the Government did not consider

“moving dorm rooms” as a reassignment responsive to the Defense request in 

discovery about “any reassignment or ‘expedited transfer;’” telling the military 

judge during the post-trial hearing, “That is not at all something that the 

[G]overnment was oriented to.” Appellant has not identified what his trial defense team specifically failed to do that would have prompted the Government 

to provide this information through discovery. Appellant has not shown that 

the typical defense discovery request would encompass complaints MT made 

about others in the dorm or the finer details of MT’s relationship with a member of the legal office. Finally, we agree with the military judge that “there is 

 

22 The trial defense team had received agent notes before trial, to include notes of the 

interview with the paralegal indicating she was acquainted with MT. The Defense submitted the notes as Appellate Exhibit XLIV in support of its post-trial motion. 
United States v. Palacios Cueto, No. ACM 39815

21

virtually no probative value to the evidence and it would not have been admitted at trial.” Thus, we conclude the trial defense counsel were not ineffective 

in its requests for discovery.

e. Appellant’s Unsworn Statement in Sentencing

Appellant asserts his trial defense counsel were ineffective “for failing to 

include relevant collateral consequences in his unsworn statement,” including 

sex-offender registration, consequences of a federal conviction, and mandatory 

administrative discharge processing. We disagree. “The collateral consequences of a court-martial do not constitute R.C.M. 1001 material, and while 

they may be referenced in an unsworn statement, . . . they should not be considered for sentencing.” United States v. Talkington, 73 M.J. 212, 216 (C.A.A.F. 

2014) (citations omitted). Trial defense counsel had no duty to inform the members of matters that are an improper consideration for sentencing, much less 

do so through their client’s unsworn statement. See id. (addressing a military 

judge’s instruction regarding an appellant’s unsworn statement and observing 

that the proper focus of sentencing is on the offense and the character of the 

accused, and “to prevent the waters of the military sentencing process from 

being muddied by an unending catalogue of administrative information” (internal quotation marks omitted) (quoting United States v. Rosato, 32 M.J. 93, 

96 (C.M.A. 1991))). 

Moreover, Appellant did not aver that his trial defense counsel failed to 

inform him of sex-offender registration requirements so that he could address 

the matter in his unsworn statement.23 Appellant submitted no declaration; he 

did not allege he wanted to speak to sex-offender registration but was counseled against it. The owner of an accused’s unsworn statement is that accused. 

See United States v. Marcum, 60 M.J. 198, 209 (C.A.A.F. 2004) (“[T]he right to 

make the unsworn statement is personal to the accused.”). On these facts, we 

will not find a defense counsel ineffective for what an accused chooses to say to 

the sentencing authority. 

While Appellant did not specifically mention sex-offender registration or 

other consequences that might flow from his conviction, the area defense counsel argued to the members that Appellant “is now a federal convict for the rest 

of his life, of a sexual assault offense under Article 120.” This oblique reference 

to the lifetime consequence of a sexual assault conviction may have been the 

 

23 Similarly, Appellant does not claim that he did not know about the change in the 

law of abusive sexual contact, or that he wanted to address the topic in his unsworn 

statement. 
United States v. Palacios Cueto, No. ACM 39815

22

trigger for the members to ask the military judge “what is the impact to [Appellant] as a federal convict” and “will he have to register as a sex offender.”24

We find counsel’s performance was not deficient.

Accordingly, the trial defense counsels’ actions were reasonable and their 

performance was not measurably below professional standards. As such, we 

need not reach the question of whether there was a reasonable probability of a 

different result.

E. Improper Argument

Appellant contends the trial counsel committed prosecutorial misconduct 

when stating that they represented “the pursuit of justice” and argued that 

justice would only be served if Appellant was convicted and adjudged a sufficient punishment. We have considered the prosecutors’ statements and arguments and find error.

1. Additional Background

The circuit trial counsel introduced himself and his co-counsel before questioning the court members. He stated, 

My name is [ ]. I’m the circuit trial counsel and I’m stationed at 

Langley Air Force Base. I am TDY here to represent the United 

States of America in the pursuit of justice in this case. I’m assisted today with Lieutenant [ ], he is stationed here at Hanscom. We will be dividing up tasks throughout this trial, and he 

is what we call the assistant trial counsel.

After voir dire, the number of enlisted court members fell below the minimum 

ratio of one-third of the panel, see R.C.M. 503(a)(2), and the convening authority detailed additional enlisted court members. Before questioning those members, the circuit trial counsel introduced himself and his co-counsel using words 

very similar as before, including, “I’m stationed at Langley Air Force Base, 

Virginia, and I’m TDY here to represent the United States of America in the 

pursuit of justice in this case.” 

 

24 Appellant does not assert, nor do we find, plain error when, in response to these 

questions, the military judge provided answers and instructions in line with Talkington, to which the Defense indicated it had no objection, questions, or concerns, thus 

waiving the issue. See United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (conceding to an instruction constitutes waiver), cert. denied, 141 S. Ct. 355 (2020). We also 

decline to speculate whether counsel were ineffective when they did not request the 

military judge instruct on issues collateral to the matters the members were charged 

with deciding. 
United States v. Palacios Cueto, No. ACM 39815

23

The assistant trial counsel gave the Government’s opening statement to 

the court members. He ended with these words,

Members, I will leave you with this: it’s your job to listen to both 

sides and review all the evidence in this case. And after the 

fact—I should say one more thing. After all of this happened, you 

will be able to see text messages between the accused and between [MT], where [Appellant] is essentially pleading for forgiveness. And I want to quote one of those text messages. “You 

please repair the little that can be repaired.”

Now I ask you all to repair the little that can be repaired and 

bring justice to [MT] by finding [Appellant] guilty of all charges 

and specifications that he faces today.

At the beginning of his argument to the court members on findings, circuit 

trial counsel revisited the concept of justice he brought up in voir dire, stating,

Good morning. I feel like it’s been months since I first spoke with 

you during voir dire. And as I go through my argument today, 

this will be the last time that I speak with [sic] before this trial 

becomes yours. Our duties will be over and your duties will 

begin. And you will have the ultimate decision on what happened in this case and whether justice will be served, or whether 

[Appellant] will be acquitted.

A tremendous responsibility. One that is not easy and one that 

I’m going to attempt to help out with today. There was a lot of 

law that you just received from the military judge, it’s about 17 

pages or so. You’ll get it after we finish with closing arguments.

As he was arguing why the members should find Appellant guilty of sexual 

assault, he stated, 

We talked about this in voir dire. The government has no obligation to prove its case with 100 percent mathematical certainty. 

The world doesn’t work like that. If that were the standard,

there would be no justice. The standard is proof beyond a reasonable doubt. So any doubts have to be reasonable. They have 

to be real; real possibilities.

