United States v. Halpin

                         UNITED STATES, Appellee

                                         v.

                    Andrew P. HALPIN, Airman Basic
                       U.S. Air Force, Appellant

                                  No. 12-0418
                          Crim. App. No. S31805

       United States Court of Appeals for the Armed Forces

                         Argued October 24, 2012

                       Decided February 13, 2013

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and RYAN, J., joined. ERDMANN, J., filed a dissenting
opinion, in which EFFRON, S.J., joined.



                                     Counsel


For Appellant:    Captain Luke D. Wilson (argued).


For Appellee: Captain Brian C. Mason (argued); Colonel Don M.
Christensen, Lieutenant Colonel C. Taylor Smith, and Gerald R.
Bruce, Esq. (on brief).


Military Judge:    Joseph S. Kiefer


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Halpin, No. 12-0418/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review to consider three questions surrounding

trial counsel’s sentencing argument:   (1) whether the argument

constituted prosecutorial misconduct; (2) whether the military

judge erred in failing to stop the argument and issue a curative

instruction; and (3) whether the defense counsel rendered

ineffective assistance of counsel by failing to object to the

argument.   We hold that Appellant has not met his burden of

showing that he was prejudiced by trial counsel’s arguments.     We

therefore affirm the decision of the United States Air Force

Court of Criminal Appeals.

                                I.

     In exchange for the convening authority’s agreement to

refer this case to a special court-martial, Appellant pled

guilty to and was convicted of one specification each of failure

to obey a lawful order, wrongful use of Adderall (a Schedule II

controlled substance), adultery, and reckless endangerment, in

violation of Articles 92, 112a, and 134, Uniform Code of

Military Justice (UCMJ), 

10 U.S.C. §§ 892

, 912a, 934 (2006).     A

panel of officer members sentenced Appellant to a bad-conduct

discharge, confinement for ten months, and a reprimand.    The

convening authority approved the sentence and the United States

Air Force Court of Criminal Appeals (CCA) affirmed.   United

States v. Halpin, No. S31805, 

2012 CCA LEXIS 43

, at *18–*19, 2012


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United States v. Halpin, No. 12-0418/AF


WL 377232, at *7 (A.F. Ct. Crim. App. Feb. 1, 2012)

(unpublished).

                                 II.

                                 A.

     At the time of the offenses, Appellant was a nineteen-year-

old airman basic assigned to Davis-Monthan Air Force Base,

Arizona.   He was married to CH, but they were separated.    On

November 25, 2009, Appellant invited CH to the apartment where

he was staying during their separation.   When she arrived,

Appellant had prepared dinner and they enjoyed a romantic

evening together.   Appellant and CH had sexual intercourse, and

then began to argue.   The argument escalated and Appellant told

CH he wanted a divorce.    CH became very upset, retrieved a

bottle of the anti-depressant Lorazepam from her purse, and

proceeded to swallow approximately sixty pills. Appellant

watched CH swallow the pills, and told her “[Y]ou’re not going

to die in my apartment.”   CH responded that Appellant was “going

to watch [her] die.”   Soon after the overdose, CH was unable to

walk and her speech became heavily slurred.   Appellant drove CH

to her home, carried her inside, and put her to bed, placing his

Air Force jacket on top of her before leaving.   Appellant

returned to his apartment and went to bed without calling for

help for CH.   The next morning a friend discovered CH, learned

of the overdose, and called an ambulance.   CH was treated in the


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United States v. Halpin, No. 12-0418/AF


emergency room and subsequently received five to six days of

inpatient mental health treatment.   Based on these events,

Appellant pled guilty to recklessly endangering CH by taking her

to her house and leaving her alone rather than seeking medical

attention after observing her attempted suicide.

     On the day CH was admitted to the hospital, Appellant

engaged in consensual sex with another airman, A1C Hayden.

After learning of CH’s suicide attempt and Appellant’s

relationship with A1C Hayden, Appellant’s commanding officer

issued no contact orders prohibiting Appellant and A1C Hayden

from communicating with one another.   However, Appellant

continued to communicate with, see, and engage in consensual sex

with A1C Hayden.   On these facts, Appellant pled guilty to

adultery and failure to obey a lawful order.

