             UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                              UNITED STATES

                                                        v.

                                 Staff Sergeant JAMES E. FRADY JR.
                                         United States Air Force

                                            ACM S32264 (recon)

                                                 7 March 2016

            Sentence adjudged 12 August 2014 by SPCM convened at Joint Base
            Andrews, Maryland. Military Judge: Tiffany M. Wagner (sitting alone).

            Approved Sentence: Bad-conduct discharge, confinement for 1 month,
            forfeiture of $1,021.00 pay for 1 month, and reduction to E-1.

            Appellate Counsel for Appellant: Major Anthony D. Ortiz; Captain Travis
            L. Vaughan; and Captain Lauren A. Shure.

            Appellate Counsel for the United States: Major Mary Ellen Payne;
            Gerald R. Bruce, Esquire; and Mr. Tyler Smith (civilian intern).1

                                                     Before

                                 MITCHELL, DUBRISKE, and BROWN
                                      Appellate Military Judges

                                        OPINION OF THE COURT
                                       UPON RECONSIDERATION

             This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                                 under AFCCA Rule of Practice and Procedure 18.4.



BROWN, Judge:

       At a judge alone special court-martial, Appellant was convicted, consistent with
his plea and in accordance with a pretrial agreement, of divers uses of cocaine, divers
uses of ketamine, divers uses of methylenedioxymethamphetamine (MDMA), divers

1
 Mr. Tyler Smith was not a licensed attorney during his participation in this case. In accordance with AFCCA Rule
of Practice and Procedure 6.1, he was supervised by attorneys admitted to practice before this court.
distributions of MDMA, and divers distributions of cocaine, in violation of Article 112a,
UCMJ, 10 U.S.C. § 912a. The military judge sentenced Appellant to a bad-conduct
discharge, confinement for 1 month, forfeiture of $1,021.00 pay for 1 month, and
reduction to E-1. The convening authority approved the sentence as adjudged.

      Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), Appellant
contends that trial counsel’s sentencing argument was improper and that his sentence is
inappropriately severe.

       On 10 December 2015, we issued an unpublished opinion where we disagreed
with Appellant as to his identified errors, but directed a new action and promulgating
order because of errors in the court-martial order (CMO). United States v. Frady, ACM
S32264 (A.F. Ct. Crim. App. 10 December 2015) (unpub. op.).

       On 7 January 2016, the Government submitted a motion to attach the convening
authority’s signed initial action that was previously omitted from the record of trial, and
requested that this court re-consider its decision in light of that document. Appellant did
not object, and, on 29 January 2016, we granted the motion to attach and the motion for
reconsideration.

       After reconsideration, we again disagree as to Appellant’s alleged errors. In light
of the production of the signed initial action, we no longer require the substitution of a
new action.2 Therefore, we affirm the approved findings and sentence.

                                                  Background

       Over approximately a five-month period from late 2013 to early 2014, Appellant
repeatedly used cocaine, MDMA, and ketamine with his roommate and friends. He used
these drugs at his off-base residence—while hosting parties—as well as at bars and
nightclubs. He also provided MDMA and cocaine to his friends during the same time,
though he did not sell or profit from these distributions. Appellant’s drug use was
discovered after he failed a urinalysis.

        During sentencing, the Government admitted three letters of reprimand and four
letters of counseling, documenting infractions including disrespecting a senior non-
commissioned officer, failure to obey a lawful order, multiple failures to go, and
irresponsible consumption of alcohol. The majority of these infractions occurred in the
year prior to the charged offenses, though one of the failures to go occurred during the
timeframe of the charged conduct. In addition, the Government offered Appellant’s

2
 In addition, a corrected court-martial order (CMO) is also no longer required. The recently submitted initial action
was signed by the convening authority on 3 October 2014. That same day, it appears as though a corrected court-
martial order (CMO) was also issued and inserted into the record of trial. This corrected CMO fixed the errors
previously identified in our 10 December 2015 opinion.


                                                         2                                     ACM S32264 (recon)
enlisted performance evaluations. These evaluations reflected a noticeable drop in
Appellant’s performance beginning approximately a year prior to the charged offenses.

                          Sentencing Argument of Trial Counsel

       Appellant argues that trial counsel committed error during the Government’s
sentencing argument when purportedly arguing to the military judge that Appellant
should be punished more harshly because of his uncharged misconduct and poor
performance evaluations, and that the Government argued facts not in evidence by
asserting Appellant’s drug use impacted his work performance.