While the civilian defense counsel did not object during the circuit trial 

counsel’s argument, he began his closing argument by addressing the standard 

of reasonable doubt, then countering the argument about justice:

If you think there’s a real possibility that he’s not guilty, you 

must give him the benefit of the doubt and find him not guilty.
United States v. Palacios Cueto, No. ACM 39815

24

Why am I repeating that? Because it’s more important than 

ever. Because I sat there at the table and I listened to the prosecutor at the beginning of his closing statement utter words that 

should never come out of a prosecutor’s mouth. He gave you a 

false choice. He said “You can render justice and find him guilty, 

or you can find him not guilty.”

It’s a false choice. We all swore to defend the Constitution of the 

United States. And if you think there’s a real possibility that he’s 

not guilty, you give him the benefit of the doubt and you find him 

not guilty. And that is justice. Those are words that should never 

come out of a prosecutor’s mouth.

Civilian defense counsel also argued:

Because what I have here is a complainant that has no memory 

of a penetrative act, right? I have a client who says that there 

was no penetrative act, right? And I have some monumental 

problems with the DNA evidence. This is a search for truth. 

We’re all—this false choice that the prosecutor gives you, is absolutely a false choice. We’re all in this together. We have different jobs to do, but it’s still a search for truth.

Civilian defense counsel also ended his argument with the theme of reasonable 

doubt and justice:

So, members of the panel, what the government has given you is 

a false choice. If you think there’s a real possibility that he’s not 

guilty, you must give him the benefit of the doubt. . . . And it 

would be a serious injustice, miscarriage of justice, if this case is 

decided wrongly.

Circuit trial counsel responded directly, beginning his rebuttal argument,

It’s not a false choice. It’s a simple choice: guilty or not guilty. 

And that decision has to be based upon the evidence and the law. 

And when that decision is made, that’s what we call justice. And 

the evidence in this case supports guilt beyond a reasonable 

doubt. That’s not a false choice. That is justice. And that is what 

the evidence requires you to do in this case.

The court members acquitted Appellant of the sexual assault specification, 

and convicted him of the two abusive sexual contact specifications. In his sentencing argument, the assistant trial counsel continued the “justice” theme

from his opening statement:

Now I know it has been a long week for everybody. But if you 

could go back to when I first spoke with you all, days ago, I stood 
United States v. Palacios Cueto, No. ACM 39815

25

up here. I said you all had a duty, you all had a responsibility to 

find justice in this case. And there is no justice without an appropriate punishment. Now it’s my job, and it’s my duty, and I 

should add, one that I hold in the highest regard, to explain to 

you trial counsel’s sentence recommendation. 

And he ended his argument with the justice theme:

Members, I submit to you now to make the determination for a 

fair and just sentence. A sufficient punishment that will bring 

justice here to this case, and that will bring some form of closure 

to [MT] for all that she has to have had endured in this yearand-a-half nightmare.

No party requested, and the military judge did not give sua sponte, any 

specific instruction to the members about the Government’s theme of justice. 

The military judge did provide standard—and accurate—instructions on the 

burden of proof. Just before closing arguments, the military judge provided 

instructions as required by R.C.M. 920(e)(1)−(5), including the presumption of 

innocence, the Government’s burden of proof beyond a reasonable doubt, and 

to consider “only matters properly before the court as a whole.” Immediately 

after the Government’s rebuttal argument, the military judge provided a 

standard instruction to the members, stating, “If there is any inconsistency 

between what counsel have said about the instructions and the instructions 

which I gave you, you must accept my statement as being correct.” The military 

judge also advised the members that “arguments of trial counsel and his recommendations are only his individual suggestions, and may not be considered 

as the recommendation or opinion of anyone other than such counsel.”

2. Law

“Prosecutorial misconduct can be generally defined as action or inaction by 

a prosecutor in violation of some legal norm or standard, e.g., a constitutional 

provision, a statute, a Manual rule, or an applicable professional ethics canon.” 

United States v. Meek, 44 M.J. 1, 5 (C.A.A.F. 1996) (citation omitted). A prosecutor’s interest “in a criminal prosecution is not that it shall win a case, but 

that justice shall be done.” United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 

2005) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

We review prosecutorial misconduct and improper argument de novo. 

United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation omitted), cert.

denied, 140 S. Ct. 2566 (2020). When no objection is made at trial, we review 

for plain error. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018) (citations omitted). “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 401 (quoting Fletcher, 62 M.J. at 179). We do not 
United States v. Palacios Cueto, No. ACM 39815

26

review counsel’s words in isolation; we review the argument in context of the 

entire court-martial. United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000)

(citations omitted). 

If we find a prosecutor’s argument “amounted to clear, obvious error,” we 

then determine “whether there was a reasonable probability that, but for the 

error, the outcome of the proceeding would have been different.” Voorhees, 79 

M.J. at 9 (citations and internal quotations marks omitted). “For constitutional 

errors, rather than the probability that the outcome would have been different, 

courts must be confident that there was no reasonable probability that the error might have contributed to the conviction.” United States v. Tovarchavez, 78

M.J. 458, 462 n. 5 (C.A.A.F. 2019) (emphasis in original) (citing Chapman v. 

California, 386 U.S. 18, 24 (1967)). That is, “where a forfeited constitutional 

error was clear or obvious, ‘material prejudice’ is assessed using the ‘harmless 

beyond a reasonable doubt’ standard set out in Chapman.” Id. at 460 (quoting 

United States v. Jones, 78 M.J. 37, 45 (C.A.A.F. 2018)). In analyzing prejudice 

from a prosecutor’s improper argument, we consider: “(1) the severity of the 

misconduct, (2) the measures adopted to cure the misconduct, and (3) the 

weight of the evidence supporting the conviction.” Andrews, 77 M.J. at 402 

(quoting Fletcher, 62 M.J. at 184).

The burden of proof at a court-martial is of a constitutional magnitude. See

United States v. Hills, 75 M.J. 350, 357 (C.A.A.F. 2016). “Lest there remain any 

doubt about the constitutional stature of the reasonable-doubt standard, we 

explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to 

constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 

364 (1970). 

It is inappropriate for counsel to reference “the jury’s societal obligation . . . 

if it suggests the panel base its decision on the impact of the verdict on society, 

a victim, and the criminal justice system as a whole, rather than the facts of the 

case.” United States v. Condon, No. ACM 38765, 2017 CCA LEXIS 187, at *53

(A.F. Ct. Crim. App. 10 Mar. 2017) (unpub. op.), aff’d, 77 M.J. 244 (C.A.A.F. 

2018).

