UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS

UNITED STATES

v.

Senior Airman MICHAEL B. BRADFORD

United States Air Force

ACM S32288

7 June 2016

Sentence adjudged 5 November 2014 by SP CM convened at Joint Base Charleston, South Carolina . Military Judge : Lynn Watkins

.

Approved S entence: Bad

- conduct discharge, confinement for 3 months

, and forfeiture of $1,618.00 pay per month for 3 months

.

Appellate Counsel for the Appellant: Major Jeffrey A. Davis

.

Appellate Counsel for the United States: Captain Collin F. Delany and Gerald R. Bruce, Esquire

.

Before

ALLRED, MITCHELL, and MAYBERRY Appellate Military Judges

OPINION OF THE COURT

This opinion is issued as an unpublished opinion and, as such, does not serve as precedent

under Rule of Practice and Procedure 18.4

.

ALLRED

, Chief Judge:

At a special court

- martial composed of officer and enlisted members

, Appellant was found

, in accordance with his plea s
, guilty of wrongful use of marijuana

, in violation of

Article 1 12a , UCMJ, 10 U.S.C. § 91 2a, and not guilty of wrongful use of methamphetamine

. He was sentenced to a bad

- conduct discharge, confinement for 3

months , and forfeiture of $1,618.00 pay per month for 3 m onths

.

Before us

, Appellant contends that (1) t rial c ounsel made improper argument and engaged in prosecutorial misconduct by misstating the evidence during sentence2 ACM S32288

proceedings

, (2) the s taff j udge a dvocate’s r ecommendation (SJAR) failed to adequately address improper argument by trial counsel, and (3) the sentence is inappropriately severe

. Finding that trial counsel engaged in improper sentencing argument, we reassess the

sentence in this case.

Background

Appellant provided a urine sample which tes ted positive for tetrahydrocannabinol (THC) and methamphetamines. At trial, Appellant did not challenge the test results indicating the presence of both THC and methamphetamines in his urine . Appellant admitted to using marijuana , but present ed evidence that he had innocently ingested methamphetamine and was acquitted of using that drug. During sentencing proceedings, the Government properly introduced evidence that Appellant received punishment under Article 15, UCMJ, 10 U.S.C. § 815

, for a nother instan ce of marijuana use.

I. S entencing Argument and Prosecutorial Misconduct

We approach Appellant’s claims of improper argument and prosecutorial misconduct by noting that the following sequence of events i s not disputed by the parties: First, between about 16 May 2014 and 6 June 2014, Appellant used marijuana (first use). Second, between about 23 June 2014 and 7 July 2014, Appellant used marijuana yet again (second use). Third, on 17 July 2014, Appellant received nonjudicial punishment under

Article 15 , UCMJ, for his first use of marijuana. And fourth, on 20 August 2014, the court

martial charge of which Appellant now stands convicted was preferred for his second use of marijuana.

Thus, both Appellant’s first and second uses of mariju ana preceded his receipt of nonjudicial punishment for his first use. During her sentencing argument, however,

a ssistant t rial c ounsel contradicted this sequence of events. She argued that even after receiving nonjudicial punishment

— which included a repr imand and warning by his commander never to abuse drugs again

— Appellant engaged in the marijuana use leading to his present court

- martial. Trial d efense c ounsel promptly objected that this argument

mischaracterized the evidence. Before the military judge could rule on the objection,

a ssistant t rial c ounsel stated, “Your Honor, I’ll rephrase myself.” The military judge then sustained the Defense objection, and a ssistant t rial c ounsel continued her sentencing
argument.

Nevertheless, despite the sustained objection, a ssistant t rial c oun se l a short time later repeated her mischaracterization of the evidence. She argued that Appellant lacked rehabilitation potential “ because he had a chance to ask for help, to get rehabilitated, but he chose to use drugs aga in after he received this Article 15. ” On this occasion, t rial

d efense c ounsel did not object, nor did the military judge address the misstatement sua
sponte.3 ACM S32288

Improper argument involves a question of law that we review de novo. United

States v. Frey

, 73 M.J. 245, 248 (C.A.A.F. 2014)

. When the defense has objected at trial, we review alleged improper argument for prejudicial error. United States v. Hornback , 73 M.J. 155, 159 (C.A.A.F. 2014). “The legal test for improper argument is whether the
argument was erroneous and whether it materially prejudiced the substantial rights of the
accused.” Frey , 73 M.J. at 248 (quoting United States v. Baer , 53 M.J. 235, 237 (C.A.A.F. 2000)). “Where improper argument occurs during the sentencing portion of the trial, we determine whether or not we can be ‘confident that [the appellant] was sentenced on the

basis of the evidence alone.’” Frey , 73 M.J. at 248 ( alteration in original) (quoting United States v. Halpin , 71 M.J. 477, 480 (C.A.A.F. 2013)). Our superior court has identified a

three

- part test for determining prejudice when trial counsel ha s engaged in improper
argument: “(1) the severity of the misconduct, (2) the measures adopted to cure the misconduct, and (3) the weight of the evidence supporting the conviction.” Hornback , 73 M.J. at 160 (quoting United States v. Fletcher , 62 M.J. 175, 184 (C.A.A.F. 2005)). Our superior court has utilized these factors to review allegations of improper sentencing

argu ment. See, e.g.

