              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                         ________________________

                              No. ACM 39072
                         ________________________

                            UNITED STATES
                                Appellee
                                      v.
                      Rashaan D. FEDDERSEN
                 Airman (E-2), U.S. Air Force, Appellant
                         ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 21 August 2017
                         ________________________

Military Judge: Natalie D. Richardson.
Approved sentence: Bad-conduct discharge, confinement for 20 months,
forfeiture of all pay and allowances, and reduction to E-1. Sentence
adjudged 25 March 2016 by GCM convened at Joint Base Elmendorf-
Richardson, Alaska.
For Appellant: Major Mark C. Bruegger, USAF.
For Appellee: Major G. Matt Osborn, USAF; Major Mary Ellen Payne,
USAF; Gerald R. Bruce, Esquire.
Before DREW, MAYBERRY, and DENNIS, Appellate Military Judges.
Chief Judge DREW delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge DENNIS joined.
                         ________________________

    This is an unpublished opinion and, as such, does not serve as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

DREW, Chief Judge:
   A military judge sitting as a general court-martial convicted Appellant, in
accordance with his pleas and pursuant to a pretrial agreement, of attempt-
ing to violate a no-contact order, in violation of Article 80, Uniform Code of
                       United States v. Feddersen, No. ACM 39072


Military Justice (UCMJ), 10 U.S.C. § 880; of nine specifications of wrongfully
introducing, distributing, and using various controlled substances, in viola-
tion of Article 112a, UCMJ, 10 U.S.C. § 912a; of breaking restriction in
violation of Article 134, UCMJ, 10 U.S.C. § 934; and of wrongfully endeavor-
ing to impede the urinalysis inspection of another Air Force member, also in
violation of Article 134. 1 The military judge sentenced Appellant to a bad-
conduct discharge, confinement for 20 months, forfeiture of all pay and
allowances, and reduction to E-1. The convening authority approved the
sentence as adjudged. 2
   On appeal, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982), Appellant asserts two errors: that the military judge abandoned her
neutral position and inappropriately assisted the Prosecution and that the
assistant trial counsel inappropriately argued that Appellant failed to pro-
duce sentencing evidence. We find no error materially prejudicial to Appel-
lant’s substantial rights and thus affirm the findings and sentence.

                                   I. BACKGROUND
    Appellant arrived at his first duty station, Joint Base Elmendorf-
Richardson (JBER), Alaska, in April 2015. In September 2015, Appellant
received a text message from Airman First Class (A1C) DJ, with whom he
had recently wrongfully used a controlled substance, that A1C DJ had just
been notified that he needed to provide a urinalysis sample. Appellant ar-
ranged for Airman (Amn) CR to provide A1C DJ a container of urine to use at
his urine collection.
    On 7 December 2015, Appellant was punished by his squadron command-
er, pursuant to Article 15, UCMJ, 3 for having a total of four under-aged girls,
ranging from 13 to 15, in his dorm room over the course of two separate
events. His punishment included reduction to the grade of Airman and
restriction to JBER for 60 days, 30 days of which was suspended. On


1 Appellant pleaded guilty to all offenses as charged, except for the allegation that he
used Xanax on divers occasions. The Prosecution withdrew and dismissed the words
“on divers occasions” in that specification before the military judge entered findings
on all of the remaining allegations. The military judge found Appellant guilty of
Xanax use by exception and substitution, to conform the findings to the date that
Appellant admitted during the providence inquiry that he used Xanax.
2The adjudged sentence was not affected by the pretrial agreement to approve no
more than 22 months of confinement.
3   10 U.S.C. § 815.




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                 United States v. Feddersen, No. ACM 39072


21 December 2015, Appellant broke his restriction to JBER and was arrested
by civilian police in Anchorage, Alaska, for driving under the influence of
marijuana. Appellant had been driving erratically, to include driving on the
wrong side of the road. He told the arresting officer that the marijuana had
affected his driving, because he was “not using his brain.” In his car when he
was arrested were two 15-year-old girls. After returning to JBER, Appellant
attempted to violate a no-contact order issued by his squadron commander,
not to contact Amn CR, by wrongfully asking another military member to call
Amn CR on the other member’s cell phone and then pass the phone to Appel-
lant.
    An ensuing investigation by the Air Force Office of Special Investigations
revealed that in the summer through winter of 2015 Appellant had—on
divers occasions—wrongfully introduced onto JBER, distributed, and used,
3,4-methylenedioxymethamphetamine (commonly known as “ecstasy” or
“molly”); on divers occasions wrongfully introduced onto JBER, distributed,
and used lysergic acid diethylamide (commonly known as “LSD”); on divers
occasions wrongfully distributed and used marijuana; and wrongfully used
alprazolam (commonly known as “Xanax”).

