For Appellant: Lieutenant Dale O. Harris, JAGC, USNR (argued).

For Appellee: Lieutenant Danette L. Walker, JAGC, USNR (argued); Colonel Kevin M. Sandkuhler, USMC, and Commander Eugene E. Irvin, JAGC, USN (on brief); Lieutenant William C. Minick, JAGC, USNR, and Lieutenant Margaret E. Jolly, JAGC, USNR.

Military Judge: J. F. Blanche
 
 

Judge SULLIVAN delivered the opinion of the Court.

In June and August of 1996, appellant was tried by a general court-martial composed of officer and enlisted members at Camp Pendleton, California. Contrary to his pleas, he was found guilty of using marijuana, conspiracy to commit larceny, and larceny, in violation of Articles 112a, 81, and 121, Uniform Code of Military Justice, 10 USC §§ 912a, 881, and 921, respectively. He was sentenced to a bad-conduct discharge, confinement for 6 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority approved this sentence, except for forfeitures in excess of $583 pay per month from the completion of appellant’s confinement until the execution of his discharge. The Court of Criminal Appeals affirmed the findings and sentence. United States v. Diffoot, No. 97-0515 (N.M.Ct.Crim.App. March 11, 1999).

On July 13, 1999, this Court granted review of the following issue:

Appellant was arraigned on June 17, 1996, at which time trial was set for August 21, 1996. R. at 7. He absented himself without authority and, thus, was not present for the remainder of his court-martial. R. at 11, 37. The charges for which appellant was tried center around an alleged conspiracy between him, Private Juarez, and Private Sorianocarcamo to steal an automobile, their larceny of that vehicle, and appellant's use of marijuana. R. at 562; Charge Sheet. The Government granted immunity to Private Juarez, Private Sorianocarcamo, and a civilian female, Ms. Maria Cervantes, in exchange for their testimony implicating appellant in the conspiracy and larceny offenses. R. at 170, 201.

Appellant's defense counsel put forth evidence raising the defense of alibi on the larceny charge and an innocent ingestion defense for the marijuana charge. R. at 276-88, 338-50, 364-75, 429-38, 456-62, 467, 495; Defense Exhibit I. Both defenses were based on the testimony of Ms. Cynthia Smith and her brother, Fred, both of whom were friends of appellant. Several Marines from appellant's unit also corroborated appellant’s alibi defense. (R. 425, 456, 464) Several other Marines testified to the poor credibility of the Government’s witnesses. R. at 474-75, 478-79, 482-83.

The issue on appeal concerns remarks made by trial counsel during his summation on findings. R. at 505-17. Trial counsel made the following remarks:

Defense counsel did not object to any of these comments, and the military judge did not, sua sponte, give any instructions to the members regarding the above remarks. The appellate court below determined that the above comments made by trial counsel were clearly erroneous but did not materially prejudice appellant’s substantial rights. Article 59(a), UCMJ, 10 USC § 859(a).

The question before this Court is whether the Court of Criminal Appeals was correct in holding that certain errors made by trial counsel in his closing argument did not "materially prejudice the substantial rights of [appellant]." Article 59(a), UCMJ. The lower appellate court noted that defense counsel did not object to trial counsel’s references to the common Hispanic ethnicity of appellant, R. at 492, and his alleged co-conspirators. It also noted that defense counsel did not object when trial counsel invited the members to convict appellant on the basis of his pre-offense association with these Marines, who admitted their own criminal involvement in the charged offenses. 1 Nevertheless, it found these references and argument, although obvious and substantial error, were not plain error, because there was "no reasonable possibility that any of the errors in trial counsel’s argument materially prejudiced the appellant’s due process right to a fair trial by affecting the members’ deliberations over the evidence. Article 59(a), UCMJ." Unpub. op. at 7.

