This opinion is subject to revision before publication 

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

_______________ 

UNITED STATES 

Appellee 

v. 

Raiden J. ANDREWS, 

Quartermaster Seaman Apprentice 

United States Navy, Appellant 

No. 17-0480 

Crim. App. No. 201600208 

Argued February 28, 2018—Decided May 22, 2018 

Military Judge: Heather D. Partridge 

For Appellant: Lieutenant Commander Jacob E. Meusch, 

JAGC, USN (argued); Rebecca Snyder, Esq.

For Appellee: Captain Sean M. Monks, USMC (argued); 

Colonel Valerie C. Danyluk, USMC, Major Kelli A. O’Neil, 

USMC, and Brian K. Keller, Esq. (on brief). 

Judge SPARKS delivered the opinion of the Court, in 

which Chief Judge STUCKY, and Judges RYAN, 

OHLSON, and MAGGS, joined. 

_______________

Judge SPARKS delivered the opinion of the Court. 

A panel with enlisted representation sitting as a general 

court-martial convicted Appellant, contrary to his pleas, of 

one specification of sexual assault in violation of Article 120, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920 

(2012). The panel acquitted Appellant of two other 

specifications of sexual assault. Appellant was also 

convicted, pursuant to his pleas, of unauthorized absence, 

fleeing from apprehension, false official statement, use of 

marijuana, and larceny in violation of Articles 86, 95, 107, 

112a, and 121, UCMJ, 10 U.S.C. §§ 886, 895, 907, 912a, 921 

(2012). 

The members sentenced Appellant to reduction to E-1, 

thirty-six months of confinement, forfeitures of $1,616.00 

per month for thirty-six months, and a dishonorable 

discharge. The convening authority changed the forfeiture 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

2 

amount to $1,566.90,1 but approved the rest of the sentence 

as adjudged. The United States Navy-Marine Corps Court of 

Criminal Appeals affirmed the findings and sentence, 

holding portions of trial counsel’s final argument contained 

severe, but non-prejudicial prosecutorial misconduct. United 

States v. Andrews, No. NMCCA 201600208, 2017 CCA 

LEXIS 283, at *31, 2017 WL 1506072, at *13 (N-M. Ct. 

Crim. App. Apr. 27, 2017). We granted review to determine 

whether the lower court erred.2

In its brief, the Government argued the lower court erred 

when it applied our precedent to review prosecutorial 

misconduct for plain error, contending the lower court 

should have held Appellant waived appellate review of 

prosecutorial misconduct when his defense counsel failed to 

object at trial. 

We hold: (1) the lower court was correct to review for 

plain error, and (2) trial counsel’s statements amounted to 

plain, obvious error, but there was no material prejudice to 

Appellant’s substantial rights. 

Background 

In May 2014, Appellant attended a party hosted by Petty 

Officer (PO) Eric Krueger and his then wife, Rose Wade. PO 

Jake Hills, PO Alejandro Garcia, PO Joshua Jones, his 

wife—Sarah Garza—and AB—Ms. Wade’s civilian friend—

also attended the party. 

The party began with drinks at the beach, where AB 

drank two Mike’s Hard Lemonades. Appellant told Naval 

Criminal Investigative Service (NCIS) he and PO Krueger 

joked about Appellant potentially “get[ting] lucky with AB.” 

PO Krueger, however, testified he told Appellant not to 

“hook up” with AB after Appellant asked about sleeping 

 1 A sentence forfeiture must “state the exact amount in whole 

dollars to be forfeited.” Rule for Courts-Martial (R.C.M.) 

1003(b)(2). This aspect of the sentence should be corrected to a 

whole dollar amount. 

2 The specific granted issue is, “The lower court found severe 

prosecutorial misconduct. Then it affirmed the findings and 

sentence, giving its imprimatur to the prosecutorial misconduct in 

Appellant’s case. Did the lower court err?” 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

3 

with her. PO Krueger told Appellant AB had recently had 

sex with PO Hills. 

The party moved to PO Krueger’s house. AB testified she 

arrived at the house with both her own alcohol and a change 

of clothing, intending to sleep over. PO Krueger and Ms. 

