UNITED STATES v. Airman First Class Nicholas J. MALLETT, United States Air Force, 61 M.J. 761

OPINION OF THE COURT GENT, Judge: A general court-martial composed of officer members convicted the appellant, pursuant to his pleas, of using cocaine on divers occasions in violation of

Article 112(a), UCMJ, 10 U.S.C. § 912(a). The court members sentenced him to a bad-conduct discharge, confinement for 12 months, and reduction to the grade of E-l. The convening authority reduced the confinement to 8 months, but otherwise approved the remaining sentence. The appellant assigns two errors for our consideration:

(1) Whether the trial counsel committed plain error by injecting unlawful command influence into the proceedings during his sentencing argument; and

(2) Whether the sentence is inappropriately severe in light of the offenses and in comparison to the sentence of the appellant’s co-actor. Because we hold for the appellant on the first issue, we do not reach the remaining assignment of error. Background At trial, the appellant admitted to using cocaine twice. He told the military judge that his cocaine use occurred in the course of a single night at the off-base apartment of a fellow airman, who provided him the drug. This other airman was also convicted of divers use of cocaine at a court-martial that preceded the appellant’s.

The co-actor was sentenced to confinement for 4 months, restriction to base for 2 months, hard labor without confinement for 2 months, forfeiture of $500.00 pay per month for 6 months, and reduction to the grade of E-l. The appellant asserts that the trial counsel’s sentencing argument injected unlawful command influence into the proceedings because he made reference to commanders. In a portion of his argument, the trial counsel said: I was trying to think about how could I articulate the need for deterrence and the value of deterrence. How could I paint a picture of this that’s not just abstract legal talk?

I think back to commander’s calls that I’ve been at where the commander would warn us to stay away, and in as bold terms as they could, not to use drugs. Bad things can happen to you in your career if you do. You’ve been at those commander’s calls. And you know that you never hear more than that. Why is that? Because the commander doesn’t necessarily have the authority to decide to impose a bad conduct discharge, or to impose a period of confinement for 18 months. Why not? Because the commander can prefer charges and then it comes to a court, it comes to a group just like this.

It’s out of the commander’s hands in a lot of ways. But when you think about what if a commander could do that, what if a commander did stand up at commander’s call and was able to make a promise, “If you use cocaine in my unit, this will happen to you.” Make that a policy letter or something. What if the commander had the authority to do that in a unit full of airmen identical to this accused right here? What would he or she say to get their attention? Would he say, “Don’t use cocaine or you’ll get 40 days restriction to base, dang it?” I don’t think he would. Why? Because that’s not very scary, is it?

Would she say, “Don’t use cocaine or you’ll get 30 days extra duties?” No, she wouldn’t say that. That is not scary. That doesn’t get people’s attention. What would a commander say to get his unit’s attention and say, “I mean business about drugs,” if he had the authority to be the judge and jury in a case where you are, in essence, the jury deciding this?

I submit that a sentence that would get people’s attention, that would make airmen stand up and listen, and would possibly have the effect of keeping us from having so many of these cases involving airmen who have gone down this road of using cocaine and other illegal drugs is 18 months [of] confinement and a bad conduct discharge. That gets your attention. And if that doesn’t get your attention, then nothing’s going to get your attention. The appellant contends that this case is similar to United States v.

Sparrow, 33 M.J. 139, 140 (C.M.A.1991), where trial counsel expressly named the convening authority during his sentencing argument. In Sparrow, trial counsel argued, “General Graves has selected you. He said, ‘Be here. Do it. You have good judgment. I trust you. I know you’ll do the right thing.’ ” Id. at 140. Our superior court found these comments constituted error because they were “susceptible of [a] sinister

interpretation,” that is, a reminder to the members to impose the sentence advocated by the trial counsel. Id. at 141. The government, on the other hand, asserts that the trial counsel’s comments were proper and, in any event, should be reviewed using a plain error standard. The Sparrow court held the error was not “plain” because the “defense counsel, who was in the best position to assess the magnitude of the effect of trial counsel’s remarks on the members, did not feel compelled to object[.]” Id. Also, the military judge did not find it necessary to intervene. Id.

The Sparrow court further concluded the error was not plain because the members adjudged a sentence far less than that recommended by the trial counsel. Id. But, because of its “special interest” in cases involving “the possibility of illegal command influence,” the court declined to apply the waiver provision of Rule for Courts-Martial (R.C.M.) 1001(

g) concerning argument of counsel. Instead, it applied a “stricter scrutiny” standard and held that it was “ ‘convinced beyond a reasonable doubt’ that the accused ‘received a fair and impartial court-martial and that the outcome of the trial was not unlawfully influenced.’ ” Id. (citing United States v. Levite, 25 M.J. 334, 341 (C.M.A.1987) (Cox, J., concurring)). Analysis

Article 37(a), UCMJ, 10 U.S.C. § 837(a), prohibits a convening authority, commanding officer, or other military member from using unauthorized means to influence a court-martial.