In United States v. Schroeder, 65 M.J. 49 (C.A.A.F. 2007), the United States 

Court of Appeals for the Armed Forces (CAAF) considered the propriety of the 

prosecutor’s closing argument pleading for justice for victims of charged and 

uncharged misconduct introduced under Mil. R. Evid. 414. “Trial counsels’

presentation invited members to convict and punish [the a]ppellant for his uncharged misconduct, as opposed to using that misconduct to inform their judgments regarding the charged conduct. The error was also plain and obvious.” 

Schroeder, 65 M.J. at 58. After considering the factors in Fletcher, the CAAF 
United States v. Palacios Cueto, No. ACM 39815

27

found no plain error, noting that “[i]mproper argument does not require reversal unless ‘the trial counsel’s comments, taken as a whole, were so damaging 

that we cannot be confident that the members convicted the appellant on the 

basis of the evidence alone.’” Id. at 58−59 (quoting Fletcher, 62 M.J. at 184). 

3. Analysis 

We find two statements were obvious error: (1) the assistant trial counsel’s 

opening statement asking the court members to “bring justice to [MT] by finding [Appellant] guilty of all charges and specifications that he faces today,” and 

(2) the circuit trial counsel’s comment in argument to the court members that 

their duty was to decide “whether justice will be served, or whether [Appellant] 

will be acquitted.” We find no prejudicial error in assistant trial counsel’s statements in sentencing. We consider the totality of the prosecutors’ statements 

from voir dire through closing arguments.

In voir dire, circuit trial counsel told the court members he was “represent[ing] the United States of America in the pursuit of justice;” he had not yet 

explained what “justice” meant. Next, in opening statement the assistant trial 

counsel asked the court members to “bring justice to [MT] by finding [Appellant] guilty.” That is a plea for a finding based on the interests of a victim, and 

not on the evidence. See Condon, unpub. op. at *53. In closing argument, circuit 

trial counsel reminded the members he spoke to them in voir dire. He then told 

them they “have the ultimate decision on what happened in this case and 

whether justice will be served, or whether [Appellant] will be acquitted.” In a 

similar vein, he explained the Prosecution’s burden of proof was not “100 percent mathematical certainty” because “[i]f that were the standard, there would 

be no justice.” Put together, the messages the prosecutors sent the court members were that the Prosecution seeks justice for the alleged victim, and justice 

can only mean a conviction. 

Civilian defense counsel interpreted the prosecutor’s argument as a comment on the burden of proof; that is, the prosecutor asked the court members to 

find Appellant guilty because that is what “justice” requires, as opposed to a 

finding based on proof beyond a reasonable doubt. The risk of equating “justice” 

with “criminal conviction” is the members would disregard the presumption of 

innocence and apply the wrong standard of proof.25

 

25 We note this issue is comparable to, but distinguishable from, United States v. Hills, 

in which the CAAF found the military judge’s instructions on the standard of proof 

“muddled” and implicated the Due Process Clause (U.S. CONST. amend. V.) “by creating the risk that the members would apply an impermissibly low standard of proof, 
United States v. Palacios Cueto, No. ACM 39815

28

We next consider whether this obvious error resulted in material prejudice 

to a substantial right. First, the misconduct was moderately severe. It was a 

misstatement of the law, including the duties of the prosecutor and the court 

members. The statements that “there would be no justice” if the standard were 

“100 percent mathematical certainty” was presented during the portion of the 

argument about sexual assault, of which offense the members found Appellant 

not guilty. The circuit trial counsel did not end his argument with this theme;

he ended with a summary of the evidence. The statements did not introduce 

facts not in evidence or have the tendency to inflame the passions of the court 

members. The reference to justice for victims was not repeated from opening 

statement to closing argument. 

Failure to object is “some measure of the minimal impact of [the] prosecutor’s improper argument.” Gilley, 56 M.J. at 123 (internal quotation marks and 

citation omitted). However, counsel may have a tactical reason for not objecting, see Voorhees, 79 M.J. at 13, and may choose to address even a significant 

impropriety without involving the military judge.26

Like in Voorhees, in this case civilian defense counsel allowed trial counsel’s 

improper argument to continue, then addressed it in the beginning of his closing argument to the members. See id. Several times he explained the correct 

burden of proof and that choosing justice or acquittal was “a false choice.” While 

in his rebuttal argument the circuit trial counsel did not retract his earlier 

statements, he correctly explained both “justice” and the Government’s burden. The military judge provided correct instructions before and after closing 

arguments regarding the burden of proof, the presumption of innocence, and 

making findings based on the evidence. In all, several measures were taken to 

cure the misconduct. Such measures can be sufficient to find the erroneous 

statements harmless beyond a reasonable doubt. Cf. United States v. Mason, 59

M.J. 416, 425 (C.A.A.F. 2004) (finding error harmless beyond a reasonable 

doubt where the military judge overruled a defense objection to the DNA expert 

 

undermining both ‘the presumption of innocence and the requirement that the prosecution prove guilt beyond a reasonable doubt.’” 75 M.J. 350, 357 (C.A.A.F. 2016) (citation omitted). However, in Hills the error was in the military judge’s instructions to 

the members, not prosecutors’ statements. 

26 If the defense objection is sustained and the military judge provides the court members an appropriate instruction, the defense counsel may be precluded from addressing 

the same matter in his argument. A reasonable tactic, therefore, would be for counsel 

to refrain from objecting, then address the matter freely during counsel’s own argument.
United States v. Palacios Cueto, No. ACM 39815

29

testifying about whether the defense had requested evidence be retested, because of the trial counsel’s correct reiteration in argument about which party 

had the burden of proof, as well as the military judge’s standard instruction 

that the burden never shifts from the Government).

The weight of the evidence supporting the convictions, as noted in our discussion of legal and factual sufficiency, was moderate. We disagree with Appellant that he “had a strong case for reasonable mistake of fact as to consent” 

and that MT’s testimony “was riddled with inconsistencies.”27

Appellant does not assert that the prosecutors’ improper arguments were of 

a constitutional dimension. Nevertheless, such an analysis is required inasmuch as the prosecutors’ argument for “justice” can be interpreted as arguments to reduce the Government’s burden of proof to something lower than 

proof beyond a reasonable doubt based upon the evidence and to disregard the 

presumption of innocence. See Hills, 75 M.J. at 357. To find such an error harmless beyond a reasonable doubt, we must be confident that there was no reasonable probability that the error might have contributed to the conviction. 

