United States v. Murphy

U NITED S TATES A IR F OR CE
C OURT OF C R IMINAL A PPEALS
________________________
No. ACM S32629
________________________
U N ITED STATES
Appellee
v.
Louis K. MU RPHY
Senio r Airman (E-4), U.S. Air Fo rce, Appellant
________________________
Appeal from the United States Air Force Trial Judiciary
Decided 10 August 2021
________________________
Military Judge: Tobin C. Griffeth.
Sentence: Sentence adjudged 3 October 2019 by SpCM convened at Nel-
lis Air Force Base, Nevada. Sentence entered by military judge on 1
November 2019 and reentered on 23 June 2021: Bad-conduct discharge,
confinement for 3 months, reduction to the grade of E-2, and forfeiture
of $1,256.00 pay per month for three months.
For Appellant: Major Alexander A. Navarro, USAF.
For Appellee: Lieutenant Colo nel Brian C. Mason, USAF; Lieutenant
Colonel Matthew J. Neil, USAF; Major Jessica L. Delaney, USAF; Mary
Ellen Payne, Esquire; Jordan E. Michel (legal intern). 1
Before LEWIS, RAMÍREZ, and CADOTTE, Appellate Military Judges.
Judge RAMÍREZ delivered the opinion of the court, in which Senior
Judge LEWIS and Judge CADOTTE joined.
________________________
This is an unpublished opinion and, as such, does not serve as
precedent under AFCCA Rule of Practice and Procedure 30.4.
1 Mr. Michel was at all times supervised by an attorney admitted to practice before
this court.
United States v. Murphy, No. ACM S32629
________________________
RAMÍREZ, Judge:
A military judge found Appellant guilty, consistent with his pleas, of one
specification of a one-time wrongful use of a controlled substance (marijuana)
and two specifications of wrongful use of a controlled substance (marijuana) on
divers occasions, in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a; 2 and one specification of wrongful possession of a
controlled substance (marijuana), also in violation of Article 112a, UCMJ. The
dates of the offenses ranged from 1 December 2017 to 22 August 2019.
A special court-martial composed of a panel of officer members sentenced
Appellant to a bad-conduct discharge, confinement for three months, reduction
to the grade of E-2, and forfeiture of $1,256.00 pay per month for three months.
There was no plea agreement. In the convening authority’s initial Decision on
Action memorandum, the convening authority took “no action” on the findings
or on the sentence. The military judge entered judgment on 1 November 2019.
Appellant raises five issues on appeal: (1) whether the military judge
abused his discretion by instructing the members of the option to sentence Ap-
pellant to a fine; (2) whether the military judge abused his discretion by grant-
ing the prosecution’s challenge to First Lieutenant (1st Lt) BM during panel
selection; (3) whether the sentence was inappropriately severe; (4) whether the
convening authority improperly failed to take action in Appellant’s case; and
(5) whether it was plain error for trial counsel to suggest Appellant’s military
duties were affected by his marijuana use.
On 21 May 2021, we remanded the case to the Chief Trial Judge, Air Force
Trial Judiciary, to resolve a substantial issue with the convening authority’s
decision memorandum, finding that the action taken on Appellant’s adjudged
sentence was ambiguous and incomplete as reflected in raised issue (4). United
States v. Murphy, No. ACM S32629, 2021 CCA LEXIS 251, at *9 (A.F. Ct. Crim.
App. 21 May 2021) (unpub. op.). On 8 June 2021, Appellee moved for reconsid-
eration of our order to remand and requested we stay any remand proceed-
ings. 3 Appellant did not oppose the motion.
2 Referencesto the punitive articles of the UCMJ are to the Manual for Courts-Martial,
United States (2016 ed.). Unless otherwise specified, all other references to the UCMJ
and the Rules for Courts-Martial (R.C.M.) are to the Manual for Courts-Martial,
United States (2019 ed.).
3 The Government’s basis for reconsideration was based on reasoning from United
States v. Brubaker-Escobar, 81 M.J. ___, No. 20-0345, 2021 CAAF LEXIS 508, at *10
(C.A.A.F. 4 Jun. 2021), a decision that was subsequently recalled and the judgment
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United States v. Murphy, No. ACM S32629
Before we ruled on the motion for reconsideration and the request for a
stay, on 22 June 2021 the convening authority’s successor signed a second De-
cision on Action memorandum and took action on the sentence by approving it
in its entirety. The next day, 23 June 2021, the detailed military judge signed
a modified entry of judgment at 0728 hours.
Later on 23 June 2021, our court—unaware of the above—granted the Gov-
ernment’s motion for reconsideration, withdrew our 21 May 2021 opinion, and
determined the request for a stay was moot. United States v. Murphy, No. ACM
S32629, 2021 CCA LEXIS 356, at *1 (A.F. Ct. Crim. App. 23 Jun. 2021) (order).
On 21 July 2021, we granted the Government’s unopposed motion to attach the
second Decision on Action memorandum and the modified entry of judgment.
We are satisfied that the successor convening authority and the detailed
military judge acted within their respective authorities while the remand was
in effect for two reasons. First, our court did not issue a stay pending resolution
of the Government’s reconsideration motion. Second, the 22 June 2021 Deci-
sion on Action memorandum and the 23 June 2021 modified entry of judgment
were completed before our court granted the reconsideration motion and with-
drew our 21 May 2021 opinion.
We find the successor convening authority’s decision to approve the sen-
tence in its entirety complies with applicable law and the modified entry of
judgment correctly reflects the post-trial actions taken during the remand of
this case. 4 We conclude that Appellant is entitled to no further relief for issue
(4).