Wade testified AB arrived with ingredients to prepare mixed 

drinks. They both testified AB drank her prepared mixed 

drinks all night. AB, however, never reported drinking any 

mixed drinks. She told NCIS she had eight drinks on the 

night of the party, but testified at trial that she had about 

fifteen drinks, including Redd’s Apple Ale, beer, and more 

Mike’s Hard Lemonade. Ms. Wade testified AB drank three 

quarters of a two-liter bottle of the mixed drinks AB 

reportedly brought to the party, and said she had never seen 

AB so drunk. She said AB was “[p]retty intoxicated.... 

stumbling, slurring words, [and was] trying to use the wall 

to stand up.” PO Krueger testified AB was drinking beers, 

had “more than three” of her mixed drinks, and was getting 

“drunk pretty fast.” Ms. Garza described AB as “trashed,” 

said she was stumbling, had poor balance, and was not 

responsive. PO Jones testified AB appeared intoxicated, was 

slurring her speech and swaying back and forth, and did not 

seem sober. He said AB appeared to become more 

intoxicated as the night wore on and, by midnight, AB was 

slouched on the couch and was barely coherent. By the end 

of the night AB felt “very numb,” could not feel her limbs, 

and had to crawl against the wall to support herself. 

Appellant and AB had only three brief interactions 

before the party ended, one of which involved Appellant 

asking AB whether she was going to finish her drink.3 PO 

Krueger witnessed at least one of these interactions and 

described AB as “standoffish.” 

Appellant watched Ms. Wade help AB to her spare 

bedroom to sleep, and told NCIS AB was drunk when she 

went to bed. Once in the spare room AB undressed to her 

underwear and a tank top, plugged her phone in, got into 

bed, and then immediately “pass[ed] out.” Ms. Wade left the 

room once she believed AB was asleep. 

 3 Rather than responding orally, AB finished her drink. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

4 

The party ended around 12:30 a.m. PO Krueger told 

Appellant not to sleep in the spare room—with AB—after 

Appellant asked if he could. When Ms. Wade saw Appellant 

try to enter the spare bedroom she said “[d]o not go in there 

... you are on the couch.” After seeing Appellant get on the 

couch and cover himself with blankets, Ms. Wade retreated 

to her own bedroom. 

Appellant and AB offered drastically different accounts 

of what happened next. AB testified she awoke to pressure 

on her hips and upper thighs. She said she was “startled ... 

awake” by the weight, could see from the light outside 

someone was on top of her, and realized immediately it was 

Appellant. AB said she yelled stop three times, pushed 

Appellant off of her, and then passed out again. AB testified 

she was unsure whether Appellant penetrated her vulva 

with his penis, but denied consenting to any sexual activity 

with Appellant and said she would not have consented had 

she been awake. 

Appellant told NCIS he entered the spare room hoping to 

“get lucky” and became sexually aroused at the thought of 

having sex with AB. Appellant said he and AB lay in bed 

together for ten to fifteen minutes—neither kissing nor 

having any physical interaction—before they began having 

sex. Appellant initially told NCIS AB was awake when he 

entered the spare room and said she vomited before orally 

consenting to having sex and undressing herself.4 He told 

NCIS he “didn’t care” AB had just vomited. Appellant said 

AB was responsive during their intercourse and moaned and 

scratched his back.5 Appellant said AB touched his hair and 

then told him to stop, at which point he immediately 

complied. 

Around 4:00 a.m., AB fled the spare room and awoke PO 

 4 Appellant maintained his assertion that AB was awake when 

he entered the room both during a wired conversation with PO 

Krueger and throughout most of his NCIS interrogation. After 

NCIS pressed Appellant, he admitted it was possible AB was 

asleep or passed out. 

5 PO Krueger corroborated the presence of scratches on 

Appellant’s back. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

5 

Krueger and Ms. Wade. Both PO Krueger and Ms. Wade 

testified AB was crying and said she had been assaulted. AB 

threw up again before falling back asleep in Ms. Wade’s 

room. 

Discussion 

I. Prosecutorial Misconduct 

A. The Proper Standard of Review 

The following is well established in our case law. We 

review prosecutorial misconduct and improper argument de 

novo. United States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017). 

If proper objection is made, we review for prejudicial error. 

United States v. Fletcher, 62 M.J. 175, 179 (C.A.A.F. 2005) 

(citing Article 59, UCMJ, 10 U.S.C. § 859 (2000)). If no 

objection is made, we hold the appellant has forfeited his 

right to appeal and review for plain error.6 Id.; Sewell, 76 

M.J. at 18. The burden of proof under plain error review is 

on the appellant. Sewell, 76 M.J. at 18. 