                                II. DISCUSSION
    Appellant now asserts that the military judge abandoned her neutral role
and helped the Prosecution lay the foundation to introduce some of its sen-
tencing evidence. At no time during his trial did Appellant challenge the
military judge for purportedly abandoning her proper role. Appellant also
now asserts that the assistant trial counsel improperly argued that he failed
to introduce mitigating evidence at trial. Appellant offered no objection at
trial to the Prosecution’s sentencing argument.
       “Waiver is different from forfeiture. Whereas forfeiture is the
       failure to make the timely assertion of a right, waiver is the ‘in-
       tentional relinquishment or abandonment of a known right.’”
       United States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 123
       L. Ed. 2d 508 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
       464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). The distinction be-
       tween the terms is important. If an appellant has forfeited a
       right by failing to raise it at trial, we review for plain error.
       [United States v.] Harcrow, 66 M.J. [154,] 156 [(C.A.A.F. 2008)]
       (citing Olano, 507 U.S. at 733-34). When, on the other hand, an
       appellant intentionally waives a known right at trial, it is ex-
       tinguished and may not be raised on appeal. Id. (citing Olano,
       507 U.S. at 733-34).
United States v. Gladue, 67 M.J. 311, 313 (C.A.A.F. 2009).


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                 United States v. Feddersen, No. ACM 39072


A. Challenge to the Military Judge
       There is a strong presumption that a judge is impartial, and a
       party seeking to demonstrate bias must overcome a high hur-
       dle, particularly when the alleged bias involves actions taken
       in conjunction with judicial proceedings.
              ....
       Any conduct that would lead a reasonable [person] knowing all
       the circumstances to the conclusion that the judge’s impartiali-
       ty might reasonably be questioned is a basis for the judge’s dis-
       qualification. . . . When a military judge’s impartiality is chal-
       lenged on appeal, the test is whether, taken as a whole in the
       context of this trial, a court-martial’s legality, fairness, and im-
       partiality were put into doubt by the military judge’s actions.
       On appeal, the test is objective, judged from the standpoint of a
       reasonable person observing the proceedings.
United States v. Quintanilla, 56 M.J. 37, 44, 78 (C.A.A.F. 2001) (citations and
internal quotation marks omitted).
    Appellant never challenged the military judge’s impartiality during the
trial or otherwise objected on a similar basis. When asked at the beginning of
the proceedings whether he wished to challenge the military judge, he said
that he did not. However, we cannot say that he intentionally relinquished or
abandoned a challenge to the military judge, based on the military judge’s
later actions.
    Nevertheless, we have carefully reviewed the record of trial for plain er-
ror, to include those portions during which Appellant asserts the military
judge abandoned her neutral role. The military judge was hardly helpful to
the Prosecution. For example, while she properly allowed trial counsel to
continue to ask questions of his witness, in a vain attempt to lay an eviden-
tiary foundation, she ultimately sustained one of the Defense’s objections.
Appellant has not overcome the strong presumption that the military judge
was at all times impartial and never abandoned her proper role.
B. Assistant Trial Counsel’s Sentencing Argument
    Appellant complains for the first time on appeal about the following por-
tion of assistant trial counsel’s argument:
   ATC: So, when you weigh these aggravating factors and the total
        disregard he’s shown for the Air Force, you’ll see that he




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                   United States v. Feddersen, No. ACM 39072


           deserves no leniency. What Airman Feddersen hasn’t
           shown you today is an EPR showing that he’s a firewall-5. 4
           He’s served honorably. He’s done exceptionally well.
    MJ:    Just to be clear, if there was an EPR, you would have intro-
           duced it, correct?
    ATC: Yes, ma’am.
    MJ:    Okay, go on.
    ATC: But, he can’t show you an EPR, nobody can show you an
         EPR, because he’s managed to commit all of these crimes in
         one rating period . . . before one rating period.
(Ellipsis in original).
   Improper argument is a question of law that we review de novo. United
States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014) (citing United States v.
Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011)).
       Whether trial counsel’s comments improperly reference an ac-
       cused’s invocation of an accused’s constitutional right to remain
       silent is a question of law that this court reviews de novo. Unit-
       ed States v. Moran, 65 M.J. 178, 181 (C.A.A.F. 2007). When an
       objection is made to a nonconstitutional error, appellate courts
       determine whether the error materially prejudiced the sub-
       stantial rights of the accused. Article 59(a), UCMJ, 10 U.S.C. §
       859(a) (2006); United States v. Edwards, 35 M.J. 351, 355
       (C.M.A. 1992).
       When no objection is made during the court-martial, a counsel’s
       arguments are reviewed for plain error. United States v.
       Schroder, 65 M.J. 49, 57-58 (C.A.A.F. 2007). Plain error occurs
       when (1) there is error, (2) the error is plain or obvious, and
       (3) the error results in material prejudice. United States v.
       Maynard, 66 M.J. 242, 244 (C.A.A.F. 2008). Regardless of
       whether there was an objection or not, “[i]n the context of a
       constitutional error, the burden is on the Government to estab-
       lish that the comments were harmless beyond a reasonable




4 A “firewall-5” enlisted performance report (EPR) in the Air Force is an annual
evaluation with the highest rating (5) in all evaluated areas.