We now address raised issues (1), (2), (3), and (5) in Appellant’s assign-
ments of error brief. We also consider facially unreasonable appellate delay as
this opinion was released more than 18 months after docketing. Finding no
error materially prejudicial to Appellant, we affirm the findings and sentence.
I. BACKGROUND
An investigation into Appellant’s drug use was initiated after he tested pos-
itive via urinalysis for marijuana. Nevertheless, Appellant’s marijuana use
continued and he went on to test positive for marijuana nine more times.
vacated. ___M.J. ___, No. 20-0345, 2021 CAAF LEXIS 683, at *1 (C.A.A.F. 19 Jul.
2021).
4 The Statement of Trial Results failed to include the command that convened the
court-martial as required by R.C.M. 1101(a)(3). See United States v. Moody-Neukom,
No. ACM S32594, 2019 CCA LEXIS 521, at *2–3 (A.F. Ct. Crim. App. 16 Dec. 2019)
(per curiam) (unpub. op.). We authorized a detailed military judge to correct this on
remand and the missing information was added to the modified entry of judgment.
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United States v. Murphy, No. ACM S32629
Appellant first started using marijuana in December 2017, shortly after
having his wisdom teeth removed. He was stationed at Ellsworth Air Force
Base (AFB), South Dakota, at the time. He explained to the military judge that
he was already depressed after returning from his deployment to Afghanistan
and that the combination of the pain and the depression led him to smoke ma-
rijuana.
Appellant further explained that he used marijuana to “unwind after
work.” He would drive from South Dakota to Colorado once or twice per month,
buy cartridges of vape oil that contained marijuana, then drive back to South
Dakota. Once back in South Dakota, he would find a place to park, then smoke
marijuana out of a vaping cartridge. Appellant used marijuana daily while sta-
tioned at Ellsworth AFB until he received permanent change of station (PCS)
orders in December 2018 to Creech AFB, Nevada.
Once Appellant moved to Nevada in December 2018, he stopped smoking
marijuana for a “short period of time,” according to his providence inquiry.
However, he started using marijuana again in January 2019. This time he
would buy the marijuana in the Las Vegas area and would also have his ex-
girlfriend buy him marijuana. Appellant admitted that he used marijuana
daily from January 2019 until he was restricted to base in mid-September
2019.
According to the stipulation of fact in this case, on 16 April 2019 Appellant
was selected for random urinalysis testing. His sample was tested by the Air
Force Drug Testing Laboratory (AFDTL), where it was determined to be posi-
tive for tetrahydrocannabinol (THC), the primary active constituent of mariju-
ana. When Appellant’s command was notified of the positive result, he was
escorted to the Air Force Office of Special Investigations (AFOSI) and inter-
viewed by AFOSI agents. AFOSI also obtained consent for the search of Appel-
lant’s car, which contained what Appellant described as a “spent” marijuana
vaping cartridge. This vaping cartridge still contained marijuana residue, for
which act Appellant pleaded guilty to wrongful possession of marijuana. On
the same day that he was taken to AFOSI, Appellant was informed that he
would be required to continue providing urine samples until he provided a sam-
ple that tested negative for controlled substances. After the initial positive
drug sample, Appellant tested positive for marijuana an additional nine times.
After the last positive sample, Appellant’s commander restricted him to base,
and he stopped testing positive. He was still restricted to base at the time of
his court-martial.
Because Appellant pleaded guilty without the protection of a plea agree-
ment, the maximum punishment he faced was forfeiture of two-thirds pay per
month for 12 months, reduction to E-1, confinement for 12 months, and a bad-
conduct discharge. A fine was also an authorized sentence.
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United States v. Murphy, No. ACM S32629
II. D ISCUSSION
A. Sentencing Instructions
1. Additional Background
During a session held pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a),
between the military judge and counsel, trial counsel requested the military
judge provide an instruction to the members authorizing a fine. Trial counsel
argued that a fine was an authorized punished under Rule for Courts-Martial
(R.C.M.) 1003 and that Appellant had been unjustly enriched “because [Appel-
lant had] been violating the UCMJ for about two years and . . . getting paid.”
Later, trial counsel argued to the military judge that unjust enrichment was
not a prerequisite to imposing a fine, citing United States v. Stebbins, 61 M.J.
366 (C.A.A.F. 2005) (overruled on other grounds). Trial defense counsel ob-
jected, argued that this was not a case in which a fine was appropriate because
there was no unjust enrichment, and argued that Stebbins was distinguisha-
ble.
Ultimately, the military judge provided the instruction on a fine as an au-
thorized punishment to the members to consider, but did incorporate the fol-
lowing language from the Discussion to R.C.M. 1003(b)(3): “A fine normally
should not be adjudged against a member of the armed forces unless the ac-
cused was unjustly enriched as a result of the offense of which convicted.” Once
the military judge drafted the instruction, he read it into the record and al-
lowed both sides the opportunity to object. Trial counsel and trial defense coun-
sel did not object to the additional language; however, the Defense maintained
its general objection to providing the members any instruction regarding a fine.
As to the issue of the fine as a punishment option, the military judge in-
structed the panel as follows:
Fine. This court may adjudge a fine, either in lieu of, or in addi-
tion to, forfeitures. If you should adjudge a fine, the amount of
the fine, along with any forfeitures that you adjudge, may not
exceed the total amount of forfeitures which may be adjudged,
that is, forfeiture of two-thirds pay per month for 12 months. A
fine, when ordered executed, makes the accused immediately li-
able to the United States for the entire amount of the fine. In
your discretion, you may adjudge a period of confinement to be
served in the event the fine is not paid. Such confinement to en-
force payment of the fine would be in addition to any other con-
finement you might adjudge and the fixed period being an equiv-
alent punishment to the fine. The total of all confinement ad-
judged, however, may not exceed 12 months. However, a fine
normally should not be adjudged against a member of the Armed
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United States v. Murphy, No. ACM S32629
Forces unless the accused was unjustly enriched as a result of
the offense of which he is convicted.