     In his stipulation of fact, Appellant also admitted to

crushing and snorting Adderall, a Schedule II controlled

substance.   CH had a prescription for Adderall, and Appellant

took pills from her prescription without her consent.    At

various times he snorted the Adderall with another airman.    On

these facts, Appellant pled guilty to wrongful use of Adderall.

                                B.

     The granted issues concern trial counsel’s closing

arguments at sentencing.   With regard to the reckless

endangerment charge, trial counsel argued that


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United States v. Halpin, No. 12-0418/AF


     only [Appellant] himself knows why he acted in .
     . . such a callous and wanton manner that night.
     And only he knows whether or not he was actually
     hoping or wanted [CH] to die but one could
     certainly argue that this would have worked out
     pretty well for him if she had passed away. The
     arguments would stop. The impending divorce,
     expense and effort of it would be saved.
     Potentially, he could collect on her SGLI payout.

     Trial counsel also described the scene at CH’s home when

she was discovered the next day by her friend, covered by

Appellant’s Air Force jacket, wearing the wedding rings she

usually kept in her purse, with a pile of pill bottles on the

dresser.   Trial counsel asserted,

          Now, there are no eyewitnesses to show that
     [Appellant] did that but it sure sounds like
     someone is trying to stage a scene, a scene of a
     grieving wife, pining after her estranged
     husband, alone, wearing her wedding ring, wrapped
     in his jacket, taking a whole slew of pills.
     Members, a scene like that would most likely go
     to show that [Appellant] wasn’t involved in that
     event. It would actually be pretty good for him
     if she was found like that. But again, there is
     no evidence to show that he did that.

     With respect to the wrongful use of Adderall charge, trial

counsel asked the panel a series of seven rhetorical questions.

Among these, he asked why Appellant would want to “endanger the

welfare of his wife who needed that drug to treat her

depression?” and “why did he find the need to share that with

another airman . . . ?”   He also queried why Appellant did not

get his own prescription, why he snorted rather than swallowed

the pills, and why he risked his military career.


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United States v. Halpin, No. 12-0418/AF


     Trial counsel also pressed the veracity of Appellant’s

unsworn statement.   In the unsworn statement, Appellant asserted

that many of his supervisors enjoyed working with him.    Trial

counsel responded to the unsworn statement by rhetorically

asking the members, “Does anyone here actually buy that.”    He

then reminded the panel of Appellant’s letters of counseling,

letters of reprimand, and Article 15s.    See 

10 U.S.C. § 815

(2006).

     With regard to possible punishments, trial counsel argued

that Appellant “should be punished by having neither the

privilege of wearing [the Air Force] uniform nor an honorable

service record.”

     Trial defense counsel did not object to any of these

arguments at trial, nor did the military judge take any action

sua sponte.   In his sentencing arguments, trial defense counsel

presented Appellant as a troubled young man who did not know how

to react and made an admittedly bad decision when his wife

attempted to overdose.   He implored the panel to consider

Appellant’s rehabilitative potential and to render a sentence

that would ensure that Appellant still had hope for his future.

                                C.

     Appellant raised the same issues concerning trial counsel’s

sentencing arguments before the CCA that he raises now.    As

Appellant did not object to the sentencing arguments at trial,


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United States v. Halpin, No. 12-0418/AF


the CCA reviewed for plain error and found that trial counsel’s

sentencing arguments were not improper, and thus no

prosecutorial misconduct, error by the military judge, or

ineffective assistance occurred.

                                 III.

     During sentencing argument, “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).      As a zealous advocate

for the government, trial counsel may “argue the evidence of

record, as well as all reasonable inferences fairly derived from

such evidence.”   

Id.

     Because Appellant did not object to trial counsel’s

sentencing arguments at trial, this Court reviews the propriety

of the arguments for plain error.       United States v. Marsh, 

70 M.J. 101, 104

 (C.A.A.F. 2011).    To prevail under a plain error

analysis, Appellant has the burden of showing, inter alia, that

the alleged errors materially prejudiced a substantial right.

See 

id.

 (citing United States v. Erickson, 

65 M.J. 221, 223

(C.A.A.F. 2007)).

     In this case, our judgment does not depend on whether any

of trial counsel’s sentencing arguments were, in fact, improper.