       Trial defense counsel did not object to the argument regarding the uncharged
misconduct but did object to trial counsel’s comment that “we can reasonably infer that
one who snorts cocaine and is able to stay up and have energy cannot walk into work
after a long weekend on Monday with a clear state of mind.” The military judge
overruled defense’s objection, though clarified that she would “keep in mind what [she]
can and cannot consider.” The Government did not argue this point further.

        Whether argument is improper is a question of law we review de novo. United
States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011) (citing United States v. Pope, 69 M.J.
328, 334 (C.A.A.F. 2011)). If trial defense counsel failed to object to the argument at
trial, we review for plain error. Id. To establish plain error, Appellant must prove: “(1)
there 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)) (internal quotation marks omitted).

       “[T]rial counsel is at liberty to strike hard, but not foul, blows.” United States v.
Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (quoting United States v. Baer, 53 M.J. 235,
237 (C.A.A.F. 2000)). Trial counsel is limited to arguing the evidence in the record and
the inferences fairly derived from that evidence. See United States v. Paxton, 64 M.J.
484, 488 (C.A.A.F. 2007); United States v. White, 36 M.J. 306, 308 (C.M.A. 1993).
Whether or not the comments are fair must be resolved when viewed within the entire
court-martial. United States v. Gilley, 56 M.J. 113, 121 (C.A.A.F. 2001). It is
appropriate for counsel to argue the evidence, as well as all reasonable inferences fairly
derived from such evidence. United States v. Nelson, 1 M.J. 235, 239 (C.M.A. 1975).

       We find no material prejudice to any substantial right of Appellant. His case was
tried before a military judge sitting alone. “Military judges are presumed to know the law
and to follow it absent clear evidence to the contrary.” Erickson, 65 M.J. at 225. Our
superior court has also recognized, “As part of this presumption we further presume that
the military judge is able to distinguish between proper and improper sentencing
arguments.” Id. Here, the military judge reassured counsel that she was aware of what
she could and could not consider as a military judge. Additionally, the comments that


                                             3                            ACM S32264 (recon)
Appellant now asserts were error constituted only a small portion of trial counsel’s
argument. Upon considering the full context of the sentencing argument, we determine
that Appellant’s claimed errors did not materially prejudice a substantial right.

                               Sentence Appropriateness

      Appellant also argues that a bad-conduct discharge for multiple uses of cocaine,
MDMA, and ketamine, as well as multiple distributions of cocaine and MDMA, is
inappropriately severe. We disagree.

       This court “may affirm only . . . the sentence or such part or amount of the
sentence, as it finds correct in law and fact and determines, on the basis of the entire
record, should be approved.” Article 66(c), UCMJ, 10 U.S.C. § 866(c). In determining
whether a sentence should be approved, our authority is “not legality alone, but legality
limited by appropriateness.” See United States v. Nerad, 69 M.J. 138, 141 (C.A.A.F.
2010) (quoting United States v. Atkins, 23 C.M.R. 301, 303 (C.M.A. 1957)). This
authority is “a sweeping congressional mandate to ensure a fair and just punishment for
every accused.” United States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting
United States v. Bauerbach, 55 M.J. 501, 504 (Army Ct. Crim. App. 2001)) (internal
quotation marks omitted). This task requires “individualized consideration of the
particular accused on the basis of the nature and seriousness of the offense and the
character of the offender.” United States v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982)
(quoting United States v. Mamaluy, 27 C.M.R. 176, 180–81 (C.M.A. 1959)) (internal
quotation marks omitted). In conducting this review, we must also be sensitive to
considerations of uniformity and even-handedness. United States v. Sothen, 54 M.J. 294,
296 (C.A.A.F. 2001) (citing United States v. Lacy, 50 M.J. 286, 287–88 (C.A.A.F.
1999)).

       We have given individualized consideration to this particular Appellant, the nature
and seriousness of the offenses, Appellant’s record of service, and all other matters
contained in the record of trial. We find that the approved sentence of a bad-conduct
discharge, confinement for 1 month, forfeiture of $1,021.00 pay for 1 month, and
reduction to E-1 was within the discretion of the military judge and convening authority;
was legally appropriate based on the facts and circumstances of this particular case; and
was not inappropriately severe.

                                       Conclusion

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




                                            4                            ACM S32264 (recon)
Accordingly, the approved findings and sentence are AFFIRMED.




            FOR THE COURT


            LEAH M. CALAHAN
            Clerk of the Court




                                        5                       ACM S32264 (recon)