The Government relies on United States v. Ahern, 76 

M.J. 194 (C.A.A.F. 2017), to argue we should depart from 

precedent and interpret R.C.M. 919(c) to say a defense 

counsel’s mere failure to timely object to improper argument 

constitutes waiver. The Government’s position is consistent 

with a series of Army Court of Criminal Appeals’ decisions 

holding that R.C.M. 919(c) is a waiver provision. See, e.g., 

United States v. Kelly, 76 M.J. 793 (A. Ct. Crim. App. 2017); 

United States v. Sanchez, No. ARMY 20140735, 2017 CCA 

LEXIS 470, 2017 WL 3037442 (A. Ct. Crim. App. July 17, 

2017); United States v. Burris, No. ARMY 20150047, 2017 

CCA LEXIS 315, 2017 WL 1946326 (A. Ct. Crim. App. May 

8, 2017); United States v. Marcum, No. ARMY 20150500, 

2017 CCA LEXIS 312, 2017 WL 1857232 (A. Ct. Crim. App. 

May 5, 2017).7

 6 We first considered R.C.M. 919(c) a forfeiture provision in 

United States v. Burks, in which we conflated the terms “waiver” 

and “plain error.” 36 M.J. 447, 452 n.3 (C.M.A. 1993). 

7 In United States v. Motsenbocker, the United States NavyMarine Corps Court of Criminal Appeals abided by our precedent 

and applied forfeiture to un-objected to prosecutorial misconduct. 

No. NMCCA 201600285, 2017 CCA LEXIS 539, 2017 WL 4640030 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

6 

“Deviation from a legal rule is ‘error’ unless the rule has 

been waived.” United States v. Girouard, 70 M.J. 5, 10 

(C.A.A.F. 2011) (internal quotation marks omitted) (citation 

omitted). “While this Court reviews forfeited issues for plain 

error, we do not review waived issues because a valid waiver 

leaves no error to correct on appeal.” Ahern, 76 M.J. at 197 

(citations omitted). 

Affirming the lower court’s application of waiver would 

require us to overturn Fletcher and its progeny. Under the 

doctrine of stare decisis, we decline to do so. 

 Stare decisis is defined as [t]he doctrine of 

precedent, under which a court must follow earlier 

judicial decisions when the same points arise again 

in litigation. The doctrine encompasses at least 

two distinct concepts ... : (1) “an appellate court[] 

must adhere to its own prior decisions, unless it 

finds compelling reasons to overrule itself” 

(horizontal stare decisis); and (2) courts “must 

strictly follow the decisions handed down by higher 

courts” (vertical stare decisis). 

United States v. Quick, 74 M.J. 332, 343 (C.A.A.F. 2015) 

(Stucky, J., joined by Ohlson, J., dissenting) (brackets in 

original) (citations omitted). 

“[A]dherence to precedent is the preferred course because 

it promotes the evenhanded, predictable, and consistent 

development of legal principles, fosters reliance on judicial 

decisions, and contributes to the actual and perceived 

integrity of the judicial process.” United States v. Blanks, 77 

M.J. 239, 242 (C.A.A.F. 2018) (internal quotation marks 

omitted) (quoting United States v. Sills, 56 M.J. 239, 241 

(C.A.A.F. 2002) (per curiam)). We will not overturn 

“precedent ... [that] has been treated as authoritative for a 

long time .... unless the most cogent reasons and 

inescapable logic require it.” 20 Am. Jur. 2d Courts § 127, 

Westlaw (database updated May 2018) (footnotes omitted). 

Stare decisis is “most compelling where courts undertake 

 

(N-M. Ct. Crim. App. Oct. 17, 2017). The Motsenbocker court 

followed the correct approach. See United States v. Davis, 76 M.J. 

224, 228 n.2 (C.A.A.F. 2017) (explaining “the services courts of 

criminal appeals must adhere to this Court’s precedent even when 

they believe that subsequent decisions call earlier decisions into 

question” (citation omitted)). 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

7 

statutory construction,” as we are here. United States v. 

Rorie, 58 M.J. 399, 406 (C.A.A.F. 2003) (citations omitted). 