Rather, we conclude that Appellant has not met his burden of

establishing the prejudice prong of plain error analysis.      “In

assessing prejudice under the plain error test where


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United States v. Halpin, No. 12-0418/AF


prosecutorial misconduct has been alleged:   ‘[W]e look at the

cumulative impact of any prosecutorial misconduct on the

accused’s substantial rights and the fairness and integrity of

his trial.’”   Erickson, 

65 M.J. at 224

 (quoting United States v.

Fletcher, 

62 M.J. 175, 184

 (C.A.A.F. 2005)).   In Fletcher, where

the issue was the government’s findings argument, we explained

that the “best approach” to the prejudice determination involves

balancing three factors:   “(1) the severity of the misconduct,

(2) the measures adopted to cure the misconduct, and (3) the

weight of the evidence supporting the conviction.”   

62 M.J. at 184

.   In applying the Fletcher factors in the context of an

allegedly improper sentencing argument, we consider whether

“‘trial counsel’s comments, taken as a whole, were so damaging

that we cannot be confident’ that [the appellant] was sentenced

‘on the basis of the evidence alone.’”    Erickson, 

65 M.J. at 224

(quoting Fletcher, 

62 M.J. at 184

).   In this case, considering

the cumulative impact of any allegedly improper arguments in the

context of the trial as a whole, we find that the third Fletcher

factor weighs so heavily in favor of the Government that we are

confident that Appellant was sentenced on the basis of the

evidence alone.

       With respect to the third Fletcher factor, the weight of

the evidence amply supports the sentence imposed by the panel.

Appellant failed to establish that the Government’s sentencing


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United States v. Halpin, No. 12-0418/AF


argument prejudiced his substantial rights -- that he was not

sentenced based on the evidence alone.    Appellant’s misconduct

could have exposed him to seven years and six months of

confinement.   Trial defense counsel successfully negotiated a

pretrial agreement which limited Appellant’s confinement

exposure to the twelve-month maximum of a special court-martial.

Appellant’s actual sentence was ten months of confinement, a

bad-conduct discharge, and a reprimand.   The uncontroverted

evidence against Appellant, as admitted in his stipulation of

fact, reveals that Appellant watched his wife attempt to commit

suicide, took her to her home, left her there alone, and made no

attempt to seek medical help.   Moreover, Appellant admitted that

on the day his wife was admitted to the hospital for this

suicide attempt, he committed adultery with another airman.

Despite a no-contact order, Appellant continued to commit

adultery with the airman.   He further admitted to stealing and

snorting his wife’s Adderall prescription on multiple occasions.

The only mitigating evidence consisted of unremarkable character

letters from Appellant’s mother, grandmother, and a family

friend, and sentencing testimony by his mother.   Even if each

statement Appellant takes issue with was obvious error,

Appellant failed to establish that the weight of the evidence

did not clearly support the adjudged and approved sentence.




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United States v. Halpin, No. 12-0418/AF

Therefore, Appellant failed to meet his burden of establishing

plain error.

     As Appellant was not prejudiced by the sentencing

arguments, he cannot have been prejudiced by the military

judge’s failure to interrupt the arguments or issue a curative

instruction, or the failure of his trial defense counsel to

object to the arguments.   See Strickland v. Washington, 

466 U.S. 668, 687

 (1984) (requiring that a defendant claiming ineffective

assistance of counsel show that he was prejudiced by counsel’s

deficient performance).

                                IV.

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Halpin, No. 12-0418/AF


     ERDMANN, Judge, with whom EFFRON, Senior Judge, joins

(dissenting):

     As I would find that trial counsel’s improper argument

constituted plain error that was prejudicial to Halpin’s

substantial rights, I respectfully dissent from the majority

opinion.

Background

     At a special court-marital with members, Halpin entered

guilty pleas to all of the offenses with which he was charged.

For purposes of this appeal, Halpin admitted guilt to reckless

endangerment in violation of Article 134, UCMJ, 

10 U.S.C. § 934

(2006).    During sentencing arguments, trial counsel initially

urged the members to sentence Halpin to the special court-

martial maximum of twelve months confinement but later argued

for at least ten months confinement and a bad-conduct discharge.

Defense counsel argued for a period of confinement of between

forty-five days and two months.   The members sentenced Halpin to

a reprimand, ten months confinement, and a bad-conduct

discharge.