We are not convinced the court members erroneously believed the standard 

of proof was less than beyond a reasonable doubt, or that Appellant was not 

presumed innocent, or that they could convict based on something other than 

the evidence presented. We recognize that, absent evidence to the contrary, we 

may “presume that members follow a military judge’s instructions.” United 

States v. Taylor, 53 M.J. 195, 198 (C.A.A.F. 2000) (citations omitted). If the

court members misinterpreted the circuit trial counsel’s statement of the law 

as correct, and disregarded what the military judge and even the civilian defense counsel told them, he left them with this: “It’s a simple choice: guilty or 

not guilty. And that decision has to be based upon the evidence and the law. 

And when that decision is made, that’s what we call justice.” We are satisfied 

beyond a reasonable doubt that the prosecutors’ statements did not result in 

unjust convictions. 

A prosecutor may argue that justice is required. However, 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 

 

27 We note it would not be helpful to compare the strength of the evidence supporting 

the allegation of sexual assault of which Appellant was acquitted, including MT’s testimony. The record indicates Appellant was charged with committing an act while MT 

was incapacitated by alcohol, but the evidence supported a finding that MT instead 

was asleep, a point civilian defense counsel returned to more than once during his 

closing argument.
United States v. Palacios Cueto, No. ACM 39815

30

lest it be confused with justice for the victim or society or the military justice 

system. 

III. CONCLUSION

The findings and sentence entered are correct in law and fact, and no error 

materially prejudicial to the substantial rights of Appellant occurred. Articles 

59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the findings 

and sentence are AFFIRMED.

MEGINLEY, Judge, (dissenting in part and in the result):

I agree with the court’s decision to affirm the finding of guilty as to the 

Additional Charge and its specification, alleging Appellant made sexual contact upon MT by kissing her mouth, but for different reasons. However, I respectfully cannot agree with the court’s decision to affirm the finding of guilty 

to Specification 2 of the Charge, which alleged that Appellant made sexual 

contact upon MT by touching her stomach with his hand. I would find this 

specification legally and factually insufficient, failing to meet the element that 

Appellant intended to gratify his sexual desire by touching MT’s stomach, and 

would set aside Appellant’s adjudged punishment of a bad-conduct discharge.

Further, I find there was ineffective assistance of counsel and that trial counsel 

committed prosecutorial misconduct during their arguments. 

A. Legal and Factual Sufficiency of Appellant Touching MT’s Stomach

As the majority notes in its opinion, the elements of Specification 2 of the 

Charge alleging abusive sexual contact in violation of Article 120, UCMJ, 10 

U.S.C. § 920, for which Appellant was convicted include: (1) that Appellant 

committed a sexual contact upon MT by touching MT’s stomach with his hand; 

(2) that MT was incapable of consenting to the sexual contact due to impairment by alcohol; (3) that Appellant knew or reasonably should have known of 

MT’s impairment; and (4) that Appellant did so with the intent to gratify his 

sexual desire. See Manual for Courts-Martial (2016 ed.) (2016 MCM), pt. IV, ¶ 

45.b.(8)(f). 

1. MT’s testimony

The only evidence regarding the touching comes exclusively from MT’s incourt testimony, which was relatively brief, and from statements she made initially to the Sexual Assault Nurse Examiner (SANE). In court, MT testified 

she went to the bathroom and saw Appellant. She then provided the following 

further responses,

A [MT]. I did what I had to do. And then I went over to the bed 

and I la[y] down.
United States v. Palacios Cueto, No. ACM 39815

31

Q [Trial Counsel]. Now as you’re going to your bed to l[ie] down, 

do you see him anywhere?

A. I didn’t see him l[ ]ying down in the bed. I did not -- if I would 

have seen him, I would have, of course, I would have done something. I would have --

Q. Did you see him –

A. -- I would have reacted.

Q. Did you see him anywhere in the room?

A. I remember I . . . walked out of the restroom, and I la[y] down. 

That’s what I remember.

Q. And let’s be honest, what is your memory like at this point?

A. I wasn’t able to remember that much, so . . . .

Shortly thereafter, trial counsel asked MT the following questions:

Q. Let me ask you this: put yourself, as hard as it is, back in that

moment, when you’re l[ ]ying in your bed the morning of the 

27th. What’s the last thing you remember feeling? And I know it 

may be hazy. What is that?

A. Feeling touched. Uh-huh.

Q. Any ability to say where?

A. My stomach. It was very, very blurry.

Q. Hard to remember, is that right?

A. It’s hard to remember, yes.

Q. It’s a long time ago?

A. Yes.

Q. You were very intoxicated, is that right?

A. Yes.

On cross-examination, civilian defense counsel had the following exchange 

with MT: 

Q [Civilian Defense Counsel]. There was one other point. And I 

would be remiss if I didn’t talk about it. That last memory that 

you had was laying in the bed, right?

A [MT]. Yes, sir.

Q. And your testimony on direct examination was that you felt 

as though you were being touched on your stomach, right?
United States v. Palacios Cueto, No. ACM 39815

32

A. Yes, sir.

Q. But you didn’t open your eyes and look, right?

A. No, sir.

Q. There was no rubbing?

A. I can’t remember right now.

Q. There was no stroking or caressing of your stomach?

A. I can’t remember, sir.

Q. You just felt as though something was touching your stomach, 

and you don’t have any memory of actually seeing or knowing 

what it was, right?

A. I -- I’m just -- I’m telling you what I remember now.

Q. Right.

A. So, yes.

Q. Right. But you don’t have any memory of physically opening 

your eyes and visually looking --

A. No, sir.

Q. And you don’t have any memory of being stroked or caressed 

or touched or some movement of whatever was touching your 

stomach, right?

A. I can’t remember.

This was the extent of the questioning and testimony of MT on this issue. 

At no point did MT state that Appellant touched her stomach with his hand. 

Besides “[f]eeling touched” on her stomach, the only other evidence provided 

was that MT told the SANE that she went to the bathroom, then lay in bed, 

and after she lay down, that is when Appellant touched her body over her clothing. More problematic for the Government, even if one reads into MT’s testimony that Appellant did in fact touch her stomach with his hand, I find there 

was nothing in the testimony above to infer Appellant did so with the intent to 

gratify his sexual desire. Assuming Appellant did in fact touch her, MT did not 

tell the court where on her stomach Appellant allegedly touched her, with what 

(hand, finger, or object), how long he may have touched her, or whether he 

touched her over or under her clothing. There is no detail or context to her 

testimony. 

2. Evidence from the Additional Charge

While MT’s testimony raises issues as to the legal and factual sufficiency 

of the stomach touch allegation, the video of the kiss puts MT’s testimony as 
United States v. Palacios Cueto, No. ACM 39815

33

to the stomach touch in perspective.1 The majority accurately describes Appellant’s actions leading up to, and after the kiss, as the video shows MT intoxicated, to the point she has trouble walking, and actually falls down. Despite 

the glaring fact that the kiss happens quickly, and is quite literally a “peck” on 

what appears to be her mouth (if one were to blink, it could be missed), a rational factfinder could conclude MT could not consent to being kissed.