, Frey , 73 M.J. at 249 ; Halpin , 71 M.J. at 480.

To the extent that trial defense counsel has failed to object to the argument s at trial, we review for plain error. United States v. Marsh , 70 M.J. 101, 104 (C.A.A.F. 2011). To establish pl ain error, Appellant must prove: “ (1) [T] here was an error; (2) it was plain or obvious; and (3) the error materially prejudiced a substantial right. ” Id. (quoting United

States v. Erickson , 65 M.J. 221, 223 (C.A.A.F. 2007)). Error occurs when counsel fail to limit their arguments to “the evidence of record, as well as all reasonable inferences fairly

derived from such evidence.” Baer , 53 M.J. at 237 (citing United States v. Nelson , 1 M.J. 235, 239 (C.M.A. 1975)). Even within the context of the record, it is error for trial counsel to make arguments that “ unduly . . . inflame the passions or prejudices of the court
members.” Marsh , 70 M.J. at 102 (alteration in original) (quoting United States v.

Schroder , 65 M.J. 49, 58 (C.A .A.F. 2007)); see also Rule for Courts

- Martial ( R.C.M. ) 919(b), Discussion. On the other hand, trial counsel is expected to zealously argue for an appropriate sentence, so long as the argument is fair and reasonably based on the evidence.

United States v . Kropf

, 39 M.J. 107, 108 (C.M.A. 1994).

In the present case, Appellant claims that a ssistant t rial c ounsel not only misstated the evidence, but in fact “lied” and committed prosecutorial misconduct by arguing that the offense giving rise to his court

- mar tial conviction occurred after he received nonjudicial punishment. We find in the record no support for the contention that a ssistant t rial c ounsel deliberately lied or engaged in actual misconduct

— and we reject any such claim

. See

United States v. Fletcher , 62 M.J. 175, 179 (C.A.A.F. 2005) (discussi ng what constitutes prosecutorial misconduct). Assistant t rial c ounsel appears to have been new to the practice of military justice and was, at the time of trial, neither certified under Article 27(b), U CMJ, 10 U.S.C. § 827(b)

, nor permanently sworn pursuant to Article 42 (a) , UCMJ, 10 U.S.C. § 842(a), and Air Force Instruction 51

- 201, Administration of Military Justice , ¶ 5

. 5.1 (64 ACM S32288

June 2013) . We deem it more probable that a ssistant t rial c ounsel was mere ly confused by the sequence of events than that she intentionally misrepresented them to the members. 1

Even so, the argument in question remains troublesome. First, whether Appellant again used drugs after once being punished for doing so was a matter of real consequence

in this case. His court

- martial sentence was legal and its approval was within the discretion of the convening authority. Appellant had, however, a strong military record with no indication of prior drug involvement, nor any other misco nduct warranting as much as nonjudicial punishment . Our own experience in military justice indicates that

— absent intervening corrective action by command or some other aggravating circumstance not apparent here

— a punitive discharge for twice using marijuana is unusually harsh.

Futhermore , when the Government argued for a second time that Appellant persisted in using drugs even after receiving nonjudicial punishment for doing so, the military judge did nothing to correct the misstatement nor set the record straight. 2

Ultimately, we find a substantial likelihood that the members were influenced by

the prosecution’s repeated, erroneous description of events. Even applying the plain error standard advocated by the Government, we must rule in favor of Appellant. We find that the argument of a ssistant t rial c ounsel was error, the error was plain and obvious, and Appellant’s substantial right to a fair trial was materially prejudiced when the military judge failed to ensure Appellant’s sentence was free from the taint of improper argument.

See M arsh 70 M.J. at 10 7

. 3 Under these particular facts, we find that the approved sentence is not appropriate for this appellant and t his offense. We discuss below the relief to be granted.

1 Although not raised by Appellant, we find that a ssistant t rial c ounsel’s argument regarding why hard labor without confinement was not an appropriate punishment further demonstrates her lack of understanding of the practice of military justice. A ssistant t rial c ounsel seemed to conflate correctional custody with hard labor without confinement.

She argu ed that hard labor without confinement was not appropriate because the base did not have a “hard labor camp” and it was “not something that is available here.” We are unaware of any Air Force base that has a “hard labor camp.”
Moreover, t he authorized pu nishment of hard labor without confinement is available and authorized regardless of the

installation.