Discussion

     During arguments on sentencing, trial counsel suggested

that Halpin wanted his wife to die, however this assertion was

not supported by evidence on the record.   “Trial prosecutorial

misconduct is behavior by the prosecuting attorney that
United States v. Halpin, No. 12-0418/AF


‘oversteps the bounds of that propriety and fairness which

should characterize the conduct of such an officer in the

prosecution of a criminal offense.’”      United States v. Fletcher,

62 M.J. 175, 178

 (C.A.A.F. 2005) (quoting Berger v. United

States, 

295 U.S. 78, 84

 (1935)).       “[T]he [Rules for Courts-

Martial] and our case law provide that it is error for trial

counsel to make arguments that ‘unduly inflame the passions or

prejudices of the court members’.”      United States v. Schroder,

65 M.J. 49, 58

 (C.A.A.F. 2007) (quoting United States v.

Clifton, 

15 M.J. 26, 30

 (C.M.A. 1983); Rule for Courts-Martial

(R.C.M.) 919(b) Discussion).   “An accused is supposed to be

tried and sentenced as an individual on the basis of the

offense(s) charged and the legally and logically relevant

evidence presented.   Thus, trial counsel is prohibited from

injecting into argument irrelevant matters, such as personal

opinions and facts not in evidence.”      

Id.

 (citing Fletcher, 

62 M.J. at 180

; R.C.M. 919(b) Discussion).      “Counsel should limit

their arguments to ‘the evidence of the record, as well as all

reasonable inferences fairly derived from such evidence.’”

United States v. Burton, 

67 M.J. 150, 152

 (C.A.A.F. 2009)

(quoting United States v. Baer, 

53 M.J. 235, 237

 (C.A.A.F.

2000)).

     “When no objection is made during the trial, a counsel’s

arguments are reviewed for plain error.”      

Id.

 (citing Schroder,

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United States v. Halpin, No. 12-0418/AF


65 M.J. at 57-58).   “Plain error occurs when (1) there is error,

(2) the error is plain or obvious, and (2) the error results in

material prejudice . . . .”    Fletcher, 

62 M.J. at 179

.

    a. Error

      During his argument on sentencing, trial counsel recounted

CH’s testimony that she awoke the day after her suicide attempt

wearing Halpin’s jacket, her wedding ring and a promise ring she

had not worn for about a week, as well as her testimony that she

found prescription drug bottles from all over her house arranged

in a line on her dresser.1    Trial counsel set the following scene

for the members:

           When Airman Halpin finally decides to leave that
      night, [CH] emerges from the bedroom one last time.
      She begs him not to go and then she collapses on the
      couch. Airman Halpin’s response is to pick her up,
      carry her back into the bedroom, lay her in the bed
      and put his Air Force jacket on her. That last point
      is interesting. He put his Air Force jacket on her.
      You heard from [CH] that she had kept her ring in her
      purse but somehow that ring got placed on her fingers
      as well. And then there were those pill bottles. The
      pills that she had, prescription medication,
      everything else in the house that she had kept in
      medicine cabinets, that she had kept in kitchen
      cabinets, all of those pills somehow ended up lined up
      in a neat little pile on the dresser. Think about
      that for a second.



1
  On cross-examination CH conceded that she did not remember
receiving a phone call that night or sending text messages and
that it was possible that she put on her rings and lined up the
pill bottles but just did not remember doing so.
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United States v. Halpin, No. 12-0418/AF


          Now, there are no eyewitnesses to show that
     Airman Halpin did that, but it sure sounds like
     someone is trying to stage a scene, a scene of a
     grieving wife, pining after her estranged husband,
     alone, wearing her wedding ring, wrapped in his
     jacket, taking a whole slew of pills. Members, a
     scene like that would most likely go to show that he
     wasn’t involved in that event. It would actually be
     pretty good for him if she was found like that. But
     again, there is no evidence to show he did that.

     . . . Of course, only Airman Halpin himself knows why
     he acted in such a callous and wanton manner that
     night. And only he knows whether or not he was
     actually hoping or wanted [CH] to die but one could
     certainly argue that this would have worked out pretty
     well for him if she had passed away. The arguments
     would stop. The impending divorce, expense and effort
     of it would be saved. Potentially, he could collect
     on her SGLI payout.