MT’s state of intoxication and the genesis of the kiss offense as an additional charge is significant and needs to be placed in context with her testimony. The kiss incident appears to first come up during the Article 32, UCMJ, 

10 U.S.C. § 832, hearing, and was only referred as an additional charge when 

requested by MT’s special victims’ counsel (SVC) and with the approval of MT

(according to her SVC). Prior to trial, MT never stated Appellant kissed her, 

never told Air Force Office of Special Investigation (AFOSI) agents about the 

kiss, and never told the SANE she was kissed. For the first time on the witness 

stand, nearly 18 months after the incident, MT “start[ed] to refresh [her] 

memory,” and only then, did MT remember Appellant kissing her. In other 

words, despite the fact that there was a video of the incident, the Government 

referred an additional charge and specification that its own victim, apparently, 

knew little, if anything, about. The addition of the charge appears to have been 

nothing more than an afterthought or an attempt by the Government to shore 

up what was already a fragile case. After review of the video, MT’s testimony 

on remembering a kiss, for the first time on the witness stand, 18 months after 

the fact, indicates significant recollection abilities, and exposed credibility and 

believability problems on her part related to the stomach touch, and to the case 

as a whole. Therefore, because of MT’s credibility issues relating to the kiss, I 

find this evidence contributes to my finding that the touching offense is legally 

and factually insufficient.

3. Evidence from Appellant

There was additional evidence introduced at trial on the issue of Appellant 

touching MT, as the Government called Appellant’s first sergeant to testify 

that Appellant called him the same day as the incident and told him what happened. Appellant stated he was “hanging out with a female friend the night 

before,” 

And as the night progressed, I think she had some trouble going 

back to her room. And so [Appellant] helped her back to her 

room. And when he got in there he mentioned that he went into 

 

1 Based on the videotape evidence, I concur with the majority that the Additional 

Charge and its specification related to Appellant kissing MT is legally and factually 

sufficient. 
United States v. Palacios Cueto, No. ACM 39815

34

the dorm room bathroom -- because there’s two rooms that share 

a bathroom -- he went in there to lock the suite-mate’s door, so 

that way the suite-mate wouldn’t come in. 

And then he mentioned that she went in there and threw up. So 

he started helping her clean up that vomit, [and] stayed back. 

When she went back to her bed and fell asleep, he finished cleaning up the vomit, and then went into bed with her and went to 

sleep. 

 Appellant also told his first sergeant MT threw up a second time, and he 

cleaned that vomit up as well. While some would view Appellant’s statement 

as self-serving and question his credibility, there was evidence corroborating 

Appellant’s statement to his first sergeant. Despite MT’s testimony that she 

threw up later that day after the alleged incident (and not right before she 

went to bed), AFOSI agents found vomit on MT’s floor (using a black light), 

possible vomit stains on MT’s blanket, and her nightstand. If Appellant did in 

fact touch her stomach, the evidence suggests it probably occurred in a fairly 

narrow timeframe at or around the time he told his first sergeant he was cleaning up vomit. Civilian defense counsel told the members during closing, “[t]he

fact that she vomited was arguably the best evidence that he lacked the intent 

to gratify his sexual desire when he was in the bed.” I agree. There was unconvincing evidence that Appellant touched MT’s stomach with the intent to gratify his sexual desire.

4. Conclusion and Sentence Reassessment

The majority finds ample circumstantial evidence to support the conviction

of the stomach touch, highlighting that Appellant touched MT’s legs hours earlier, the kiss in the hallway, his statement that he intended to have sex with 

MT (“but as soon as [she] passed out, I said no,”), and the fact that Appellant 

slept in MT’s bed wearing only his underwear. My esteemed colleagues also 

note that Appellant’s DNA was found on MT’s underwear.2 On its face, these 

facts are not favorable to Appellant.

 

2 It is important to qualify the DNA evidence in this case. The inside crotch area of the 

underwear the Appellant and MT each was wearing, as well as MT’s shorts, was analyzed for DNA. The examination identified Appellant’s DNA on MT’s underwear and 

shorts, and MT’s DNA on Appellant’s underwear. In response to the court-martial’s 

question about the amount of male and female DNA in the underwear, the parties 

stipulated to an answer: “MT’s underwear contained 1,034.18 nanograms of DNA, and 

of that total, the amount that was male was 0.57 nanograms (with a trace amount of 
United States v. Palacios Cueto, No. ACM 39815

35

However, these facts are spread out over hours, and the only fact of substance regarding this allegation related to MT’s stomach (other than Appellant 

touched MT) is that Appellant apparently touched MT’s stomach after she 

went to the bathroom or threw up. After weighing the evidence in the record of 

trial and making allowances for not having personally observed the witnesses,

I am not convinced the Government proved the element that Appellant touched 

MT to gratify his sexual desire beyond a reasonable doubt. Other than when 

Appellant allegedly touched MT on her stomach, she provided no details as to 

the touching and her testimony was nothing more than a series of “I don’t remember[s].” Just because Appellant’s DNA was found in MT’s underwear does 

not mean it is a reasonable inference that Appellant also touched her stomach 

in a sexual or erogenous manner at the only time it could have occurred. As 

such, I find that the Government did not prove the element of intent to gratify

sexual desire beyond a reasonable doubt. For these reasons, I find this specification to be legally and factually insufficient and would set aside the finding 

of guilty to Specification 2 of the Charge and dismiss it with prejudice. 

In setting aside the stomach specification, I would evaluate whether to reassess Appellant’s sentence. This court has “broad discretion” when reassessing sentences. United States v. Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 

2013). Our superior court has repeatedly held that if we “can determine to [our] 

satisfaction that, absent any error, the sentence adjudged would have been of 

at least a certain severity, then a sentence of that severity or less will be free 

of the prejudicial effects of error.” United States v. Sales, 22 M.J. 305, 308 

(C.A.A.F. 1986). This analysis is based on a totality of the circumstances with 

the following as illustrative factors: dramatic changes in the penalty landscape 

and exposure, the forum, whether the remaining offenses capture the gravamen of the criminal conduct, whether significant or aggravating circumstances 

 

DNA attributed to a male other than [Appellant]); [Appellant]’s underwear contained 

23.73 nanograms of DNA, and the amount that was MT’s was 4.6 nanograms.” 