More particularly, the Court of Criminal Appeals initially concluded that trial counsel’s remarks that appellant was the "amigo" or "compadre" of Private Juarez and Private Sorianocarcamo "was clearly an indirect reference to the race of the appellant and the witnesses, which had no logical relationship to any of the issues in this case." Id. at 4. It held, however, that these "racial remarks . . . were neither overtly pejorative in their own right, nor a subtle appeal to the prejudice of the members, when viewed in the context in which they were made. They were two isolated racial remarks buried within a lengthy argument by the trial counsel. It is unlikely that these particular remarks had any effect, much less an unfair impact, upon the members’ deliberations." Id. at 7.

The Court of Criminal Appeals also concluded that trial counsel’s erroneous reference to "guilt by association" with admitted criminals did not materially prejudice appellant. It stated:

Turning to the record in this case, we note that the prosecution’s case for conspiracy and larceny of Lance Corporal Bruno’s automobile rested largely on the testimony of appellant’s two alleged co-conspirators, Private Juarez and Private Sorianocarcamo. Recognizing that these two prosecution witnesses were themselves admitted criminals who were testifying with immunity, trial counsel in his opening argument attempted to justify the Government’s reliance on these witnesses as unfortunate but necessary. He argued:

In other words, he properly asked the members not to disregard these witnesses’ testimony simply because they admitted their own participation in these crimes. See United States v. Rose, 12 F.3d 1414, 1424-26 (7^th Cir. 1994).

Trial counsel, however, was not content to rest his case on the conspiracy and larceny charges simply on the testimony of two admitted criminals and a female companion, or his case on drug use simply on the basis of urinalysis evidence. After presentation of the defense case, he blatantly argued that appellant should be convicted of all these offenses because he was the Hispanic associate of the two Hispanic Marines who admitted committing the larceny crimes. This was a marked shift from his earlier argument, and one which improperly attempted to enhance the prosecution’s case based on the defendant’s race and his criminal associations. See United States v. Doe, 903 F.2d at 24-27; United States v. Dickens, 775 F.2d 1056, 1058 (9^th Cir. 1983). This was done during closing argument, a critical point in the trial (see United States v. Marshall, 173 F.3d 1312, 1317-18 (11^th Cir. 1999)), and in a situation where the evidence of appellant’s guilt was not overwhelming. See United States v. Polasek, 162 F.3d at 886-87. Finally, this was done without any effort being made by trial counsel or the military judge to disavow this improper argument or limit consideration of appellant’s ethnicity and associations to proper purposes. Cf. United States v. Spriggs, 102 F.3d 1245, 1257-58 (D.C. Cir. 1996); United States v. Rose, supra at 1426.

The Court of Criminal Appeals discounted these racial remarks and the guilt-by-association argument because it concluded that trial counsel actually focused his closing argument on the evidence in the case showing specific conduct by appellant. Indeed, trial counsel did heavily rely on the testimony of appellant’s alleged co-conspirators, who were the principal government witnesses against appellant, and who identified him as a member of their conspiracy and as the person who actually stole the car. We note, however, that the defense called two civilian witnesses without criminal involvement in this case to establish the defense of alibi for appellant at the time of the alleged theft, and the defense of innocent ingestion. Accordingly, we disagree with the Court’s conclusion that the prosecution’s evidence in this case was overwhelming and that trial counsel’s comments had no effect on the members’ assessment of guilt. 2 See United States v. Doe, supra at 27-28; United States v. Polasek, supra at 884-85; United States v. Irvin, 87 F.3d 860, 866 (7^th Cir. 1996).

In conclusion, we note that our military justice system established by Congress in accordance with the Constitution does not permit a conviction based on an accused’s race (see United States v. Green, 37 MJ 380, 385 (CMA 1993)), or an accused’s associations. See United States v. Sitton, 39 MJ 307, 310 (CMA 1994). In the words stated long ago by Judge Brosman, permitting convictions on the basis of a theory of guilt by association would establish "a principle alien to American standards of justice." United States v. Jacobs, 1 USCMA 209, 211, 2 CMR 115, 117 (1952); see United States v. Adkins, 5 USCMA 492, 499, 18 CMR 116, 123 (1955). In more recent times, a majority of this Court adopted Judge Wiss’s eloquent statement on racial discrimination in the military justice system (see United States v. Witham, 47 MJ 297, 303 (1997)), "Racial discrimination is anathema to the military justice system. It ought not - and it will not - be tolerated in any form." United States v. Greene, 36 MJ 274, 282 (CMA 1993) (Wiss, J., concurring). Even in the absence of objection by defense counsel, this Court can and will act to remedy such a serious injustice and preserve the integrity of the military justice system.