The question before this court is whether there is evidence in

the record which supports this argument and if so, whether the

argument is a reasonable inference fairly derived from that

evidence.   See Burton, 

67 M.J. at 152

.

     During the plea inquiry, Halpin admitted all of the

elements of reckless endangerment to the court’s satisfaction.

The offense of reckless endangerment differs from the offense of

attempted murder under Articles 80 and 118(2), UCMJ, in that

attempted murder requires an intent to kill, while reckless

endangerment requires no such intent.2    Trial counsel’s argument,


2
  The elements of murder under Article 118(2), UCMJ, are: (a)
That a certain named or described person is dead; (b) That the
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United States v. Halpin, No. 12-0418/AF


however, strongly implied that Halpin had just such an intent

that his wife die (“And only he knows whether or not he was

actually hoping or wanted [CH] to die but one could certainly

argue that this would have worked out pretty well for him if she

had passed away.”).    In support of this theme, trial counsel

went on to argue that Halpin staged the scene at CH’s apartment

so that he could hide his involvement3 (“[I]t sure sounds like

someone is trying to stage a scene, a scene of a grieving wife,

pining after her estranged husband, alone, wearing her wedding

ring, wrapped in his jacket, taking a whole slew of pills.

Members, a scene like that would most likely go to show that he

wasn’t involved in that event.”).     To further support his

argument that Halpin intended that his wife die, trial counsel

even provided Halpin with several motives (“The arguments would

stop.    The impending divorce, expense and effort of it would be

saved.   Potentially, he could collect on her SGLI payout.”).




death resulted from the act or omission of the accused; (c) That
the killing was unlawful; and (d) That, at the time of the
killing, the accused had the intent to kill or inflict great
bodily harm upon a person. Manual for Courts-Martial, United
States pt. IV, para. 43.b.(2) (2012 ed.). Trial counsel’s
arguments implied that Halpin intended for his wife to die as
the result of his actions.
3
  Beyond the total lack of evidence supporting trial counsel’s
argument that Halpin was attempting to hide his involvement in
the events at CH’s apartment, the implausibility of this
argument is illustrated by the uncontested evidence that when
Halpin returned to his apartment he called two friends and his
mother and informed them of those events.
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United States v. Halpin, No. 12-0418/AF


     There is simply no evidence in the record supporting trial

counsel’s suggestion that Halpin wanted his wife to die; there

is no evidence in the record that he staged the scene in her

bedroom in an attempt to hide his involvement in the situation;

and there is no evidence in the record that his actions grew out

of a desire to avoid divorce proceedings or to collect on CH’s

life insurance.   In fact there is no evidence that CH had life

insurance or that Halpin was the beneficiary.

     Although I do not question for a moment that Halpin’s

actions that night were heinous and fully justified the charge

of reckless endangerment, he deserved to be sentenced based on

the offense he was found guilty of rather than the much more

serious offense trial counsel improperly argued before the

members.   Clifton, 

15 M.J. at 30

.   As there is no evidence in

the record to support trial counsel’s arguments, there can be no

reasonable inference that Halpin tried to stage a scene to hide

his involvement or that he intended for his to wife die so that

he would benefit personally and financially.    Trial counsel’s

argument was improper and constituted error.

  b. Plain or Obvious

     Throughout the Government’s sentencing argument, trial

counsel actually stated that there was no evidence to support

the suggestion that Halpin wanted CH to die.    Trial counsel

peppered his sentencing argument with the following comments:

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United States v. Halpin, No. 12-0418/AF


“[n]ow, there are no eyewitnesses to show that Airman Halpin did

that,” and “again, there is no evidence to show he did that,”

and “only he knows whether or not he was actually hoping or

wanted [CH] to die.”   It is indicative of the plain and obvious

nature of the error in this case that trial counsel repeatedly

told the members that there was no evidence to support his

arguments.   See United States v. Carter, 

236 F.3d 777, 785

 (6th

Cir. 2001) (finding prosecutor’s misstatement of the evidence

“was not only error but also was plain error,” and quoting Davis

v. Zant, 

36 F.3d 1538

, 1548 n.15 (11th Cir. 1994), for the

proposition that “‘[i]t is a fundamental tenet of the law that

attorneys may not make material misstatements of fact in

summation’”).