The government DNA expert opined the DNA source was from a biological fluid (based 

on the size and quantity of the DNA), but did not rule out the possibility of skin cells 

as the source of the DNA. The Government’s DNA expert did not test for saliva, sweat, 

smegma, or urine. The defense DNA expert testified the DNA could come from either 

biological fluids or skin cells. Further, if the DNA was from a biological fluid, it was an 

uncontroverted fact that it was not semen, spermatozoa, or any seminal fluid, and 

there was no evidence it was vaginal fluid (nor was Appellant’s underwear tested for 

vaginal fluid). USACIL had the technology to test for vaginal fluid, but did not. One 

flaw from the testimony of both experts was an explanation of what constitutes a nanogram. A nanogram is one billionth of a gram, which given the amounts provided, would 

have been an infinitesimal amount of DNA. 
United States v. Palacios Cueto, No. ACM 39815

36

remain admissible and relevant, and whether the remaining offenses are the 

type that we as appellate judges have experience and familiarity with to reliably determine what sentence would have been imposed at trial. Winckelmann, 

73 M.J. at 15–16. Applying these factors to this case, I am confident that reassessment is appropriate.

The penalty landscape in Appellant’s case has changed. Setting aside the 

convictions for the touching of MT’s stomach, the maximum confinement, 

which was 14 years, is reduced by seven years to a new maximum of seven

years. The other sentence components are not changed. This reduction in solely 

the maximum confinement weighs in favor of reassessment. Reviewing the entire record, and taking into consideration Appellant would have a single conviction for a single kiss, I would disapprove Appellant’s bad-conduct discharge.3

B. Ineffective Assistance of Counsel

Appellant argues his counsel was ineffective in failing to present an effective sentencing case. I agree with Appellant, but for different reasons than his 

counsel have alleged.4

1. Amendments to Article 120, UCMJ

There is a conspicuous issue that needs to be addressed related to the 

charges of abusive sexual contact in this case. Had either the kiss or stomach 

touch allegations occurred after the implementation of the Military Justice Act 

of 2016 on 1 January 2019, neither the kiss nor the stomach touch would have 

been an abusive sexual contact crime under Article 120, UCMJ. This is because 

the law changed. Under the 2016 MCM, the definition of abusive sexual contact 

included the touching of any body part of any person. See 2016 MCM, pt. IV, 

¶ 45.b.(8).5 Congress removed this definition, touching of any body part, in the 

 

3 Appellant did not raise as an assignment of error “sentence appropriateness,” nor did 

he raise an issue of cruel and unusual punishment for having to register as a sex offender for these offenses under the Eighth Amendment. U.S. CONST. amend. VIII. Appellant’s convictions, along with the expansion of sex offender requirements since 

United States v. Talkington, 73 M.J. 212 (C.A.A.F. 2014) particularly within the Department of Defense, begs the question as to when do the collateral consequences of 

such convictions look more like a punishment. See United States v. Diaz, 967 F.3d 107, 

111–12 (2d Cir. 2020) (Calabresi, J., concurring) (per curiam) (providing a judicial take 

on the negative effects of sex offender registration).

4 I adopt the law cited by the majority opinion on ineffective assistance of counsel. 

5 Under the 2016 MCM, “sexual contact” means: “(A) touching, or causing another person to touch, either directly or through the clothing, the genitalia, anus, groin, breast, 
United States v. Palacios Cueto, No. ACM 39815

37

National Defense Authorization Act for Fiscal Year 2017 (2017 NDAA), Pub. 

L. No. 114-328, § 5430, 130 Stat. 2000, 2929 (23 Dec. 2016). The Senate Report 

on the 2017 NDAA provides some insight on the removal of this language from 

the definition of “sexual contact.” Although the report did not annotate any 

specific reasoning for the removal of this language, the report noted that “[t]he 

current definition of ‘sexual act’ under Articles 120 and 120b[, UCMJ,] is both 

overly broad (in that it captures non-sexual acts) and unduly narrow (in that 

it does not include all the prohibited acts involving children listed in section 

2246(2)(D)) of title 18.”6 In light of this reasoning, specific body parts are now 

listed in the statute and “stomach” and “mouth” are not included. 

The 2017 NDAA was enacted on 23 December 2016, and the amendments 

to the 2017 NDAA were to take effect on 1 January 2019. However, the President implemented guidance on the amendments in March 2018 through Executive Order 13,825, 2018 Amendments to the Manual for Courts-Martial, 

United States, 83 Fed. Reg. 9889 (8 Mar. 2018), three-and-a-half months before 

Appellant committed his crimes. Unfortunately for Appellant, it took the President nearly 13 months after the NDAA was signed to issue executive guidance 

and another nine months to implement congressional intent. Again, the new 

definition of sexual contact does not list “mouth” or “stomach” as body parts 

that can be touched to gratify the sexual desire of a person. While the Government charged the stomach touch as part of the initial allegation when it preferred the case in March 2019, it added the kiss specification as a charge after 

MT’s SVC requested the Government charge him with that offense at the Article 32, UCMJ, preliminary hearing; all charges, including the kiss specification, were referred to trial in May 2019—after the 2017 NDAA, the President’s 

Executive Order, and implementation of the amended statute went into effect. 

The change in the law as it relates to the charged offenses is important not 

just for the fact Appellant now has a conviction for touching MT’s stomach and 

giving her a kiss; it is because Appellant, presumably, is now registered a sex 

offender. According to the Department of Defense Instruction (DoDI) 1325.07, 

Administration of Military Correctional Facilities and Clemency and Parole 

 

inner thigh, or buttocks of any person, with an intent to abuse, humiliate, or degrade 

any person; or (B) any touching, or causing another person to touch, either directly or 

through the clothing, any body part of any person, if done with an intent to arouse or 

gratify the sexual desire of any person.” Pt. IV, ¶ 45.a.(g)(2). All of section (B) was 

removed from the Manual for Courts-Martial, United States (2019 ed.). See 2019 MCM, 

pt. IV.

6 S. REP. NO. 114-255, at 617 (2016). 
United States v. Palacios Cueto, No. ACM 39815

38

Authority (11 Mar. 2013), the stomach touching charge is a registerable offense.7 As this relates to Appellant’s proceedings, had trial defense counsel addressed this change in the law, at any point in the processing of this case, a 

different outcome very well may have occurred, and there is a possibility Appellant’s maximum confinement exposure would have been reduced, and more 

importantly, he could have possibly averted sex offender registration.8

2. Appellant’s Unsworn Statement and Sex Offender Registration 

 

7 The stomach touching charge carries a Code 120-DF in the Defense Biometric Identification System. See DoDI 1325.07, Table 6, at 84. DoDI 1325.07 makes it clear that 

Appellant will have to register as a sex offender: 

A Service member who is convicted in a general or special court-martial of any of the offenses listed . . . , must register with the appropriate 

authorities in the jurisdiction . . . in which he or she will reside, work, 

or attend school, upon leaving confinement, or upon conviction if not 

confined. 