2 Arguing on appeal that “[a]ny prejudice was quickly cured and eliminated,” the Government appears to hold the

erroneous belief that a ssistant t rial c ou nsel’s second misstatement of the evidence drew “a prompt objection [and] was followed by a prompt curative instruction.” This was not so. Trial d efense c ounsel did make a second objection during the argument , when a ssistant t rial c ounsel seemed to sugge st that the court should punish Appellant for both his first and second uses of marijuana

— in that instance the trial judge properly sustained the objection and instructed the members that they were to sentence Appellant only for the offense of which he was now convicted. In fact, however, a ssistant t rial c ounsel’s second incorrect claim that Appellant used marijuana after receiving nonjudicial punishment drew no D efense objection nor any response from the military judge.

3 Appellant also contends that a ssistant t rial c ounsel engaged in improper argument by urging the members “ to increase Appellant’s punishment because he was a repeat offe nder in light of his Article 15.” We reject this claim. Having carefully reviewed the record, we are convinced that, to the degree any argument along these lines was improper, all taint was cured by sustained objection and sua sponte instruction from the military judge.5 ACM S32288 II. Staff Judge Advocate Recommendation

In clemency matters to the convening authority, t rial d efense c ounsel claimed that the sentencing argument of a ssistant t rial c ounsel was “overflowing with improper references that likely improperly inflamed the jury and caused them to give such a harsh

se ntence for one

- time marijuana use.” Trial d efense c ounsel cited several instances of allegedly improper argument. In his a ddendum to the SJAR, the s taff j udge a dvocate (SJA) to the convening authority responded, “Based upon my review of the record, I dis agree with Defense Counsel’s allegations and recommend you approve the findings and sentence as adjudged.” On appeal, Appellant contends the SJAR “was erroneous because it failed to adequately address trial counsel’s improper sentencing argument.”

We rev iew allegations of error in post

- trial processing de novo

. United States v. Sheffield , 60 M.J. 591, 593 (A.F. Ct. Crim. App. 2004) (citing United States v. Kho , 54 M.J. 63, 65 (C.A.A.F. 2000) )

. “[ B ] ecause of the highly discretionary nature of the convening authority ’ s clemency power, the threshold for showing [post

- trial] prejudice is

low. ” United States v. Lee , 52 M.J. 51, 53 (C.A.A.F. 1999). Only a colorable showing of possible prejudice is necessary. Id . Even so, an error in the SJAR “ does n ot result in an automatic return by the appellate court of the case to the convening authority. ” United

States v. Green , 44 M.J. 93, 95 (C.A.A.F. 1996). “ Instead, an appellate court may determine if the accused has been prejudiced by testing whether the alleged error has any merit and would have led to a favorable recommendation by the SJA or corrective action by the convening authority. ” Id

.

Rule for Courts

- Martial 1106(d)(4) states :

Legal errors. The staff judge advocate or legal officer is not required to examine the record for legal errors. However, when

the recommendation is prepared by a staff judge advocate, the staff judge advocate shall state whether, in the staff judge
advocate’s opinion, corrective action on the findings or

sentence sho uld be taken when an allegation of legal error is

raised in matters submitted under R.C.M. 1105 or when otherwise deemed appropriate by the staff judge advocate. The response may consist of a statement of agreement or disagreement with the matter raised b y the accused. An analysis or rationale for the staff judge advocate’s statement, if

any, concerning legal error is not required.

In the present case, we find that the a ddendum to the SJAR met the requirements of R.C.M. 1106(d)(4) and was otherwise prop er. We reject this assignment of error.6 ACM S32288 I II. Sentence Severity

Appellant argues that his sentence to a bad

- conduct discharge is unduly severe. In light of our action disapproving the sentence in this case, we deem this argument moot.

Relief

W e “may affirm only such findings of guilty and the sentence or such part or amount of the sentence, as [we] find[] correct in law and fact and determine[], on the basis of the entire record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). “ We assess sentence appropriateness by considering the particular appellant, the nature and seriousness of the offenses, the appellant’s record of service, and all matters contained in the record of

trial.” United States v. Bare , 63 M.J. 707, 714 (A.F. Ct. Crim. App. 2006); see also United States v. Snelling , 14 M.J. 267, 268 (C.M.A. 1982).

We have considered this particular appellant, the nature and seriousness of his offense, his record of service, all matters contained in the record of trial, and his arguments on appeal. In light of our ruling that the Government engaged in improper sentencing argument, we find the following sentence to be appropriate : confinement for 3 months and forfeiture of $1,618.00 pay per month for 3 months.

Conclusion

The approved findings and the sentence, as reassessed, are correct in law and fact, and no error materially prejudicial to the substantial rights of A ppellant occurred. Articles 59(a) and 66(c), UCMJ , 10 U.S.C. §§ 859(a), 866(c) . Acc ordingly, the approved findings and the sentence, as reassessed, are AFFIRMED

.

FOR THE COURT

LEAH M. CALAHAN

Clerk of the Court