            UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                             UNITED STATES

                                                       v.

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

                                                ACM S32264

                                             10 December 2015

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

           Approved Sentence: Bad-conduct discharge, confinement for 1 month,
           forfeiture of $1,021.00 pay for one 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

            This opinion is issued as an unpublished opinion and, as such, does not serve as precedent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
distributions of MDMA, and divers distributions of cocaine, in violation of Article 112a,

1
 Mr. Tyler Smith was not a licensed attorney during his participation in this case. In accordance with AFCCA
Rules of Practice and Procedure 6.1, he was supervised by attorneys admitted to practice before this court.
UCMJ, 10 U.S.C. § 912a. The military judge sentenced Appellant to a bad-conduct
discharge, confinement for one month, forfeiture of $1,021.00 pay for one 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. While we disagree as to these alleged errors, we order a new
action and promulgating order.

                                      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
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.




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        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
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


                                             3                                   ACM S32264
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 (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 one month, forfeiture of $1,021.00 pay for one 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.

                                            Post-Trial Processing

       The court-martial promulgating order (CMO) failed to correctly number the
specifications.2 See Air Force Instruction (AFI) 51-201, Administration of Military
Justice, ¶ 10.8.2.2 (6 June 2013) (requiring that the CMO accurately list the charges and
specifications on which the accused was arraigned, along with the plea and finding).

        While such errors in a CMO would normally not merit a new action and could be
remedied by a corrected CMO, in this case the convening authority approved the
adjudged findings and sentence by signing the CMO rather than signing a separate initial
action. The CMO apparently served the dual purpose of both the promulgating order and
the initial action.3 When an action contains clerical errors, we may direct the convening
authority to withdraw the original action and substitute a new action. R.C.M. 1107(g).
As a portion of what constituted the action contained clerical errors, we order a new
action and new promulgating order.

2
  Additionally, “USAF” was omitted following Appellant’s social security number and there were errors in the
distribution list.
3
  Air Force Instructions and the Manual for Courts-Martial both contemplate an initial action that is separate from
the court-martial promulgating order (CMO). Compare Air Force Instruction (AFI) 51-201, Administration of
Military Justice, ¶ 9.25 (6 June 2013) (“Prepare convening authority’s initial action in accordance with RCM
1107(f) and the guidance in the MCM, Appendix 16. Samples of a convening authority’s initial action are at Figure
9.10.”), with AFI 51-201, ¶ 10.1 (“Use the guidance in RCM 1114, Appendix 17, and Figures 10.1 through 10.9 to
prepare and issue CMOs.”). As we direct the convening authority to withdraw and correct the errors in the
promulgating order/action, it is unnecessary for us to resolve whether it is error to use a convening authority’s
personally authenticated CMO as both a promulgating order and initial action. Regardless of whether it constitutes
error, it is at the very least a recommended practice to conform to the specific post-trial processing procedures set
forth in the Manual and the relevant Air Force Instructions. Such an approach necessarily minimizes the potential
for errors and expedites post-trial review and processing.


                                                         4                                             ACM S32264
                                      Conclusion

      The record of trial is returned to The Judge Advocate General for remand to the
convening authority for withdrawal of the original action and to substitute a new action
and promulgating order. R.C.M. 1107(g). Thereafter, Article 66, UCMJ, shall apply.




             FOR THE COURT


             LEAH M. CALAHAN
             Clerk of the Court




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