Ultimately, trial counsel did not recommend a fine during sentencing argu-
ment. Instead, trial counsel argued:
A fine is also a punishment that is available. It’s not one that the
[G]overnment is seeking in this case, but you should know that
there are punishment options available to you that we are not
seeking. We’re not trying to throw the book at him, and you saw
that in our case. We are not trying to pile on here. We’re taking
him at what he said and giving you some more information. We
are not trying to pile on because, honestly, 20 months of daily
use is enough.
The members did not adjudge a fine as part of Appellant’s sentence.
2. Law
“We consider allegations of error involving mandatory instructions under a
de novo standard of review. We review issues concerning non-mandatory in-
structions for an abuse of discretion” United States v. Forbes, 61 M.J. 354, 357–
58 (C.A.A.F. 2005) (citations omitted). “A trial judge has broad discretion to
decide what instructions to give court members, and we review that discretion
for abuse. The rule applies to sentencing instructions as well.” United States v.
Miller, 56 M.J. 764, 765 (A.F. Ct. Crim. App. 2002) (citations omitted). The
“abuse of discretion standard is a strict one.” United States v. Eugene, 78 M.J.
132, 134 (C.A.A.F. 2018) (internal quotation marks and citation omitted). “To
find an abuse of discretion requires more than a mere difference of opinion—
the challenged ruling must be arbitrary, fanciful, clearly unreasonable, or
clearly erroneous.” United States v. Jasper, 72 M.J. 276, 279–80 (C.A.A.F.
2013) (citation omitted).
R.C.M. 1003(b) authorizes a court-martial to adjudge eight different pun-
ishments. A fine is the third enumerated punishment authorized under R.C.M.
1003(b). However, “[a] fine normally should not be adjudged against a member
of the armed forces unless the accused was unjustly enriched as a result of the
offense of which convicted.” R.C.M. 1003(b)(3), Discussion. Nonetheless, “the
use of ‘normally’ in the rule’s nonbinding discussion indicates that ‘unjust en-
richment’ is not always a prerequisite to imposing a fine as part of an accused’s
sentence.” Stebbins, 61 M.J. at 370.
3. Analysis
Although Appellant acknowledges that he did not receive a fine as part of
his sentence, he argues that the fine issue was nothing more than subterfuge
on the part of the Government. Specifically, Appellant claims that trial counsel
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United States v. Murphy, No. ACM S32629
“used the instruction as a means to obtain the sentence the Government actu-
ally wanted.” Appellant reasons that by having more punishment options in
front of the members, the trial counsel misled the members into believing the
Government’s sentence recommendation was more reasonable by not request-
ing a fine. We find the military judge did not abuse his discretion.
We begin our analysis by agreeing with Appellant on two points. First, Ap-
pellant argues that “there were no facts and circumstances requiring a fine
instruction,” and we agree. The option of a fine was not a mandatory instruc-
tion. Instead, as a non-mandatory instruction, we review the military judge’s
decision to provide the fine instruction for an abuse of discretion. Second, we
agree with Appellant that there is at least some appearance of a sleight of hand
on the part of trial counsel. However, the mere appearance of possible subter-
fuge does not mean that is what actually occurred. Furthermore, instructing
the members with regard to a fine did not mislead the members because a fine
was an authorized punishment which could have been adjudged.
This leaves us with the question of whether the military judge’s ruling to
include the requested fine instruction constituted an arbitrary, fanciful, clearly
unreasonable, or clearly erroneous action. First, we find that the instruction
was correctly written as a matter of law. We find that while there was no rea-
sonable argument that Appellant was unjustly enriched, the remainder of the
military judge’s instruction ensured the members would not be misled regard-
ing when a fine is normally appropriate. By including the language, “a fine
normally should not be adjudged against a member of the Armed Forces unless
the accused was unjustly enriched as a result of the offense of which he is con-
victed,” the military judge put the instruction into proper context for the mem-
bers and tailored the instruction to the case. Accordingly, the military judge’s
ruling to include the fine instruction was not arbitrary, fanciful, clearly unrea-
sonable, or clearly erroneous.
Because the military judge did not abuse his discretion, we find that Ap-
pellant is not entitled to relief.
B. Challenge to 1st Lt BM for Actual and Implied Bias
Appellant challenges the military judge’s findings of both actual and im-
plied bias which led to 1st Lt BM’s excusal from Appellant’s court-martial
panel. Appellant urges us not to provide the military judge the deference nor-
mally accorded because the military judge did not explain his reasoning on the
record. Appellant argues he suffered prejudice because the military judge’s “de-
cision to grant the [P]rosecution’s challenge to [1st] Lt BM prevented [Appel-
lant] from having a fair and impartial panel and likely led to a harsher ad-
judged sentence.” Appellant further elaborates that prejudice exists because
the Government was able to successfully strike “all three of the members it
desired,” specifically, by having two of its three challenges for cause granted
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United States v. Murphy, No. ACM S32629
and using its peremptory challenge to strike the individual it had unsuccess-
fully challenged for cause. This “combined with the severe sentence adjudged
in the case for a relatively minor offense cast doubt on whether [Appellant]
received a fair and impartial [sic] in the eyes of the public and the accused.”
For the reasons described below, we do not find prejudice.