     As this is an Air Force case, the military judge was on

notice of United States v. Martinez, 

30 M.J. 1194

, 1197 n.*

(A.F.C.M.R. 1990), which stated:

     we know of no civilian authority for the proposition that a
     defendant can be found guilty of one crime yet punished for
     a second crime, or upon a different theory of criminality.
     Even if such practice might be permitted in civilian
     courts, we could not sanction it in a court-martial.

     Just as in that case, once the military judge entered

findings as to one theory of guilt in Halpin’s case, the

prosecution was precluded from advancing a more serious theory

during sentencing.   

Id.

   Trial counsel’s improper argument

constituted plain and obvious error.

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United States v. Halpin, No. 12-0418/AF


  c. Prejudice

     The next question is whether the plain and obvious error

materially prejudiced a substantial right of the accused.          See

Fletcher, 

62 M.J. at 184

.     In order to evaluate prejudice, the

court looks at the cumulative impact of the improper argument on

the accused’s substantial rights and the fairness and integrity

of his trial.   

Id.

   This requires a balancing of three factors

“(1) the severity of the misconduct, (2) the measures adopted to

cure the misconduct, and (3) the weight of the evidence

supporting the conviction.”    

Id.

       The court reviews these

factors to determine whether trial counsel’s comments, “‘taken

as a whole, were so damning that we cannot be confident’ that

[Halpin] was sentenced ‘on the basis of evidence alone.’”

Erickson, 

65 M.J. at 224

 (quoting Fletcher, 

62 M.J. at 184

).

     The majority holds that the third Fletcher factor “weighs

so heavily in favor of the Government” that discussion of the

first two Fletcher factors is unnecessary.        Halpin, __ M.J. at

__ (8).   However, the severity of the misconduct in this case

and the fact that there were no measures to cure the misconduct

cannot be ignored by this court and all three factors must be

balanced.

     In this guilty plea court-martial, trial counsel’s

sentencing argument constituted the entire narrative of the

Government’s case.    Almost all of the argument on the reckless

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United States v. Halpin, No. 12-0418/AF


endangerment charge relied on facts not in evidence and

significantly exaggerated the severity of Halpin’s actions.      The

impropriety of arguing for a sentence based on a crime for which

Halpin was neither charged nor convicted is obvious.    The

potential impact of trial counsel’s improper argument was

severe.

       There were no curative measures taken to overcome trial

counsel’s improper argument.   As in Fletcher, “[c]orrective

instructions at an early point might have dispelled the taint of

the initial remarks.”   

62 M.J. at 185

.   Instead, the military

judge allowed the improper comments without providing a curative

instruction to the members.

       Finally, with respect to the last Fletcher factor, the

weight of evidence established that Halpin was guilty of the

offense of reckless endangerment.     It did not establish that he

was guilty of attempted murder as the trial counsel implied in

his sentencing argument.

       The majority’s assertion that Halpin’s conduct exposed him

to “seven years and six months confinement” but that his trial

defense counsel negotiated a pretrial agreement which limited

Appellant’s confinement exposure to the twelve-month maximum of

a special court-martial misses the point.    Halpin, __ M.J. at __

(9).   In this case the Government referred Halpin to a special

court-martial and it appears that in return Halpin agreed to

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United States v. Halpin, No. 12-0418/AF


plead guilty to the offenses with which he was charged.      The

special court-martial referral and the pretrial agreement

defined the sentencing universe and it should not now be the

basis for a finding that Halpin was not prejudiced.4   The

prejudice inquiry should instead focus on the effect the

improper argument had on the sentence Halpin received within

that sentencing universe.   The members sentenced Halpin to the

same term of confinement and discharge that trial counsel

suggested at the close of his sentencing arguments.    Although we

cannot know what impact trial counsel’s improper argument had on

the members, his argument was persuasive to the extent that the

members handed down the exact sentence which trial counsel

requested.

     In view of the improper argument, I cannot be confident

that Halpin was sentenced on the basis of evidence alone.     I

would therefore find that Halpin was prejudiced by the improper

argument made by trial counsel.    I would reverse the decision of

the CCA, set aside the sentence and remand the case for a new

sentencing hearing.




4
 The pretrial agreement in this case provided that the sentence
was limited by the special court-martial maximum.
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