The party requesting that we overturn precedent bears “a 

substantial burden of persuasion.” 20 Am. Jur. 2d, supra,

§ 127. 

Applying stare decisis is, however, “not an inexorable 

command.” Blanks, 77 M.J. at 242 (internal quotation marks 

omitted) (quoting United States v. Falcon, 65 M.J. 386, 390 

(C.A.A.F. 2008)). We are not bound by precedent where 

“there has been a significant change in circumstances after 

the adoption of a legal rule, or an error in legal analysis,”

and we are “willing to depart from precedent when it is 

necessary to vindicate plain, obvious principles of law and 

remedy continued injustice.” 20 Am. Jur. 2d, supra, § 127. 

“We consider the following factors in evaluating the 

application of stare decisis: whether the prior decision is 

unworkable or poorly reasoned; any intervening events; the 

reasonable expectations of servicemembers; and the risk of 

undermining public confidence in the law.” Blanks, 77 M.J. 

at 242 (internal quotation marks omitted) (citation omitted). 

Even if these factors weigh in favor of overturning longsettled precedent, “we [still] require ‘special justification,’ 

not just an argument that the precedent was wrongly 

decided.” Halliburton Co. v. Erica P. John Fund, Inc., 134 S. 

Ct. 2398, 2407 (2014); see also Dickerson v. United States, 

530 U.S. 428, 443 (2000); Blanks, 77 M.J. at 242 (citations 

omitted); Kurt T. Lash, The Cost of Judicial Error: Stare 

Decisis and the Role of Normative Theory, 89 Notre Dame L. 

Rev. 2189, 2189 (2014) (“The prudential doctrine of stare 

decisis is meant to ameliorate these costs by counseling 

judicial adherence to precedent even in those cases where a 

judge believes the prior decision was wrong.” (emphasis 

added) (citation omitted)). 

Applying each of these factors to R.C.M. 919(c) and 

considering general stare decisis jurisprudence, we are 

compelled to uphold Fletcher and to continue to review unobjected to prosecutorial misconduct and improper argument 

for plain error. 

1. Whether Fletcher is unworkable or poorly reasoned 

“Under the doctrine of stare decisis, the question is not 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

8 

whether the interpretation [at issue] is plausible; it is 

whether the ... decision is so unworkable or poorly reasoned 

that it should be overruled.” United States v. Tualla, 52 M.J. 

228, 231 (C.A.A.F. 2000). In Fletcher, we applied forfeiture 

to review un-objected to prosecutorial misconduct for plain 

error, notwithstanding the R.C.M. 919(c) language that, 

“Failure to object to improper argument before the military 

judge begins to instruct the members on findings shall 

constitute waiver of the objection.” 62 M.J. at 179 (emphasis 

added); R.C.M. 919(c) (emphasis added). “[C]ourts must give 

effect to the clear meaning of statutes as written” and 

questions of statutory interpretation should “begin and end 

... with [statutory] text, giving each word its ordinary, 

contemporary, and common meaning.” Star Athletica, L.L.C. 

v. Varsity Brands, Inc., 137 S. Ct. 1002, 1010 (2017) 

(internal quotation marks omitted) (citations omitted); see 

also United States v. Schell, 72 M.J. 339, 343 (C.A.A.F. 2013) 

(“Unless the text of a statute is ambiguous, the plain 

language of a statute will control unless it leads to an 

absurd result.” (internal quotation marks omitted) (citation 

omitted)). Thus, “[a]s a first step in statutory construction, 

we are obligated to engage in a ‘plain language’ analysis of 

the relevant statute,” United States v. Tucker, 76 M.J. 257, 

258 (C.A.A.F. 2017), and to “apply the common and ordinary 

understanding of the words in the statute.” United States v. 

Phillips, 70 M.J. 161, 165 (C.A.A.F. 2011).8 Without 

question, R.C.M. 919(c) says “waiver” and does not mention 

“forfeiture.” 

We are, however, not convinced this acknowledgment 

requires us to overturn any case law. Although the United 

States Supreme Court has “from time to time ... overruled 

governing decisions that are unworkable or are badly 

reasoned, [it has] rarely done so on grounds not advanced by 

the parties” and has declined to do so where the petitioning 

party has failed to establish unworkability. United States v. 