1. Additional Background
During the court member selection process, the military judge asked the
members whether they could follow standard instructions regarding a range of
sentences:
MJ: I will instruct you on the full range of punishments, from no
punishment, up to the maximum punishment. You should con-
sider all forms of punishment within that range. Consider
doesn’t necessarily mean that you would vote for a particular
punishment. Consider means that you think about and make a
choice in your mind, one way or the other, as to whether that’s
an appropriate punishment. Each member must keep an open
mind and not make a choice, nor foreclose from consideration
any possible sentence, until the closed session for deliberations
and voting on the sentence. Can each of you follow this instruc-
tion? Affirmative response from all members.
After the military judge asked the standard Military Judges’ Benchbook5
questions, trial counsel asked the entire venire “if anybody believes that twelve
months of confinement could never be a part of an appropriate sentence for
using marijuana.” Three members answered in the affirmative, including 1st
Lt BM. As a follow-up question, trial counsel asked, “[D]oes anyone believe that
a bad-conduct discharge could never be part of a just sentence for using mari-
juana?” No member answered in the affirmative. When 1st Lt BM returned to
the courtroom for individual voir dire, trial counsel asked 1st Lt BM follow-up
questions:
Q [Trial Counsel]. And regardless of whatever the question was,
can you just talk to us about what your thoughts are on that?
A [1st Lt BM]. Just, I don’t know what the old maximum pun-
ishments used to be, but given the recent trend of decriminali-
zation alone, I think the punishments should also be turning the
other way as well, but obviously there are still repercussions
they have to have.
5 Department of the Army Pamphlet 27–9 at 54–56 (29 Feb. 2020).
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United States v. Murphy, No. ACM S32629
Q. Some repercussions, but heavier punishments may not [be]
appropriate in a case where marijuana use is the charge?
A. Yes.
Q. So, the two that we specifically asked about, 12 months con-
finement, is that something that you feel like, would be maybe
too severe for a marijuana use?
A. Yes.
Q. We asked about a bad conduct discharge, is that something
you feel like might be too severe for a marijuana use?
A. Not necessarily.
...
Q. For use, is -- so we talked about 12 months of confinement,
but confinement generally is a type of punishment, is that some-
thing that you feel is appropriate or not appropriate for mariju-
ana use?
A. Again, I don’t know if confinement all the way up there is
necessarily a good punishment.
When trial defense counsel had an opportunity to ask 1st Lt BM questions
during individual voir dire, further questioning on this topic occurred:
Q [Trial Defense Counsel]. So, in talking about that maximum
punishment, the military judge will say that you can at least
consider that as a possible punishment, even if you don’t impose
that. Is that something that you could do?
A [1st Lt BM]. Considering? Yeah, sure, I could consider.
...
Q. And you feel like you would be able to follow the military
judge’s instructions about what the law is?
A. Yes.
Q. And what the punishment in this case is, up to the maximum?
A. Yes.
The military judge then asked individual voir dire questions of 1st Lt BM
as follows:
Q [Military Judge]. So if you are instructed . . . that you must
consider ----
A [1st Lt BM]. Yes ----
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United States v. Murphy, No. ACM S32629
Q. From zero days to 12 months is that within your ability to
consider. Or are you, because of the trends that you talked about,
of an opinion that well, it doesn’t deserve 12, just about no mat-
ter what?
A. Not necessarily, I guess it would be based on the facts of the
case.
Q. So could you follow the instructions I give you?
A. Yes.
Q. Can you look at the facts of the individual case as it’s pre-
sented to you?
A. Yes.
Q. Can you consider the full spectrum, whether it’s a bad conduct
discharge, forfeitures, whatever it may be, or follow the law as it
is today?
A. Yes.
The Government challenged 1st Lt BM for “at the very least, implied bias”
and trial defense counsel objected to the challenge. After hearing argument
from counsel, the military judge put the following analysis on the record:
MJ: With regard to the challenge for cause of First Lieutenant
[BM], I’ve considered the standard for both actual and implied
bias. The test for actual bias of court members is whether any
bias is such that the court members will not yield to the evidence
presented or the military judge’s instructions. Having observed
the member’s demeanor, and having had an opportunity to as-
sess the credibility, in response to the question posted, I do find
actual bias. He did say that he would not consider the 12 months.
However, when questioned, I agree. He agreed that he might
consider all the facts. But then looking at his demeanor and the
way he hemmed and hawed, if you will, when he was being asked
those things, the test for implied bias is objective. When asked
whether in the eyes of the public the challenged member’s cir-
cumstances do injury to the perception or impair appearance of
fairness in the military justice system, i.e. whether the members
in the same position as a member whose impartiality is chal-
lenged would be prejudiced and biased. Implied bias is viewed
through the eyes of the public and focuses on perception or ap-
pearance of fairness of the military justice system.
Having observed the member’s demeanor, and having had the
opportunity to assess the member’s credibility and responses to
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United States v. Murphy, No. ACM S32629
the questions posed, while I believe there is actual bias, I defi-
nitely believe that there is an implied bias. I do find that through
the eyes of the public, Lieutenant [BM]’s participation as a court
member in this case does meet the standard of implied bias.
Although Lieutenant [BM] at the times indicated that he would
consider all of the facts, he repeatedly said that he would have
difficulty or could not give a 12-month sentence in the case based
solely on the evidence submitted.
So therefore, I am going to grant the government’s request that
First Lieutenant [BM] be stricken for cause. Although I will ad-
mit, it was close.
(Emphasis added).
2. Law
A military judge’s decision on a challenge for cause is reviewed for a “clear
abuse of discretion.” United States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F.
2006) (internal quotation marks and citation omitted). “An abuse of discretion
occurs if the military judge’s findings of fact are clearly erroneous or if the de-
cision is influenced by an erroneous view of the law. A military judge’s ruling
on a challenge for cause is given great deference.” Id. (internal quotation marks
and citations omitted).