Article 37(a), UCMJ, states: No authority convening a general, special, or

summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this

chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

The foregoing provisions of the subsection shall not apply with respect to (1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or (2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel. During argument on sentencing, the trial counsel may offer his or her own personal views concerning an appropriate sentence, but R.C.M. 1001(

g) expressly prohibits trial counsel from making reference to a convening authority or command policy: Argument____ Trial counsel may not in argument purport to speak for the convening authority or any higher authority, or refer to the views of such authorities or any policy directive relevant to punishment or to any punishment or quantum of punishment greater than that court-martial may adjudge.

Trial counsel may, however, recommend a specific lawful sentence and may also refer to generally accepted sentencing philosophies, including rehabilitation of the accused, general deterrence, specific deterrence of misconduct by the accused, and social retribution. Failure to object to improper argument before the military judge begins to instruct the members on sentencing shall constitute waiver of the objection. Our superior court equates unlawful command influence to prosecutorial misconduct. United States v. Thomas, 22 M.J. 388, 393 (C.M.A.1986).

It has held that “in cases where unlawful command influence has been exercised, no reviewing court may properly affirm [the] findings and sentence unless it is persuaded beyond a reasonable doubt that the findings and sentence have not been affected by the command influence.” Id. at 394. Our superior court also applies this standard when actions of those bearing “some mantle of command authority,” other than a convening authority or commander, improperly influence a court-martial. United States v.

Stombaugh, 40 M.J. 208, 211 (C.M.A.1994) (detailing “many instances of unlawful command influence,” including a staff judge advocate briefing to court members before trial). As we noted above, our superior court applied this standard in Sparrow, where the trial counsel made an explicit reference to the convening authority in his argument before court members.

When the issue of unlawful influence is raised on appeal, an appellant must: (1) show facts which, if true, constitute unlawful command influence; (2) show that the proceedings were unfair; and (3) show that unlawful command influence was the cause of the unfairness. United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F.1999) (citing Stombaugh, 40 M.J. at 213). See also United States v. Dugan, 58 M.J. 253, 258 (C.A.A.F.2003); Levite, 25 M.J. at 341. When we consider whether a trial counsel’s comments were improper, we examine them “in light of [their] context within the entire court-martial.” United States v.

Carter, 61 M.J. 30, 33 (C.A.A.F.2005). See also United States v. Baer, 53 M.J. 235, 238 (C.A.A.F.2000). “The focus of our inquiry should not be on words in isolation, but on the argument as Viewed in context.’ ” Id. (citing United States v. Young, 470 U.S. 1, 16, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Discussion Turning to the present case, we note at the outset there is no evidence indicating a convening authority or commander encouraged the trial counsel’s remarks.

Nonetheless, trial counsel implied that unnamed commanders favored the sentence he proposed when he asked the court members, ‘What would a commander say to get his unit’s attention and say, ‘I mean business about drugs,’ if he had the authority to be the judge and jury in a ease where you are, in essence, the jury deciding this.” We find this comment improper under R.C.M. 1001(g). Moreover, the trial counsel cloaked himself with the “mantle of command authority,” thereby creating the appearance of unlawful command influence. See Stombaugh, 40 M.J. at 211; United States v.

Allen, 31 M.J. 572, 590-91 (N.M.C.M.R.1990). In addition, the trial counsel asserted that if unnamed commanders could establish a policy on punishment, these policies would not include restriction to base or additional duties because these penalties are not “very scary” punishments. These comments were improper because they suggested that the court members should not impose hard labor without confinement, as recommended by the trial defense counsel, because their own commanders (or fellow commanders) would not find it sufficient to deter others.

We find that these comments were improper because, in effect, they brought the views of outside commanders into the courtroom. Thus, we conclude that trial counsel’s argument contained obvious errors.

Article 37(a), UCMJ, R.C.M. 1001(g), and United States v. Grady, 15 M.J. 275 (C.M.A.1983). See also United States v. Davis, 24 C.M.R. 235, 237, 1957 WL 4750 (C.M.A.1957) (it is the fact of the reference to the command policy that is condemned, not the source of the reference). We next consider the prejudicial impact of this argument within the context of the entire trial. We are convinced that the appellant has demonstrated that the proceedings were unfair and that the improper argument was the cause of the unfairness. Biagase, 50 M.J. at 151. See also Levite, 25 M.J. at 341.

The trial counsel’s errors were not just a brief slip of the tongue. He used the word “commander” 11 times throughout his argument. Nor were these errors rendered harmless by an immediate curative instruction from the military judge. Although the military judge later included a caution in her standard instructions that arguments of counsel represent solely their opinions, it was given too late to erase the impression left by the trial counsel’s comments.

Finally, considering the entire record before us, “we are not convinced that the sentence indicates a degree of leniency demonstrating complete disregard of the influence” of the argument. Stombaugh, 40 M.J. at 214; United States v. Wright, 37 C.M.R. 374, 377, 1967 WL 4266 (C.M.A.1967). Consequently, we hold that the trial counsel’s argument was plain error. Conclusion The findings are affirmed. The sentence is set aside. A rehearing on sentence may be ordered.