          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                        UNITED STATES

                                                    v.

                        Senior Airman BRUCE L. BROUGHTON
                                 United States Air Force

                                            ACM S32156

                                          23 October 2014

         Sentence adjudged 15 May 2013 by SPCM convened at Mountain Home
         Air Force Base, Idaho. Military Judge: Natalie D. Richardson.

         Approved Sentence: Bad-conduct discharge, confinement for 2 months,
         restriction to the limits of Mountain Home Air Force Base for 1 month, hard
         labor without confinement for 1 month, forfeiture of $1,010.00 pay per
         month for 3 months, and reduction to E-1.

         Appellate Counsel for the Appellant: Captain Michael A. Schrama.

         Appellate Counsel for the United States: Lieutenant Colonel C. Taylor
         Smith; Major Daniel J. Breen; Major Brett D. Burton; and Gerald R. Bruce,
         Esquire.

                                                 Before

                         SANTORO, TELLER, and CONTOVEROS
                               Appellate Military Judges

                   This opinion is subject to editorial correction before final release.



PER CURIAM:

        A special court-martial composed of officer members convicted the appellant,
contrary to his pleas, of distribution of marijuana on divers occasions and use of
marijuana on divers occasions, in violation of Article 112a, UCMJ, 10 U.S.C. § 912a.
The adjudged and approved sentence was a bad-conduct discharge, confinement for
2 months, restriction to base for 1 month, hard labor without confinement for 1 month,
forfeiture of $1,010 pay per month for 3 months, and reduction to E-1. Before us, the
appellant argues that (1) the military judge erred in denying his motion to compel a grant
of immunity for a potential witness, and (2) trial counsel’s sentencing argument was
inappropriate.* We disagree and affirm.

                                                    Background

        The appellant was the supplier of marijuana for several Airmen and at least one
civilian. He took orders from buyers and received cash in exchange for the sales. The
appellant also used marijuana on multiple occasions with his friends and customers. The
enterprise came to light when a confidential informant reported his conduct to law
enforcement. The Airmen with whom he used marijuana were offered nonjudicial
punishment under Article 15, UCMJ, 10 U.S.C. § 815, and testified against him with
grants of immunity.

           Additional facts relevant to resolve the assigned errors are recited below.

                                                Motion to Compel

       The first assignment of error concerns the military judge’s denial of a defense
motion to compel the production of CW as a witness. The convening authority had
previously denied both a request to compel and a grant of immunity for CW. We review
a military judge’s ruling on a request for a witness for an abuse of discretion.
United States v. McElhaney, 54 M.J. 120, 126 (C.A.A.F. 2000). A military judge’s
decision not to abate the proceedings is also reviewed for an abuse of discretion.
United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001).

           Under Rule for Courts-Martial (R.C.M.) 704(e):

                    [T]he decision to grant immunity is a matter within the sole
                    discretion of the appropriate general court-martial convening
                    authority. However, if a defense request to immunize a
                    witness has been denied, the military judge may, upon motion
                    by the defense, grant appropriate relief directing that either an
                    appropriate convening authority grant testimonial immunity
                    to a defense witness or, as to the affected charges and
                    specifications, the proceedings against the accused be abated,
                    upon findings that:

                    (1) The witness intends to invoke the right against self-
                    incrimination to the extent permitted by law if called to
                    testify; and


*
    The second issue is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).


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             (2) The Government has engaged in discriminatory use of
             immunity to obtain a tactical advantage, or the Government,
             through its own overreaching, has forced the witness to
             invoke the privilege against self-incrimination; and

             (3) The witness’ testimony is material, clearly exculpatory,
             not cumulative, not obtainable from any other source and
             does more than merely affect the credibility of other
             witnesses.

All three prongs of R.C.M. 704(e) must be satisfied before a military judge may overrule
the decision of the convening authority to deny a request for immunity. Ivey, 55 M.J. at
256.

       In applying R.C.M. 704(e)(1) to the present case, the military judge found that
CW had an active arrest warrant for possession of a controlled substance, use or
possession of drug paraphernalia with intent to use, and driving without privileges. She
also found that CW had been convicted of a misdemeanor for providing false information
to an officer or government official. CW intended to invoke his right to remain silent and
had declined the Government’s request for an interview. These findings are not clearly
erroneous and are amply supported by the record.

       The military judge ruled that the appellant failed to meet his burdens under
R.C.M. 704(e)(2) and (3). In concluding that the Government had not overreached, the
military judge noted that there was no evidence that the Government had made CW
unavailable. She further observed that the convening authority had granted immunity for
two other defense witnesses.

