          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 SPCM convened at Joint Base
         Charleston, South Carolina. Military Judge: Lynn Watkins.

         Approved Sentence: 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          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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 pleas, guilty of wrongful use of marijuana, in violation of
Article 112a, UCMJ, 10 U.S.C. § 912a, 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 months.

      Before us, Appellant contends that (1) trial counsel made improper argument and
engaged in prosecutorial misconduct by misstating the evidence during sentence
proceedings, (2) the staff judge advocate’s recommendation (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 tested 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 presented 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 another instance of marijuana use.

                       I. Sentencing Argument and Prosecutorial Misconduct

        We approach Appellant’s claims of improper argument and prosecutorial
misconduct by noting that the following sequence of events is 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 marijuana preceded his receipt of
nonjudicial punishment for his first use. During her sentencing argument, however,
assistant trial counsel contradicted this sequence of events. She argued that even after
receiving nonjudicial punishment—which included a reprimand and warning by his
commander never to abuse drugs again—Appellant engaged in the marijuana use leading
to his present court-martial. Trial defense counsel promptly objected that this argument
mischaracterized the evidence. Before the military judge could rule on the objection,
assistant trial counsel stated, “Your Honor, I’ll rephrase myself.” The military judge then
sustained the Defense objection, and assistant trial counsel continued her sentencing
argument.

        Nevertheless, despite the sustained objection, assistant trial counsel 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 again after he received this Article 15.” On this occasion, trial
defense counsel did not object, nor did the military judge address the misstatement sua
sponte.


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       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 has 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
argument. 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 arguments at trial,
we review for plain error. United States v. Marsh, 70 M.J. 101, 104 (C.A.A.F. 2011). To
establish plain 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 assistant trial counsel not only misstated
the evidence, but in fact “lied” and committed prosecutorial misconduct by arguing that
the offense giving rise to his court-martial conviction occurred after he received nonjudicial
punishment. We find in the record no support for the contention that assistant trial counsel
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) (discussing what constitutes
prosecutorial misconduct). Assistant trial counsel appears to have been new to the practice
of military justice and was, at the time of trial, neither certified under Article 27(b), UCMJ,
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 (6



                                               3                                    ACM S32288
June 2013). We deem it more probable that assistant trial counsel was merely 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 misconduct 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 assistant trial counsel 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 Marsh 70 M.J. at 107.3 Under these particular facts, we find that the approved sentence
is not appropriate for this appellant and this offense. We discuss below the relief to be
granted.



1
  Although not raised by Appellant, we find that assistant trial counsel’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. Assistant trial counsel seemed to conflate correctional custody with hard labor without confinement.
She argued 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, the authorized punishment 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 assistant trial counsel’s second misstatement of the evidence drew “a prompt objection [and] was
followed by a prompt curative instruction.” This was not so. Trial defense counsel did make a second objection
during the argument, when assistant trial counsel seemed to suggest 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, assistant trial counsel’s second incorrect claim that Appellant used marijuana after receiving nonjudicial
punishment drew no Defense objection nor any response from the military judge.
3
  Appellant also contends that assistant trial counsel engaged in improper argument by urging the members “to increase
Appellant’s punishment because he was a repeat offender 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.


                                                          4                                             ACM S32288
                       II. Staff Judge Advocate Recommendation

       In clemency matters to the convening authority, trial defense counsel claimed that
the sentencing argument of assistant trial counsel was “overflowing with improper
references that likely improperly inflamed the jury and caused them to give such a harsh
sentence for one-time marijuana use.” Trial defense counsel cited several instances of
allegedly improper argument. In his addendum to the SJAR, the staff judge advocate (SJA)
to the convening authority responded, “Based upon my review of the record, I disagree
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 review 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 not 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 should 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 by 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 addendum to the SJAR met the requirements of
R.C.M. 1106(d)(4) and was otherwise proper. We reject this assignment of error.



                                             5                                    ACM S32288
                                    III. 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

        We “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 Appellant occurred. Articles
59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the approved findings
and the sentence, as reassessed, are AFFIRMED.




              FOR THE COURT


              LEAH M. CALAHAN
              Clerk of the Court




                                              6                                    ACM S32288