International Business Machines Corp., 517 U.S. 843, 856 

(1996) (internal quotation marks omitted) (citations 

 8 We apply these principles when we interpret the rules and 

other provisions in the Manual for Courts-Martial, United States

(MCM) as well. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

9 

omitted). The Government has only argued Fletcher ignored 

R.C.M. 919(c)’s plain language and has neither established 

that Fletcher is now unworkable nor has it advanced any 

argument to that effect.9 We decline to make this argument 

for the Government, and in any case, we find the majority of 

the remaining factors weigh in favor of applying stare 

decisis to uphold Fletcher. 

2. Any intervening events 

When a court is “clearly convinced that [precedent] ... is 

no longer sound because of changing conditions and that 

more good than harm will come by departing from 

precedent, [the Court is] not inexorably bound by [its] own 

precedents.” State v. Mauchley, 67 P.3d 477, 481 (Utah 2003) 

(first alteration in original) (internal quotation marks 

omitted) (citation omitted). The Government argues our 

decision in Ahern constitutes a change requiring departure 

from precedent. Ahern is distinguishable from this case in 

the following respects. First, while this case concerns R.C.M. 

919(c), Ahern involved Military Rule of Evidence 304. 76 

M.J. at 197. Second, issues relating to closing arguments are 

altogether different from the evidentiary issue in Ahern that 

arose during the pretrial stage, when defense counsel had 

ample opportunity to object. Id. at 195–98. Third, while 

Appellant’s counsel failed to object here, Ahern’s defense 

counsel repeatedly affirmatively waived objection to the 

 9 While Fletcher’s application of forfeiture remains workable, 

applying waiver instead of forfeiture would render much of 

Fletcher’s prejudice analysis unworkable where, as here, defense 

counsel objected to some misconduct. In Fletcher, we applied three 

factors to determine whether prosecutorial misconduct was 

prejudicial, the first of which was the severity of the misconduct. 

62 M.J. at 184. To determine how severe the misconduct was, we 

applied five more factors, including “(1) the raw numbers—the 

instances of misconduct as compared to the overall length of the 

argument, [and] (2) whether the misconduct was confined to the 

trial counsel’s rebuttal or spread throughout the findings 

argument or the case as a whole.” Id. Were we to hold Appellant 

waived the misconduct his counsel did not object to, we would 

have to review the one instance of objected-to misconduct in a 

vacuum. To do so would be unjust and illogical, as it would result 

in an inaccurate evaluation of the prejudicial effect of trial 

counsel’s arguments. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

10 

evidence at issue. Id. at 196–98. Consequently, Ahern by 

itself is not the type of changed condition or intervening 

event necessitating a departure from precedent. Cf. United 

States v. Boyett, 42 M.J. 150, 155 (C.A.A.F. 1995) (explaining 

“significant changes in the structure and organization of the 

armed forces” and changes in military regulations 

warranted a departure from precedent); Mauchley, 67 P.3d 

at 481–86 (deciding an old evidentiary rule should be 

overturned where “the federal courts and a growing number 

of state courts” had adopted a new rule). Thus far, there 

have been no changes in regulation, rule, or military 

structure necessitating the application of waiver in this 

case.10

3. The reasonable expectations of servicemembers 

We concede servicemembers have not relied on Fletcher

in any way that would compel us to continue to interpret 

R.C.M. 919(c) as a forfeiture provision. 

4. The risk of undermining public confidence in the law 

Just as overturning precedent can undermine confidence 

in the military justice system, upholding precedent tends to 

bolster servicemembers’ confidence in the law. See Henry 

Paul Monaghan, Stare Decisis and Constitutional 

Adjudication, 88 Colum. L. Rev. 723, 753 (1988) (“If courts 

are viewed as unbound by precedent, and the law as no more 

than what the last Court said, considerable efforts would be 

expended to get control of such an institution—with judicial 

independence and public confidence greatly weakened.”). 

This is especially true where, as here, the precedent involves 

appellate review of prosecutorial misconduct—an issue that 

may, on its own, undermine confidence in the military 

justice system. See United States v. Olsen, 737 F.3d 625, 632 

 10 There has, however, been a change to the military justice 

system weighing in favor of upholding Fletcher. Effective January 

1, 2019, R.C.M. 919(c) will read “Failure to object to improper 

argument before the military judge begins to instruct the 

members on findings shall constitute forfeiture of the objection.” 