“[A] panel member shall be excused for cause when the member should not
sit ‘in the interest of having the court-martial free from substantial doubt as to
legality, fairness, and impartiality.’” Id. at 36 (quoting R.C.M. 912(f)(1)(N)).
“The test for actual bias is whether any bias is such that it will not yield to
the evidence presented and the judge’s instructions.” United States v. Terry, 64
M.J. 295, 302 (C.A.A.F. 2007) (internal quotation marks and citation omitted).
For implied bias challenges, we provide less deference than abuse of discre-
tion, but more deference than de novo review. United States v. Dockery, 76 M.J.
91, 96 (C.A.A.F. 2017) (citation omitted). “In the course of reviewing the mili-
tary judge’s ruling on a challenge for cause, it is appropriate to recognize the
military judge’s superior position to evaluate the demeanor of court members.”
Quintanilla, 63 M.J. at 35 (internal quotation marks and citation omitted).
“Although it is not required for a military judge to place his or her implied bias
analysis on the record, doing so is highly favored and warrants increased def-
erence from appellate courts.” Dockery, 76 M.J. at 96 (citation omitted).
“R.C.M. 912(f)(1)(N) applies to both implied and actual bias.” Dockery, 76
M.J. at 96 (citation omitted). “Under this provision, a member who has ‘an in-
elastic opinion concerning an appropriate sentence for the offenses charged’
may be challenged.” Quintanilla, 63 M.J. at 36 (quoting R.C.M. 912(f)(1)(N),
11
United States v. Murphy, No. ACM S32629
Discussion) (additional citation omitted). Additionally, the military judge
should ask “the critical questions that might fill any implied bias gaps left by
counsel.” United States v. Clay, 64 M.J. 274, 277 (C.A.A.F. 2007).
“Implied bias exists when most people in the same position as the court
member would be prejudiced. It is evaluated objectively under the totality of
the circumstances and through the eyes of the public, reviewing the perception
or appearance of fairness of the military justice system.” Dockery, 76 M.J. at
96 (internal quotation marks and citations omitted). Central to that “objective
test is the consideration of the public’s perception of fairness in having a par-
ticular member as part of the court-martial panel.” Id. (internal quotation
marks and citation omitted). “While cast as a question of public perception,
this test may well reflect how members of the armed forces, and indeed the
accused, perceive the procedural fairness of the trial as well.” Peters, 74 M.J.
at 34.
If a military judge erroneously grants a government challenge for cause,
and the error is not a constitutional error, then the appellant must demon-
strate prejudice. Dockery, 79 M.J. at 99. An appellant must show that the panel
that ultimately sentenced him was biased or created substantial doubt as to
the court-martial’s legality, fairness, and impartiality. See id. Additionally, an
appellant suffers no prejudice where he cannot demonstrate that the ruling
had an “impact on the defense’s right to exercise a peremptory challenge,”
Quintanilla, 63 M.J. at 37, or that any of the members who sat on the panel
“should have been disqualified,” Dockery, 76 M.J. at 99 (internal quotation
marks and citations omitted).
3. Analysis
Here, the military judge’s analysis for both actual and implied bias was
based on erroneous facts. Contrary to the military judge’s recitation of the
facts, 1st Lt BM never said that he would not consider 12 months of confine-
ment. In fact, in response to the military judge’s question, he joined the rest of
the venire in affirmatively responding that he would follow the military judge’s
instruction to consider the full range of punishments, from no punishment, up
to the maximum punishment. Additionally, 1st Lt BM did not say that he
“might consider” all the facts. Instead, he clearly stated that he would consider
all the facts and follow the military judge’s instructions.
As to the issue of actual bias, the military judge’s reliance on incorrect facts
led to an erroneous application of those facts to the law. There is nothing in
the record to support the position that 1st Lt BM held any bias that would not
yield to the evidence presented and the military judge’s instructions. Accord-
ingly, the military judge erred in finding actual bias and granting the challenge
for cause using this basis.
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United States v. Murphy, No. ACM S32629
As to the issue of implied bias, we also find that the military judge erred in
granting the challenge. While the military judge stated on the record that he
observed 1st Lt BM’s demeanor, the military judge never described 1st Lt BM’s
demeanor. Although the military judge stated that he had an opportunity to
assess 1st Lt BM’s credibility, the military judge did not say what his opinion
of 1st Lt BM’s credibility was. Finally, although the military judge claimed 1st
Lt BM “hemmed and hawed, if you will, when he was being asked those things,”
he did not explain what “hemmed and hawed” meant to him, in general or spe-
cifically in this situation. 6 Here, because the military judge did not place his
implied bias analysis on the record, there is no increased deference from this
court. Put plainly, there is nothing in the record as articulated by the military
judge to demonstrate that keeping 1st Lt BM as a panel member would cause
concern about a real or perceived potential for command influence in courts-
martial or cause concern about the public’s perception of fairness in having 1st
Lt BM as part of the court-martial.
However, this does not end our analysis. Even with the court’s findings as
to the actual and implied bias, we are required, under both Quintanilla and
Dockery, to ask three questions. First, did the military judge’s erroneous ruling
have an impact on Appellant’s right to exercise a peremptory challenge? Sec-
ond, of those members who sat on the panel, did any of them hold a bias against
Appellant or should they otherwise have been disqualified? Third, of those
members who sat on the panel, did their presence create substantial doubt as
to the court-martial’s legality, fairness, and impartiality? See Dockery, 76 M.J.
at 98–99; Quintanilla, 63 M.J. at 36.