DoDI 1325.07, App. 4 to encl. 2, ¶ 1, at 79 (emphasis added). Further, the DoDI 

states,

A Service member convicted of any offenses listed . . . or convicted of 

offenses similar to those offenses listed . . . , shall be advised that the 

individual jurisdictions in which the offender might live, work, or attend school may require registration for offenses not listed . . . . Each 

registration jurisdiction sets its own sex offender policy and laws. 

Id., App. 4 to encl. 2, ¶ 3, at 79.

8 The reasonableness of charging Appellant with these allegations is questionable. As 

stated in United States v. Hurd, 

[T]he Government has an inherent, almost-proprietary interest in documenting a service member’s misconduct. It should normally be allowed to do so, except in those rare cases when true prosecutorial overreaching clearly evidences an unreasonable piling on of excessive 

charges, to the point where one “knows it when [he or she] sees it,” . . . .

No. 200101126, 2004 CCA LEXIS 37, at *16–17 (N.M. Crim. Ct. App. 24 Feb. 2004) 

(unpub. op.) (second alteration in original) (citation omitted). In light as to how the 

record unfolded, particularly given the addition of the kiss charge, the charging in this 

case is close to being excessive and unreasonable and exposed Appellant to several 

collateral consequences. The numerous changes to the Manual for Courts-Martial

since 2007, along with the expansion of sex offender registration requirements highlight the importance of discretion in the prosecution of offenses—AFOSI Reports of 

Investigations should not be treated as law school exams and not every alleged wrong 

should be on a charge sheet. The Government has an obligation to monitor statutory 

changes, and not once, but twice, was the Government on notice of the change in the 

law with the 2017 NDAA and the President’s Executive Order.
United States v. Palacios Cueto, No. ACM 39815

39

The change in the law is wholly relevant to Appellant’s unsworn statement. 

Appellant argues it was error on behalf of his trial defense counsel to advise 

him not to reference the consequences of his federal conviction that he would 

be required to register as a sex offender, and in fact, Appellant did not make 

any reference to sex offender registration requirements during his unsworn 

statement. The majority rightfully notes, under United States v. Talkington,

trial defense counsel had no duty to inform the members of matters that are 

an improper consideration for sentencing, much less to do so through their client’s unsworn statement. 73 M.J. 212, 216 (C.A.A.F. 2014) (citations omitted).

In Talkington, the United States Court of Appeals for the Armed Forces held 

that “sex offender registration operates independently of the sentence adjudged and remains a collateral consequence,” and “the requirement that [an 

a]ppellant register as a sexual offender is a consequence of his conviction that 

is separate and distinct from the court-martial process.” 73 M.J. 212, 216–17 

(C.A.A.F. 2006) (citations omitted). 

However, the failure to have Appellant mention this change in the law in 

his unsworn statement could have easily resulted in this court not even opining 

in this case, as perhaps Appellant may have not received a bad-conduct discharge. By failing to mention that the charges he was convicted of are no longer 

sex offenses under Article 120, UCMJ, trial counsel was given ammunition to 

argue what can only be described as an unreasonable sentencing argument

(which will be discussed shortly). 

Trial defense counsel may have had valid strategic reasons for not wanting 

to mention sex offender registration requirements, but we do not know those 

reasons. This court asked for affidavits requesting information on the issue of 

whether the Defense failed to prepare an effective sentencing case. Appellant’s 

civilian defense counsel did not comment on this issue, and his military defense 

counsel stated, “I did not advise [Appellant] to include federal sex offender registration as part of his unsworn statement.” Talkington cautions, and in many 

ways, discourages trial defense counsel from raising sex offender issues, and if 

the subject is brought up, military judges are at liberty to provide an instruction to members that they should not consider this information for sentencing.

73 M.J. at 216. As one would expect, after they began deliberating on a sentence, members did in fact ask the military judge in Appellant’s case, “[W]ill 

he have to register as a sex offender?” The military judge gave members the 

standard Talkington instruction, stating, 

While the accused is permitted to address these matters in an 

unsworn statement, these possible collateral consequences 

should not part [sic] of your deliberations in arriving at a sentence. Your duty [is] to adjudge an appropriate sentence for the 

accused based upon the offenses for which he’s been found guilty, 
United States v. Palacios Cueto, No. ACM 39815

40

that you regard as fair and just when it is imposed, and not one 

whose fairness depends upon actions that others may or may not 

take in this case.

Logically, most people would question how could there be ineffective assistance of counsel in this case when the military judge would have told the members to essentially disregard Appellant’s reference to sex offender registration. 

This is a valid point, but the language in Talkington does not advise military 

judges to instruct members they are to disregard sex offender references, instead, it states: a “military judge ha[s] discretion to ‘temper[ ]’ [an] unsworn 

statement with ‘appropriate instructions.’ ‘While the military judge’s discretion in choosing whether to instruct upon such ‘collateral’ matters is broad, he 

or she is required to give legally correct instructions that are tailored to the 

facts and circumstances of the case.’” 73 M.J. at 217 (citations omitted).

There was no risk for the Defense in asking the military judge to use his 

broad discretion in tailoring an instruction based on the facts and circumstances of this case. Even had the Defense asked for, and been denied, a tailored instruction based on the change in the law as applied to Appellant’s case, 

that ancillary issue could be before us now.9 I subscribe to Chief Judge Baker’s 

concurring view in Talkington, where he states, 

[Sex offender registration] may be the most significantly stigmatizing and longest lasting effect arising from the fact of conviction. Therefore, in my view, it is not good enough to call it collateral and leave it to the members to sort out what to make of it 

based on their own perceived, received, and often erroneous understanding of registration. A tailored and appropriate instruction is required.

73 M.J. at 218 (Baker, C.J., concurring). In this specific case, Appellant’s failure to not mention the change in the law and sex offender registration mattered, as it prevented the military judge from having the opportunity to craft 

a tailored instruction based on this extraordinary issue. 

Appellant was prejudiced in this error, as members were unaware of this 

significant issue and perhaps unreasonably believed Appellant had committed 

serious sex offenses. Sex offender registration may be a collateral consequence, 

 

9 The military judge asked civilian defense counsel about sex offender registration, 

asking, “I noticed that -- at least I didn’t see that you mentioned, . . . sex offender 

registration anywhere in the unsworn, or -- either oral or written. Is that something 

that you were planning on arguing . . . .” Civilian defense counsel responded, “No. No, 

Your Honor.” 
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41

but Appellant’s case exposes a reality that not all sex-related offenses are created the same to warrant such a harsh collateral consequence, particularly 

given Appellant’s crimes are no longer sex offenses under the Government’s 

charging scheme. Despite the majority’s comment that “[t]he owner of an accused’s unsworn statement is that accused,” see United States v. Marcum, 60 

M.J. 198, 209 (C.A.A.F. 2004), given the severity of sex offender registration,

Appellant should have been counseled on this; there was no benefit, nor legitimate strategic reason in failing to do so.10 The failure by Appellant’s trial defense counsel address the change in the law, and/or inclusion of this information in Appellant’s unsworn statement, demonstrated ineffective assistance

of counsel. I respectfully disagree with my colleagues on this assignment of 

error.11

C. Government’s Arguments during Sentencing and on “Justice”

The majority succinctly outlined trial counsel’s comments made about justice, finding portions of trial counsel’s argument amounted to obvious error. 