Exec. Order No. 13,825, 83 Fed. Reg. 9889 (Mar. 8, 2018) 

(emphasis added). While this modification has no direct impact on 

this case, it would be frivolous to overturn fifteen years of 

precedent for an eight-month period. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

11 

(9th Cir. 2013) (order denying petition for rehearing en 

banc) (Kozinski, C.J., joined by Pregerson, J., Reinhardt, J., 

Thomas, J.; Watford, J., dissenting) (explaining 

prosecutorial misconduct “erodes the public’s trust in our 

justice system, and chips away at the foundational premises 

of the rule of law”). 

5. Whether any special justification weighs in favor of 

overturning Fletcher

Finally, the Government advances no “special 

justification” requiring us to depart from precedent, nor can 

we conceive of one. Overturning Fletcher to hold un-objected 

to improper argument must be waived absent a special 

justification would allow this form of prosecutorial 

misconduct to persist, largely unchecked, and would thus 

risk egregious harm to our justice system. Cf. Payne v. 

Tennessee, 501 U.S. 808, 834 (1991) (Scalia, J., joined as to 

Part II by O’Connor, J., and Kennedy, J., concurring) 

(arguing a special justification should not be required to 

overturn precedent that “significantly harms our criminal 

justice system and is egregiously wrong”) (emphasis added)). 

In any case, given that the Government failed to provide 

a special justification or advance any argument beyond 

Fletcher wrongly interpreting R.C.M. 919(c), and that four of 

the five above factors weigh in favor of upholding Fletcher, 

we conclude that Appellant forfeited his challenge to trial 

counsel’s improper argument. 

B. Plain Error 

“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.” Fletcher, 62 

M.J. at 179 (citations omitted). 

Appellant’s defense counsel only objected to one instance 

of misconduct. Technically we review that instance of 

misconduct as preserved error, while we review the 

remainder of the asserted improper argument for plain 

error. Both standards, however, culminate with an analysis 

of whether there was prejudicial error. See Sewell, 76 M.J. 

at 18 (“In either case, reversal is warranted only ‘when the 

trial counsel’s comments taken as a whole were so damaging 

that we cannot be confident that the members convicted the 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

12 

appellant on the basis of the evidence alone.’ ” (quoting 

United States v. Hornback, 73 M.J. 155, 160 (C.A.A.F. 

2014))). 

“Trial prosecutorial misconduct is behavior by the 

prosecuting attorney that ‘oversteps the bounds of that 

propriety and fairness which should characterize the 

conduct of such an officer in the prosecution of a criminal 

offense.’ ” Fletcher, 62 M.J. at 178 (quoting Berger v. United 

States, 295 U.S. 78, 84 (1935)). “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). Prosecutors 

have a “duty to refrain from improper methods calculated to 

produce a wrongful conviction.” Berger, 295 U.S. at 88. 

“While prosecutorial misconduct does not automatically 

require a new trial or the dismissal of the charges against 

the accused, relief will be granted if the trial counsel’s 

misconduct ‘actually impacted on a substantial right of an 

accused (i.e., resulted in prejudice).’ ” Fletcher, 62 M.J. at 

178 (quoting Meek, 44 M.J. at 5). 

At Appellant’s court-martial, trial counsel advanced a 

theory of the case revolving around the idea Appellant was a 

scheming liar who went into AB’s room on the night of the 

party hoping she would mistake him for PO Hills and 

unwittingly consent to having sex with him. Appellant now 

contends portions of trial counsel’s argument amounted to 

prejudicial prosecutorial misconduct. Appellant specifically 

complains trial counsel: 

1. Repeatedly and consistently made inflammatory and 

disparaging statements, from calling Appellant a liar more 

than twenty-five times to referring to him as “Don Juan”; 

2. Accused defense counsel of not believing Appellant’s 

version of events; 

3. Misstated the law when he analogized consenting to sex to 

enlisting in the Navy or having plastic surgery; and 

4. Thrice quoted or referred to a wholly fabricated admission. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

13 

Before determining whether Appellant was prejudiced, 

we must ask whether trial counsel’s arguments amounted to 

plain or obvious error—or whether they were improper 

arguments—in the first place. See Fletcher, 62 M.J. at 179–

84 (analyzing whether each instance of alleged misconduct 

was error). Rather than engage in a long and searching 

analysis of whether each complained-of statement was an 

improper argument, we adopt the lower court’s conclusion 

that the prosecutorial misconduct in this case amounted to 

plain and obvious error. Andrews, 2017 CCA LEXIS 283, at 

*16–23, *26–27, 2017 WL 1506072, at *7–9, *11. 