The first two questions are easily disposed of. We answer the first question
in the negative. There is nothing before us to conclude that the military judge’s
excusal of 1st Lt BM had an impact on Appellant’s right to exercise a peremp-
tory challenge. Appellant had an opportunity to exercise a peremptory chal-
lenge and chose not to use it. As to the second question, Appellant does not
allege that any of the members who sat on the panel held a bias against him
or otherwise should have been disqualified. In fact, Appellant challenged no
one for cause.
Finally, as to the third question—specifically, whether the presence of
members who sat on the panel created substantial doubt as to the court-mar-
tial’s legality, fairness, and impartiality—Appellant claims that 1st Lt BM’s
excusal prevented Appellant from having a fair and impartial panel and likely
led to a “harsher” and “severe” adjudged sentence.
6 While we recognize
that the phrase “hemmed and hawed” is a colloquialism, we are
unsure what it meant to this military judge or what actions or statements from the
panel member were hemming and hawing.
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United States v. Murphy, No. ACM S32629
Appellant’s argument fails for two reasons. First, there is no evidence be-
fore us regarding how 1st Lt BM’s absence prevented Appellant from having a
fair and impartial panel. We would first have to find that there was an unfair
and partial panel. We would then have to find that having 1st Lt BM on the
panel would remedy the unfair and partial panel, thereby creating a fair and
impartial panel. We simply cannot make those leaps and there is nothing in
the record to support making them. Second, the focus of the voir dire questions
with 1st Lt BM were whether he would consider 12 months of confinement as
a possible sentence. Appellant did not need 1st Lt BM on his panel to prevent
him from receiving 12 months confinement because Appellant only received
three months of confinement. Finally, 1st Lt BM made clear that regardless of
his thoughts about confinement as it related to marijuana use, he did not have
the same thoughts as it related to a bad-conduct discharge. 7
Accordingly, we find that Appellant was not prejudiced by the military
judge’s ruling to exclude 1st Lt BM from the panel.
C. Severity of the Sentence
Appellant argues that his sentence was inappropriately severe in light of
the criminal offenses, his record of service, and the matters presented in miti-
gation. As to the criminal offenses, Appellant argues that the drugs he used
were “legal within the laws of his local jurisdiction” and that this should be
considered as a matter in mitigation. Appellant also points out that he cooper-
ated with law enforcement, that he pleaded guilty without the benefit of an
agreement, and that he deployed to Afghanistan. Appellant specifically claims
that the combination of confinement and a punitive discharge renders the sen-
tence inappropriately severe.
1. Law
This court reviews sentence appropriateness de novo. United States v.
Baier, 60 M.J. 382, 384–85 (C.A.A.F. 2005). “Sentence appropriateness in-
volves the judicial function of assuring that justice is done and that the accused
gets the punishment he deserves.” United States v. Healy, 26 M.J. 394, 395
(C.M.A. 1988). Sentence appropriateness should generally “be judged by ‘indi-
vidualized consideration’ of the particular accused ‘on the basis of the nature
and seriousness of the offense and the character of the offender.’” United States
v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
7 We also note that at the conclusion of challenges, eight members were left. The mem-
bers were randomly assigned numbers to determine the four who would hear Appel-
lant’s case because the convening authority did not authorize alternates to be empan-
eled. Even if 1st Lt BM had not been challenged for cause, Appellant cannot demon-
strate that 1st Lt BM’s name would have been among the first four chosen by the ran-
dom number generator.
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United States v. Murphy, No. ACM S32629
27 C.M.R. 176, 180–81 (C.M.A. 1959)). Although we are accorded great discre-
tion in determining whether a particular sentence is appropriate, we are not
authorized to engage in exercises of clemency. United States v. Nerad, 69 M.J.
138, 146 (C.A.A.F. 2010).
2. Analysis
Appellant faced a maximum punishment of a reprimand, forfeiture of two-
thirds pay per month for 12 months, the possibility of a fine, reduction to the
grade of E-1, confinement for 12 months, and a bad-conduct discharge. After
listening to the evidence of the underlying criminal offenses as well as the mat-
ters in mitigation and aggravation, the panel sentenced Appellant to forfeiture
of $1,256.00 of pay per month for three months, reduction to the grade of E-2,
confinement for three months, and a bad-conduct discharge.
We have considered that Appellant deployed on behalf of the Air Force and
the type of work he did; that he had served over four years on active duty; that
he was awarded the Aerial Achievement Medal; that he was depressed; that
he was reluctant to see mental health professionals; that he cooperated with
law enforcement; and that he pleaded guilty. We have also compared all of this
to the fact that Appellant illegally used drugs every day from December 2017
to December 2018 and January 2019 to mid-September 2019. While assigned
to Ellsworth AFB, Appellant would drive from South Dakota to Colorado, just
to get the drug. Once stationed in Nevada, where Appellant was still not law-
fully permitted to use marijuana, he resumed using the drug daily after a short
period of time and would also employ the assistance of his ex-girlfriend to ob-
tain marijuana. Of more concern is that after he was caught using marijuana,
Appellant did not stop using it until he was restricted to base.
Based on our individualized consideration of Appellant, his character, his
service record, and the nature and seriousness of the offenses, we find the ap-
proved sentence is appropriate in this case.
D. Trial Counsel’s Sentencing Argument
Appellant contends that trial counsel, in his argument, “suggested” that
Appellant was under the effects of marijuana “while working” as a sensor op-
erator and there was no evidence to support such a “suggestion.” Appellant
further argues that “[s]uggesting that [Appellant]’s mind was ‘messed up’
while he was performing his duties likely made the members think that Amer-
ica’s national security was at risk due to his marijuana use.”
Appellant concedes that trial defense counsel did not object to trial coun-
sel’s argument.