However, Appellant’s assignment of error also mentions that trial counsel committed prosecutorial misconduct when trial counsel argued that justice would 

only be served if Appellant was convicted and adjudged a sufficient punishment. It is worth looking at the Prosecution’s sentencing argument, where assistant trial counsel continued their theme of justice. 

In terms of a punishment, assistant trial counsel argued, “I would reasonably submit and ask you to enter the government’s recommended sentence of 

two years of confinement, reduction to the grade of E-1, and a dishonorable 

discharge,” and stating, “[W]e can break it down for a year for every abusive 

sexual contact. We’re not over-asking, we’re not over-reaching to try to bargain.” 

(Emphasis added). Assistant trial counsel went on to say, “[Appellant] needs a 

significant amount of confinement time that’s going to be -- that will be commensurate with the seriousness of the offenses here,” and “the government, 

trial counsel, we sincerely hope that two years of confinement will provide him 

with the necessary tools he needs to reintegrate back to society. And we are 

 

10 In Appellant’s clemency, Appellant did advise the convening authority that the 

crimes of which he was found guilty were no longer sex offenses.

11 Further, regarding ineffective assistance of counsel, in his unsworn statement, Appellant stated he was a Peruvian immigrant.. There are two obvious questions not 

raised in the record: what was Appellant’s immigration status at the time of trial, and, 

if he was not a citizen, whether a bad-conduct discharge and conviction would result 

in deportation. If this was an issue, and Appellant’s counsel did not at least address 

this, it may have had an effect on sentence appropriateness at our level and additional 

ineffective assistance of counsel considerations. 
United States v. Palacios Cueto, No. ACM 39815

42

not even near seeking the maximum amount of confinement time here, which 

again, is 14 years.” Assistant trial counsel also stated, 

This is not an 18-year-old slick-sleeved [A]irman living in the 

dorms. And you cannot correct 34 years of learning bad behavior 

in just a few months, or even a couple years. But yet, we are still 

giving him the benefit of the doubt with asking for two years of 

confinement. He needs confinement long enough to learn to 

change his ways going forward.

Assistant trial counsel referred to Appellant as a “predator” 11 times and 

concluded the argument stating, “A sufficient punishment that will bring justice here to this case, and that will bring some form of closure to [MT] for all 

that she has [ ] endured in this year-and-a half nightmare . . . [is] two years of 

confinement, reduction to the grade of E-1, and a dishonorable discharge.”

Civilian defense counsel did not object to assistant trial counsel’s argument. We review prosecutorial misconduct and improper argument de novo. 

United States v. Voorhees, 79 M.J. 5, 9 (C.A.A.F. 2019) (citation omitted), cert. 

denied, 140 S. Ct. 2566 (2020). When no objection is made at trial, we review 

for plain error. United States v. Andrews, 77 M.J. 393, 398 (C.A.A.F. 2018) (citations omitted). “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 401 (quoting Fletcher, 62 M.J. at 179). We do not 

review counsel’s words in isolation; we review the argument in context of the 

entire court-martial. United States v. Baer, 53 M.J. 235, 238 (C.A.A.F. 2000) 

(citations omitted). If we find a prosecutor’s argument “amounted to clear, obvious error,” we then determine “whether there was a reasonable probability 

that, but for the error, the outcome of the proceeding would have been different.” Voorhees, 79 M.J. at 9 (internal quotations marks and citations omitted). 

It is improper for trial counsel to make arguments that “unduly . . . inflame the 

passions or prejudices of the court members.” United States v. Frey, 73 M.J 

245, 248 (C.A.A.F. 2014) (quoting United States v. Marsh, 70 M.J. 101, 102 

(C.A.A.F. 2011)).

When you look at both closing and sentencing arguments, both trial counsel 

were undeniably trying to inflame the passions of the members. “Thirty-four 

years of learning bad behavior?” This comment was made despite the fact that 

during his unsworn statement, Appellant told the court he was a Peruvian immigrant, with a college degree in economics, who joined the Air Force in 2017 

as he “wanted to earn the privilege to be here by serving in the military.” There 

was no evidence – none – of a lifetime of “bad behavior.” One only needs to look 

at how the Prosecution viewed “justice” in this case by looking at their own 

sentence recommendation for a half-second kiss and an indeterminate stomach 

touching. The moment trial counsel tried to rationalize the recommendation, 
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43

any seasoned military justice practitioner would see the Government was in 

fact over-reaching and trying to bargain with the members by asking for an 

unreasonably high sentence in the hopes it would drive up the ultimate sentence adjudged by the members. A dishonorable discharge and a year in jail for 

a peck on the lips, and another year in jail for touching MT’s stomach (with no 

context), indicates trial counsel were not seeking a punishment based on the 

offenses of which Appellant was convicted; they were seeking a punishment as 

if to save face for losing the gravamen offense. “[E]very attorney in a courtmartial has a duty to uphold the integrity of the military justice system.” 

United States v. Voorhees, 79 M.J. 5, 15 (C.A.A.F. 2019) (citation omitted). In 

reviewing this case de novo, it is debatable whether those prosecuting this case 

understood the meaning of reasonableness or justice, as this was an unfathomable recommendation based on the crimes of which Appellant was convicted 

and a recommendation of this sort challenged the integrity of our system. I find 

there was plain error with both trial counsel arguments, and given that Appellant was adjudged a bad-conduct discharge, I believe those arguments materially prejudiced Appellant, as there is a reasonable probability that the outcome 

of the proceeding would have been different had trial counsel not committed 

error. 

In his closing argument, trial counsel admonished the members, “You will 

have the ultimate decision on . . . whether justice will be served, or whether the 

accused will be acquitted,” as if to say an acquittal would not be justice. Civilian 

defense counsel responded these are “words that should never come out of a 

prosecutor’s mouth;” I agree. The majority commented that “‘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.” Unfortunately for Appellant, looking at his case as a whole, I question whether “justice” has been

served. 

I respectfully dissent.

FOR THE COURT

CAROL K. JOYCE

Clerk of the Court