II. Prejudice 

“[I]t is not the number of legal norms violated but the 

impact of those violations on the trial which determines the 

appropriate remedy for prosecutorial misconduct.” Meek, 44 

M.J. at 6. “In assessing prejudice, we look at the cumulative 

impact of any prosecutorial misconduct on the accused’s 

substantial rights and the fairness and integrity of his trial.” 

Fletcher, 62 M.J. at 184 (citation omitted). We weigh three 

factors to determine whether trial counsel’s improper 

arguments were prejudicial: “(1) the severity of the 

misconduct, (2) the measures adopted to cure the 

misconduct, and (3) the weight of the evidence supporting 

the conviction.” Id. “[T]he third factor [alone] may so clearly 

favor the government that the appellant cannot demonstrate 

prejudice.” Sewell, 76 M.J. at 18. Again, we agree with the 

lower court that there was severe prosecutorial misconduct, 

and we too conclude the weight of the evidence favors the 

Government such that Appellant cannot establish prejudice. 

In Fletcher, we applied five factors to determine how 

severe the prosecutorial misconduct was. 62 M.J. at 184. 

Applying those factors to the instant case, we find trial 

counsel’s misconduct was severe because: (1) it occurred 

with alarming frequency; (2) it persisted throughout the 

entirety of trial counsel’s closing argument, including 

through the rebuttal; (3) the entire trial was five days long 

and the trial on the merits lasted for only three days; (4) the 

panel deliberated for less than three hours before convicting 

Appellant; and (5) the military judge issued just one ruling 

for trial counsel to abide by and trial counsel failed to do so. 

All five factors indicate the misconduct was severe. 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

14 

Next, the military judge’s failure to offer any specific, 

timely curative instructions also weighs in favor of finding 

prejudice. When defense counsel requested an instruction as 

an alternative to moving for a mistrial, the military judge 

seemed to agree there was error, but declined to take any 

curative action. The only instructions she gave were 

standard Military Judges’ Benchbook instructions and were 

given after the close of trial, before deliberation. 

Although the first two factors weigh in Appellant’s favor, 

the evidence “so clearly favor[s] the government that 

[Appellant] cannot demonstrate prejudice.” Sewell, 76 M.J. 

at 18. In Hornback, we held the third factor was dispositive 

where two witnesses testified they watched the appellant 

commit the crime charged. 73 M.J. at 161. In Sewell, we held 

the third factor to be dispositive where the appellant 

admitted to being at the scene of the crime in “compromising 

circumstances.” 76 M.J. at 19. In this case, as in Hornback 

and Sewell, there were multiple corroborating witnesses and 

Appellant admitted to being at the party in bed with AB. 

To have convicted Appellant of sexual assault under 

Article 120(b)(3), UCMJ, the panel must have found: (1) 

Appellant committed a sexual act upon AB by penetrating 

her vulva with his penis while (2) AB was too intoxicated to 

consent, and (3) Appellant “knew or reasonably should have 

known” AB was too intoxicated to consent. MCM pt. IV, 

para. 45.b.(3)(f) (2016 ed.) (emphasis added). 

Regardless of trial counsel’s improper arguments, there 

was ample evidence in support of all three elements. First, 

during his recorded interrogation, Appellant told NCIS he 

had sex with AB and discussed the intercourse with PO 

Krueger while PO Krueger was wearing a wire for NCIS. 

Defense counsel also conceded as much at trial when he 

argued that AB consented to the sex because she thought 

Appellant was PO Hills. Second, there was no dispute at 

trial that AB was drinking and was intoxicated. Although 

there was some discrepancy as to what and exactly how 

much AB drank, she, along with almost every other party 

attendee, testified she was drinking heavily and consistently 

all night, and Appellant told NCIS AB was drunk. There 

was compelling evidence, in addition to the sheer amount of 

liquor AB consumed, that she was too drunk to be capable of 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

