The AFCCA affirmed the findings and sentence of Airman Austin L. Wilson, finding error but no material prejudice to Appellant’s substantial rights.
Appellant was convicted, pursuant to his pleas, of four specifications of wrongful use of controlled substances and three specifications of wrongful distribution of controlled substances, in violation of Article 112a, UCMJ. Officer members sentenced Appellant to a bad-conduct discharge, confinement for four months, forfeiture of $819.00 pay per month for four months, and reduction to the grade of E-1. The convening authority approved the sentence, but granted credit for 16 days of confinement, $125.00 of pay forfeiture per month for four months, and a one-grade reduction.
Wilson opinion here.
Airman Austin Wilson (Appellant) pleaded guilty to using and distributing marijuana on divers occasions, using MDMA on divers occasions and distributing it once; and using LSD on divers occasions and distributing it once. During the providence inquiry, Appellant stated he used LSD and MDMA five or six times, and on one occasion, gave three MDMA pills to his roommate, Senior Airman (SrA) DL. Appellant also admitted he gave two tabs laced with LSD to Airman (Amn) ER and received $30.00 in exchange. Appellant additionally explained that he used marijuana “more than a couple dozen times” during the first charged timeframe of six months, and “five to six times” during the second timeframe, which was less than a month. Appellant stated he smoked marijuana with SrA DW and showed him how to smoke marijuana out of a bong.
After the military judge found Appellant guilty, an agent with the Air Force Office of Special Investigations (AFOSI) was called to testify by the Government and stated that Appellant provided the names of “at least two or three” people AFOSI had not known to be drug users. The agent state he forwarded those names to other AFOSI detachments, but no evidence was offered to indicate what, if anything, happened to those named.
The Government also called Amn (formerly SrA) DW to testify, who took the stand wearing shackles. Amn DW stated he used marijuana with Appellant “[a]bout half a dozen” times and that Appellant always provided the marijuana. The assistant trial counsel then said to Amn DW on direct examination, “Now, we see you are in shackles. Do you want to tell us—.” She was then cut off by a defense objection. The military judge advised the members of the court to disregard both the question and the answer, as well as the fact that Amn DW was wearing shackles, stating, “It is of no relevance whatsoever, and you are to completely disregard it.”
During the sentencing argument for the Government, assistant trial counsel invited the members to sentence Appellant not just for his misconduct, but also for the way in which his actions negatively impacted other Airmen. According to the Court, assistant trial counsel “accused Appellant of jeopardizing or facilitating the destruction of the careers of other Airmen five times” and wove this theme throughout her sentencing argument, making it the last thing she argued before asking the members to sentence Appellant to a bad-conduct discharge, seven months of confinement, reduction to the grade of E-1, and forfeiture of two-thirds pay for seven months.
While the case was originally appealed on its merits, the Court specified an issue for the parties to address: whether Appellant’s sentence should be set aside based upon trial counsel arguing facts not in evidence.
Appellant argued his sentence should be reassessed and reduced, or alternatively set aside, due to the fact that assistant trial counsel referred to matters not in evidence during her sentencing argument. The Court agreed that assistant trial counsel erred in her sentencing argument by “repeatedly asserting Appellant had ‘facilitated the destruction of’ and ‘destroyed’ the careers and ‘future career opportunities’ of other Airmen, as those claims were wholly unsupported by the evidence.” However, the Court ultimately determined that Appellant was not prejudiced by this error.
The Court reviewed the issue of whether or not the argument was improper de novo, considering “whether the argument is erroneous and whether it materially prejudiced the substantial rights of the accused.” United States v. Frey, 73 M.J. 245, 248 (C.A.A.F. 2014) (quoting United States v. Baer, 53 M.J. 235, 237 (C.A.A.F. 2000)).
Trial counsel may “argue the evidence of record, as well as all reasonable inferences fairly derived from such evidence.” Baer, 53 M.J. 237. However, trial counsel is in error if she makes arguments that “unduly . . . inflame the passions or prejudices of the court members.” United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011).
The Court emphasized that while it was revealed that Appellant gave drugs to SrA DL, Amn ER, and Amn DW, there was no evidence introduced explaining what happened to these Airmen or their careers. While Amn DW did testify, and did so apparently while he was in confinement, the Court noted that no evidence was offered about Amn DW’s career or future, and further, that the military judge told the court members to “completely disregard” the fact that he was wearing shackles, as it was “of no relevance whatsoever.” The Court additionally explained in a footnote that no evidence was offered as to whether “Amn DW was being held in pretrial confinement or if he was serving post-trial confinement, much less whether such confinement was in any way related to Appellant’s offenses.”
Finding no evidence whatsoever that Appellant’s misconduct had any impact on the careers of the other Airmen, the Court determined that assistant trial counsel’s career-destruction argument referred to facts not in evidence and drew unreasonable inferences, and therefore, amounted to plain error.
Despite finding the assistant trial counsel’s sentencing argument amounted to plain error, the Appellant was not entitled to relief unless the Court found this error resulted in prejudice, which the Court characterized as a “close call”, but ultimately did not find.
The Court assessed prejudice using the factors identified by CAAF in United States v.Halpin: (1) severity of the error, (2) curative measures, and (3) weight of the evidence. 71 M.J. 477, 480 (C.A.A.F. 2013). With respect to sentencing arguments, the court must be confident an appellant “was sentenced on the basis of the evidence alone.” Frey, 73 M.J. at 248.
The Court found that assistant trial counsel’s error was significant “as it both exaggerated Appellant’s culpability and was drawn from evidence never admitted in Appellant’s trial.” The Court also found that no curative measures were taken as trial defense counsel never objected, but noted that lack of objection may have “minimal impact” when it comes to a prosecutor’s improper argument.
Despite the first two factors weighing in Appellant’s favor, the Court determined that Appellant’s sentence was “commensurate” with the crimes he admitted to and therefore, the assistant trial counsel’s error did not warrant relief. Intuitively, it seems impossible for the Court to be certain that the members were able to ignore the exaggerated arguments improperly raised by assistant trial counsel and sentence Appellant “based on the evidence in his case and solely on that evidence.” However, the Court stated it is important to consider that the 4 months of confinement the members sentenced Appellant to is significantly less than the 7 months requested by assistant trial counsel, as well as the 12-month maximum Appellant faced.
While the Court may view this sentence as “commensurate with his offenses”, it seems unlikely the Court was able to confidently determine this sentence “would likely have been adjudged even in the absence of trial counsel’s improper career-destruction argument.” Rather, the members may have very well sentenced Appellant to even less time in confinement if they were not exposed to the unsubstantiated arguments raised by assistant trial counsel.
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