1. Additional Background
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United States v. Murphy, No. ACM S32629
As Appellant was providing a factual basis for his guilty plea, he explained
to the military judge that he “would use [marijuana] to unwind after work, but
[he] never went to work high.” Additionally, in his unsworn statement, Appel-
lant explained, “I never showed up to work while intoxicated. I did not let this
affect my job performance.” However, during sentencing argument, trial coun-
sel stated:
Now, in paragraph 10 of [the stipulation of fact], it talks about
marijuana. And it’s a Schedule I drug, and this is the evidence
that you have before you, Members. In voir dire, we talked a lot
about people’s perceptions of marijuana and different views from
society, and tendencies, but this is the actual evidence that you
have. So, according to the instructions, this is what you consider.
And here, it’s a Schedule I drug, defined as by [sic] the federal
[G]overnment as a drug with no currently accepted medical use,
and a high potential for abuse. So, THC is the main constituent,
and it talks about having a [psychoactive] effect. It literally
messes with your mind. That is the point of it. That’s one of the
reasons that people take marijuana. And it’s one of the reasons
that Airman Murphy explained that he took marijuana. It can
literally affect perception, and coordination, and may be respon-
sible for impairments in learning, associative processes, and psy-
chomotor behavior.
Members, in the next Prosecution Exhibit, the Personal Data
Sheet, you see there that the Air Force specialty code base is
MQ-9 Sensor Operator. And throughout his evidence, he talks
about what it is that he does. So, look at the effects of marijuana
from Prosecution Exhibit 1, recognize that that is what this MQ-
9 Sensor Operator was putting into his body every day for at
least 20 months.
The military judge did not stop trial counsel’s argument, nor did he provide
any additional instructions specifically related to that argument. Although
trial defense counsel did not object, he responded to trial counsel’s argument:
And you also have to look at the specific acts that [Appellant]
committed; we’re talked about using marijuana. There’s no indi-
cation that he distro’ed marijuana; there’s no indication that he
introduced it onto base; there’s no indication that he went in
high to work. I understand that he is a sensor operator, but don’t
you believe that if there was evidence out there showing that he
had actually showed up and it was affecting him day to day, we’d
have evidence of that? But you don’t have that in front of you.
2. Law
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United States v. Murphy, No. ACM S32629
The issue of “improper argument is a question of law that we review de
novo.” United States v. Marsh, 70 M.J. 101, 106 (C.A.A.F. 2011) (citation omit-
ted). As trial defense counsel did not object to the complained-of comments, we
review the issue for plain error. Id. (citation omitted). To be entitled to relief,
an appellant “must prove the existence of error, that the error was plain or
obvious, and that the error resulted in material prejudice to a substantial
right.” Id. “In this context, material prejudice to the substantial rights of the
accused occurs when an error creates an unfair prejudicial impact on the court
members’ deliberations.” United States v. Norwood, 81 M.J. 12, 20 (C.A.A.F.
2021) (internal quotation marks, citations, and brackets omitted). The require-
ment contemplates a showing of a “reasonable probability that, but for the er-
ror, the outcome of the proceeding would have been different.” Id. (internal
quotation marks and citations omitted).
“When arguing for what is perceived to be an appropriate sentence, the trial
counsel is at liberty to strike hard, but not foul, blows.” United States v. Baer,
53 M.J. 235, 237 (C.A.A.F. 2000) (citations omitted). “It is appropriate for trial
counsel—who is charged with being a zealous advocate for the Government—
to argue the evidence of record, as well as all reasonable inferences fairly de-
rived from such evidence.” Id. (citation omitted).
What is not appropriate is an argument “aimed at inflaming the passions
or prejudices of the court members.” Id. (internal quotation marks and cita-
tions omitted). Additionally, when a trial counsel has no justifiable basis for
his argument that an accused’s membership in a certain military unit (as op-
posed to any other organization) was an aggravating circumstance, but still
argues it, we will find trial counsel’s comments improper. United States v. Col-
lins, 3 M.J. 518, 520–21 (A.F.C.M.R. 1977). Put more succinctly, “absent evi-
dence an accused’s crimes in any way affected his duty[,] such argument is
impermissible.” United States v. Gruninger, 30 M.J. 1142, 1143 (A.F.C.M.R.
1990) (emphasis removed). We have described this as “tantamount to black
letter law” and found that doing so “is simply not allowed unless there is some
connection between an accused’s duty position and the commission of the
crime.” United States v. Rhodes, 64 M.J. 630, 632 (A.F. Ct. Crim. App. 2007),
aff’d, 65 M.J. 310 (C.A.A.F. 2007).
3. Analysis
Our review of trial counsel’s argument troubles us. We find that trial coun-
sel had no justifiable basis for his suggestion that Appellant’s job category, as
a MQ-9 Sensor Operator, was a matter in aggravation. In fact, the record be-
fore us provides the opposite—that Appellant never went to work high or while
feeling the effects of marijuana. As there was no evidence that Appellant’s
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United States v. Murphy, No. ACM S32629
crimes in any way affected his duty, such argument is impermissible. There-
fore, we find error. Because this error is “tantamount to black letter law,”
Rhodes, 64 M.J. at 632, we find the error obvious.
Therefore, the remaining question is whether this error created an unfair
prejudicial impact on the court members’ deliberations—whether Appellant
has shown “a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.” United States v. Norwood, 81 M.J. 12,
20 (C.A.A.F. 2021) (internal quotation marks and citations omitted). Here, we
simply cannot make such a finding.
