United States v. Fernandez
ACM S32402
| A.F.C.C.A. | Nov 8, 2017Background
- Appellant, an Air Force airman, admitted to ingesting a potentially lethal one-gram dose of methamphetamine and to multiple prior uses while enlisted; a urinalysis and his own statements corroborated the use.
- He pleaded guilty at a special court-martial pursuant to a pretrial agreement to wrongfully using methamphetamine (Article 112a, UCMJ).
- Military judge sentenced him to a bad-conduct discharge, 30 days confinement, and reduction to E-1; convening authority approved.
- At sentencing, trial counsel argued for a punitive discharge and described civilian opportunities lost by the appellant; defense objected to some factual statements but not the punitive-discharge advocacy.
- Post-trial, the SJAR attached a Personal Data Sheet (PDS) omitting appellant’s overseas and combat service and a device to an award; appellant had waived submission of clemency matters and did not timely comment on the SJAR.
- On appeal, appellant argued (1) trial counsel’s sentencing argument improperly blurred punitive vs administrative separation and (2) the erroneous PDS deprived him of a meaningful opportunity for clemency.
Issues
| Issue | Appellant's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether trial counsel’s sentencing argument (advocating punitive discharge; describing loss of civilian opportunities) was improper and plain error | Trial counsel blurred lines between punitive discharge and administrative separation; this amounted to prosecutorial misconduct that prejudiced appellant and warrants setting aside the punitive discharge | Any improper argument did not produce prejudice; military judge (presumed to know law) sentenced based on evidence, so no plain error | No plain error; any potential misconduct did not materially prejudice appellant’s substantial rights; findings and sentence affirmed |
| Whether an erroneous PDS in the SJAR (omitting overseas/combat service and award device) denied appellant meaningful opportunity for clemency | Omitted laudable service deprived appellant of clemency opportunity and warrants new post-trial processing | Appellant waived clemency submission, did not timely comment on SJAR, and made no colorable showing of possible prejudice | No plain error; appellant failed to show some colorable possible prejudice; no relief warranted |
Key Cases Cited
- United States v. Frey, 73 M.J. 245 (C.A.A.F. 2014) (legal test for improper argument and whether sentence was based on evidence alone)
- United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000) (improper argument standard)
- United States v. Pabelona, 76 M.J. 9 (C.A.A.F. 2017) (plain error review when defense counsel fails to object)
- United States v. Meek, 44 M.J. 1 (C.A.A.F. 1996) (definition of prosecutorial misconduct)
- Berger v. United States, 295 U.S. 78 (U.S. 1935) (prosecutor must not overstep bounds of propriety and fairness)
- United States v. Fletcher, 62 M.J. 175 (C.A.A.F. 2005) (prejudice standard for prosecutorial misconduct)
- United States v. Scalo, 60 M.J. 435 (C.A.A.F. 2005) (erroneous SJAR/PDS and the low threshold for showing possible prejudice)
- United States v. Kho, 54 M.J. 63 (C.A.A.F. 2000) (plain error framework for post-trial processing errors)
- United States v. LeBlanc, 74 M.J. 650 (A.F. Ct. Crim. App. 2015) (de novo review for proper post-trial processing)
- United States v. Maynard, 66 M.J. 242 (C.A.A.F. 2008) (elements of plain error)