        In concluding that there was insufficient evidence of the materiality and
exculpatory nature of the proposed testimony, the military judge noted that trial defense
counsel presented no evidence of the substance of CW’s expected testimony. Instead,
trial defense counsel offered a proffer that CW would deny packaging marijuana with the
appellant in his bedroom, which would contradict another witness’s statement. He was
also expected to admit using marijuana at the appellant’s residence and, as a result, was
the source of the marijuana odor smelled by others. The proffer was silent as to whether
the incidents about which CW would testify were the same as would be described by the
other witnesses.

       The military judge did not abuse her discretion in denying the appellant’s motion
for relief. There was no evidence suggesting that the Government engaged in the
discriminatory use of immunity to obtain a tactical advantage, overreached, or forced the
witness to invoke his privilege against self-incrimination. As did the military judge and
convening authority, we conclude that even were the proffer of CW’s expected testimony


                                            3                                 ACM S32156
considered as evidence upon which the military judge could rely, the proffer failed to
meet the R.C.M. 704(e)(3) standard: it essentially amounted to CW’s saying that on
unspecified dates within the charged time period, he did not see the appellant use or
distribute marijuana. This testimony is not clearly exculpatory. We therefore reject this
assignment of error.

                                   Sentencing Argument

      The appellant argues that trial counsel improperly encouraged the members to
punish him more severely because his drug distribution caused additional work for his
squadron commander and the commanders of those to whom he distributed. Trial counsel
argued:

              We would not stand before you and argue that the fab-four
              that [defense counsel] described are somehow not responsible
              for their actions. . . . But there is something to – something
              aggravating about the accused enabling that. They made that
              decision and they’re responsible for and they’ve been held
              responsible for it, but [the appellant] enabled that. They
              didn’t have to go far. And there’s aggravation there. And
              this isn’t a problem that only [the appellant’s commander]
              had to deal with in his squadron. This is a problem that the
              AMXS commander had to deal with, with Airman S[], this is
              a problem that the communications squadron commander had
              to deal with Airman W[], this is a problem that the
              equipment maintenance squadron commander had to deal
              with, with that airman. This was across the entire Wing and
              two Groups.

       Trial defense counsel did not object to the prosecution argument; we therefore
review for plain error. See United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007);
United States v. Gilley, 56 M.J. 113, 123 (C.A.A.F. 2001). “[T]o prevail under a plain
error analysis, [the appellant] must demonstrate that: ‘(1) there was an error; (2) it was
plain or obvious; and (3) the error materially prejudiced a substantial right’” of the
appellant. Erickson, 65 M.J. at 223 (quoting United States v. Kho, 54 M.J. 63, 65
(C.A.A.F. 2000)).

       “A trial counsel is charged with being a zealous advocate for the Government.”
United States v. Barrazamartinez, 58 M.J. 173, 176 (C.A.A.F. 2003) (citing United States
v. Nelson, 1 M.J. 235, 238 (C.M.A. 1975)). As a zealous advocate, trial counsel may
“argue the evidence of record, as well as all reasonable inferences fairly derived from
such evidence.” United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000) (citing Nelson,
1 M.J. at 239). During sentencing argument, “trial counsel is at liberty to strike hard, but


                                             4                                  ACM S32156
not foul, blows.” Baer, 53 M.J. at 237. Trial counsel may not “seek unduly to inflame
the passions or prejudices of the court members.” United States v. Clifton, 15 M.J. 26, 30
(C.M.A. 1983) (citing United States v. Shamberger, 1 M.J. 377 (C.M.A. 1976)).

        The court heard evidence that each of the Airmen referenced by trial counsel were
in different squadrons and that each received an Article 15 for use of marijuana. It could
be reasonably inferred that if a military member received nonjudicial punishment, the
punishment was imposed by the Airman’s commander. Thus, we conclude that there was
evidence in the record to support trial counsel’s argument.

      We next turn to whether the argument itself was improper. When viewed in
context with the entire sentencing argument, we conclude that trial counsel’s comments
appropriately highlighted that the appellant’s distribution of marijuana contributed to a
breach of good order and discipline across multiple squadrons. We find no error, plain or
otherwise, and reject this assignment of error.

                                       Conclusion

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



             FOR THE COURT


             STEVEN LUCAS
             Clerk of the Court




                                            5                                 ACM S32156