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                 United States v. Feddersen, No. ACM 39072


       doubt.” [United States v.] Carter, 61 M.J. [30,] 35 [(C.A.A.F.
       2005)] (citation omitted).
United States v. Flores, 69 M.J. 366, 369 (C.A.A.F. 2011).
   “The legal test for improper argument is whether the argument was erro-
neous 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)). When we determine that improper argument occurred
during the sentencing portion of the trial, we must determine whether or not
we can be “confident that [the appellant] was sentenced on the basis of the
evidence alone.” Id. (quoting United States v. Halpin, 71 M.J. 477, 480
(C.A.A.F. 2013)) (brackets in original).
   As noted by the Court of Appeals for the Armed Forces in Frey, the stand-
ard for determining prosecutorial misconduct was established by the Su-
preme Court in Berger v. United States, 295 U.S. 78 (1935). In Berger, the
Court stated that trial counsel:
       may prosecute with earnestness and vigor . . . . But, while he
       may strike hard blows, he is not at liberty to strike foul ones. It
       is as much his duty to refrain from improper methods calculat-
       ed to produce a wrongful conviction as it is to use every legiti-
       mate means to bring about a just one.
295 U.S. at 88. Trial counsel may “argue the evidence of record, as well as all
reasonable inferences fairly derived from such evidence.” Frey, 73 M.J. at 248
(quoting Baer, 53 M.J. at 237). However, it is error for trial counsel to make
arguments that “unduly . . . inflame the passions or prejudices of the court
members.” Id. (quoting United States v. Marsh, 70 M.J. 101, 102 (C.A.A.F.
2011)) (ellipsis in original). Trial counsel generally may not comment on the
failure of the defense to produce evidence. United States v. Taylor, 47 M.J.
322, 324 (C.A.A.F. 1997).
       It is black letter law that a trial counsel may not comment di-
       rectly, indirectly, or by innuendo, on the fact that an accused
       did not testify in his defense. Griffin v. California, 380 U.S.
       609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). Furthermore, he is
       not permitted to comment on an accused’s failure to produce
       witnesses in his behalf. United States v. Swoape, 21 M.J. 414
       (C.M.A. 1986). If such comments are made, the record must
       then be examined for prejudice to determine whether the error
       was harmless. Chapman v. California, 386 U.S. 18, 87 S. Ct.
       824, 17 L. Ed. 2d 705 (1967).
United States v. Mobley, 31 M.J. 273, 279 (C.M.A. 1990).



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                  United States v. Feddersen, No. ACM 39072


    Whenever trial counsel chooses to argue that an accused has not “shown”
the sentencing authority something, counsel treads backwards into a mine
field in over-sized galoshes while wearing a blindfold. Only the most experi-
enced advocate can do so without exploding any number of prejudicial mines
that would result in setting aside the sentence in an otherwise properly tried
court-martial. Assistant trial counsel here was not that experienced and the
argument was best left unsaid. However, the unique facts of this case saved
this unwary counsel.
    In context, it is clear that assistant trial counsel was commenting on the
fact that Appellant had not served long enough to receive an enlisted perfor-
mance report. The following phrases “he’s a firewall-5”; “[h]e’s served honora-
bly”; and “[h]e’s done exceptionally well”; 5 are clear references to what could
have been in a performance report, if there had been one. This is not evidence
that Appellant chose not to produce. Indeed, the Prosecution is required to
submit all of an accused’s performance reports. See Air Force Instruction 51-
201, Military Justice Administration, ¶ 8.13.3 (6 Jun. 2013). Apparently
confused by counsel’s ineffectual argument, the military judge clarified that
the Prosecution had not withheld any of Appellant’s performance reports.
   Assistant trial counsel’s awkward argument on the lack of Prosecution
evidence did not prejudice Appellant. Even if we were to interpret the argu-
ment as a comment on Appellant’s failure to offer some other mitigation
evidence, and assuming, arguendo that the argument implicated Appellant’s
constitutional rights, we are convinced that assistant trial counsel’s com-
ments were harmless beyond a reasonable doubt. 6




5The court reporter chose to transcribe the latter two phrases as separate sentences.
The court reporter’s choice does not render the record of trial as anything less than
substantially verbatim. However, the choice is misleading. In the context of the
argument, the phrases would have been better rendered as phrases joined to the
preceding sentence by semicolons or dashes. Nevertheless, we fully grasp the argu-
ment as given, intended, and interpreted by the military judge.
6 It would have been helpful and—in a closer case, essential—for the military judge
to have stated on the record that she did not consider assistant trial counsel’s
argument as indicating that Appellant had any obligation to produce any evidence.




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                United States v. Feddersen, No. ACM 39072


                             III. CONCLUSION
   The approved findings and sentence are correct in law and fact, and there
were no errors that materially prejudiced Appellant’s substantial rights.
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



                KURT J. BRUBAKER
                Clerk of the Court




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