First, Appellant has not demonstrated that trial counsel’s comment created
any unfair prejudicial impact on the members’ deliberations. To the contrary,
trial defense counsel adeptly responded to trial counsel’s brief comments on
this topic. Although trial defense counsel did not object to trial counsel’s refer-
ence to Appellant’s duties as an MQ-9 sensor operator, trial defense counsel
highlighted the evidence before the panel members. Trial defense counsel ex-
plained to the panel that “there’s no indication that [Appellant] went in high
to work;” and that “he is a sensor operator, but don’t you believe that if there
was evidence out there showing that he had actually showed up and it was
affecting him day to day, we’d have evidence of that? But you don’t have that
in front of you.”
Second, Appellant has not provided any evidence that, but for trial coun-
sel’s comment, the sentence would have been different. As noted in his claim
for sentence severity, Appellant faced a maximum punishment of a reprimand,
forfeiture of two-thirds pay per month for 12 months, the possibility of a fine,
reduction to E-1, confinement for 12 months, and a bad-conduct discharge.
During sentencing argument, trial counsel asked the panel members to sen-
tence Appellant to “at least reduction to E-1, a bad-conduct discharge, and con-
finement for at least eight months.” Ultimately, the panel sentenced Appellant
to forfeiture of $1,256.00 pay per month for three months, reduction to the
grade of E-2, confinement for three months, and a bad-conduct discharge.
Based on the discrepancy between trial counsel’s recommended sentence
and the sentence imposed, we simply cannot find that trial counsel’s argument
impacted the court members’ deliberation. Put another way, Appellant has not
shown a reasonable probability that, but for the error, the outcome of the pro-
ceeding would have been different. This conclusion is further supported by our
individualized consideration of the record and our conclusion that the sentence
imposed was appropriate in this case.
Thus, we do not find that the error resulted in material prejudice to a sub-
stantial right and we do not grant relief.
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United States v. Murphy, No. ACM S32629
E. Timeliness of Appellate Review
This case was docketed with this court on 22 November 2019. Appellant
requested and was granted six extensions of time prior to filing his assign-
ments of error on 18 August 2020. The Government filed its answer on 17 Sep-
tember 2020. Neither at the time of filing his appeal nor during the pendency
of his appeal did Appellant file a demand for speedy appellate review.
The delay in rendering this decision after 22 May 2021 is presumptively
unreasonable. However, we determine there has been no violation of Appel-
lant’s due process right to a speedy appellate review.
“We review de novo claims that an appellant has been denied the due pro-
cess right to a speedy post-trial review and appeal.” United States v. Moreno,
63 M.J. 129, 135 (C.A.A.F. 2006) (citations omitted). In Moreno, the United
States Court of Appeals for the Armed Forces (CAAF) established a presump-
tion of facially unreasonable delay when a Court of Criminal Appeals does not
render a decision within 18 months of docketing. Id. at 142. Where there is
such a delay, we examine the four factors set forth in Barker v. Wingo, 407 U.S.
514, 530 (1972): “(1) the length of the delay; (2) the reasons for the delay; (3)
the appellant’s assertion of his right to a timely review and appeal; and (4)
prejudice [to the appellant].” Moreno, 63 M.J. at 135 (citations omitted). “No
single factor is required for finding a due process violation and the absence of
a given factor will not prevent such a finding.” Id. at 136 (citing Barker, 407
U.S. at 533).
Concerning prejudice, the CAAF identified three types of interests for
prompt appeals: (1) prevention of oppressive incarceration; (2) minimizing anx-
iety and concern; and (3) limitation of the possibility of impairment of the ap-
pellant’s ability to present a defense at a rehearing. Moreno, 63 M.J. at 138–
39 (citations omitted). In this case, we find no oppressive incarceration nor im-
pairment of the defense at a rehearing because Appellant has not prevailed in
his appeal. See id. at 140. As for anxiety and concern, the CAAF has explained
that “the appropriate test for the military justice system is to require an ap-
pellant to show particularized anxiety or concern that is distinguishable from
the normal anxiety experienced by prisoners awaiting an appellate decision.”
Id. Appellant has articulated no such particularized anxiety in this case, and
we discern none.
There are several factors explaining this delay. First, Appellant took ap-
proximately nine months from the docketing of this case to file his assignments
of error. Second, Appellant asserted five errors, the careful consideration of
which has resulted in a 20-page opinion from the court. Third, as described
above, we initially remanded this case but later withdrew that opinion when
we granted the Government’s reconsideration motion. We then continued with
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United States v. Murphy, No. ACM S32629
our Article 66 review. We do not find egregious delay here, especially in light
of the fact much of the initial delay in this case was at Appellant’s behest.
Where, as here, Appellant has not shown prejudice from the delay, there is
no due process violation unless the delay is so egregious as to “adversely affect
the public’s perception of the fairness and integrity of the military justice sys-
tem.” United States v. Toohey, 63 M.J. 353, 362 (C.A.A.F. 2006). We do not find
such egregious delays here. Appellant has neither demanded speedy appellate
review nor asserted that he is entitled to relief for appellate delay. Accordingly,
we do not find the delay so egregious as to adversely affect the perceived fair-
ness and integrity of the military justice system. See id.Recognizing our authority under Article 66(d), UCMJ, we have also consid-
ered whether relief for excessive post-trial delay is appropriate even in the ab-
sence of a due process violation. See United States v. Tardif, 57 M.J. 219, 225
(C.A.A.F. 2002). After considering the factors enumerated in United States v.
Gay, 74 M.J. 736, 744 (A.F. Ct. Crim. App. 2015), aff’d, 75 M.J. 264 (C.A.A.F.
2016), we conclude it is not.
III. CONCLUSION
The findings and sentence as entered are correct in law and fact, and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(d), UCMJ, 10 U.S.C. §§ 859(a), 866(d). Accordingly, the find-
ings and the sentence are AFFIRMED.
FOR THE COURT
CAROL K. JOYCE
Clerk of the Court
20