15 

consent. Namely, AB was so drunk she lost consciousness, 

could not physically support herself, lost feeling in her 

limbs, and vomited at least twice. Finally, Appellant either 

knew or, at least reasonably should have known, AB was 

incapable of consenting. Everyone else at the party knew AB 

was extremely intoxicated—they described her as “trashed” 

and “incoherent,” and said she was slurring her words and 

could not stand up. Appellant was at the party with AB all 

day. He watched Ms. Wade help AB to the spare room. He 

ignored PO Krueger and Ms. Wade’s instructions not to 

enter the spare bedroom. He lay next to AB for fifteen 

minutes before they had intercourse, during which time AB 

was largely if not wholly unresponsive. He watched AB 

vomit in the bed before they had sex. Appellant met AB on 

the day of the assault and they barely interacted at the 

party. Appellant had every reason to suspect AB was too 

intoxicated to consent and no reason to believe AB would 

knowingly consent to having sex with him. 

Accordingly, we conclude the evidence against Appellant 

was so strong we are “confident that the members convicted 

the appellant on the basis of the evidence alone.” Fletcher, 

62 M.J. at 184. There was, therefore, no prejudice to 

Appellant’s substantial rights. 

Despite our finding of no prejudice, the prosecutorial 

conduct in this case raises concerns we feel compelled to 

address. We remind all military judges of their “sua sponte 

duty to insure [sic] that an accused receives a fair trial.” 

United States v. Watt, 50 M.J. 102, 105 (C.A.A.F. 1999) 

(internal quotation marks omitted) (citation omitted); see 

also United States v. Knickerbocker, 2 M.J. 128, 129 (C.M.A. 

1977) (“At the very least, the judge should have interrupted 

the trial counsel before he ran the full course of his 

impermissible argument.”). Military judges are neither 

“mere figurehead[s]” nor are they “umpire[s] in a contest 

between the Government and accused.” Watt, 50 M.J. at 105 

(internal quotation marks omitted) (quoting United States v. 

Kimble, 23 C.M.A. 251, 253, 49 C.M.R. 384, 386 (1974)). Nor 

can a defense counsel sit like a bump on a log—he or she 

owes a duty to the client to object to improper arguments 

early and often. See DeFreitas v. State, 701 So.2d 593, 602 

(Fla. Dist. Ct. App. 1997) (explaining the court is unlikely to 
United States v. Andrews, No. 17-0480/NA 

Opinion of the Court 

16 

“excuse counsel for his failure” to object because a defense 

counsel “has the duty to remain alert to such things in 

fulfilling his responsibility to see that his client receives a 

fair trial”). Failure to do so may give rise to meritorious 

ineffective assistance of counsel claims. See F. Emmit 

Fitzpatrick & NiaLena Caravasos, Ineffective Assistance of 

Counsel, 4 Rich. J.L. & Pub. Int., 67, 81 (2000) (listing 

federal cases in which the circuit courts found ineffective 

assistance of counsel for failure to object (citing Williams v. 

Washington, 59 F.3d 673, 684 (7th Cir. 1995); Henry v. 

Scully, 78 F.3d 51, 52–53 (2d Cir. 1996); Bolander v. Iowa, 

978 F.2d 1079, 1083–84 (8th Cir. 1992); Crotts v. Smith, 73 

F.3d 861, 867 (9th Cir. 1996); Atkins v. Attorney General of 

Alabama, 932 F.2d 1430, 1432 (11th Cir. 1991); and Mason 

v. Scully, 16 F.3d 38, 45 (2d Cir. 1994))). Finally, we remind 

trial counsel they are: 

representative not of an ordinary party to a 

controversy, but of a sovereignty whose obligation 

to govern impartially is as compelling as its 

obligation to govern at all; and whose interest, 

therefore, in a criminal prosecution is not that it 

shall win a case, but that justice shall be done. As 

such, [they are] in a peculiar and very definite 

sense the servant of the law, the twofold aim of 

which is that guilt shall not escape or innocence 

suffer.... It is as much [their] duty to refrain from 

improper methods calculated to produce a wrongful 

conviction as it is to use every legitimate means to 

bring about a just one. 

Berger, 295 U.S. at 88. Every attorney in a court-martial has 

a duty to uphold the integrity of the military justice system. 

Judgment 

The decision of the United States Navy-Marine Corps Court 

of Criminal Appeals is affirmed as to the findings and only so 

much of the sentence as provides for confinement for thirty-six 

months, reduction to pay grade E-1, forfeiture of $1,566.00 pay 

per month for thirty-six months, and a dishonorable discharge.