The decision of the United States Court of Criminal Appeals is reversed, and the findings of guilty and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Navy. A new trial may be ordered.

FOOTNOTES:

1 Despite the language of "waiver" in RCM 919(c), Manual for Courts-Martial, United States (1995 ed.), we have repeatedly held that where there is no defense objection to the prosecution’s argument, we review for plain error. See United States v. Carpenter, 51 MJ 393, 396 (1999); United States v. Sweeney, 48 MJ 117, 121 (1998); cf. United States v. Causey, 37 MJ 308, 312 (CMA 1993) (Sullivan, J., concurring).

2 We agree with the dissent that not every racial reference in a criminal trial requires a new trial. See Smith v. Farley, 59 F.3d 659, 663-64 (7^th Cir. 1995); United States v. Abello-Silva, 948 F.2d 1168, 1182 (10^th Cir. 1991).

COX, Senior Judge, with whom CRAWFORD, Chief Judge, joins (dissenting):

I disagree that the purpose of trial counsel’s closing argument was to urge conviction on the basis of Hispanic ethnicity or guilt by association. Therefore, I dissent.

The question of the effect of improper prosecution argument was addressed by the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637 (1974), and in Darden v. Wainwright, 477 U.S 168 (1986). Applying these cases, the question is whether trial counsel’s argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, supra at 643; Darden, supra at 181. In order to make this determination, we must look at the entire record in this case. Donnelly, supra.

Trial counsel’s argument related to charges against appellant for conspiring with Private Juarez and Private Sorianocarcamo (aka Private Soriano) to steal, and then actually stealing another soldier’s automobile. Since appellant absented himself without authority after his arraignment, and thus was not present for the remainder of his trial, appellant’s trial defense counsel raised on his behalf the affirmative defense of alibi to the larceny charge, i.e., appellant was somewhere else when the actual theft of the automobile took place.

The Government granted immunity to Privates Juarez and Soriano and a civilian female in exchange for their testimony implicating appellant in both the conspiracy and the larceny. During cross-examination of these individuals, trial defense counsel attempted to establish that they were lying about appellant’s participation in the theft, thereby raising by implication the inference that appellant was not part of the conspiracy. Trial defense counsel’s argument’s on opening and closing supported this theory.

Presenting this alibi defense clearly put the question of the extent of appellant’s relationship with Juarez and Soriano squarely at issue. Proof that appellant had little or no prior affiliation with Juarez and Soriano could only serve to decrease, in the minds of the jurors, the likelihood that appellant was involved in the theft or conspiracy and thereby increase the plausibility of appellant’s alibi defense. Trial counsel took great pains to establish at trial that appellant, Juarez, and Soriano were well acquainted, and were in fact "running mates." Hence, appellant’s closing argument reiterated the evidence presented at trial of this relationship.

Because of the alibi defense, as well as the conspiracy charge, there is no question that evidence of the relationship between appellant, Juarez, and Soriano was logically relevant. See Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States (1995 ed.). Hence, the argument itself was legally permissible, so the only question remaining is whether the use of "amigo" and "compadre" with respect to Hispanic co-conspirators was prejudicial.

Prejudice would attach if trial counsel’s argument was made for the purpose of kindling racial or ethnic stereotyping, so that a conviction would be obtained because of appellant's affiliation rather than because the evidence against him was overwhelming. In this case, we need only look at trial counsel’s argument in its entirety in order to determine its intended purpose. The entire argument trial counsel made concerning appellant’s co-conspirators was as follows:

This case is easily distinguishable from United States v. Lawrence, 47 MJ 572 (N.M.Ct.Crim.App. 1997). In Lawrence, the term "three Jamaican brothers" was used in a pejorative manner with no other logical purpose than to cast the testimony of the defense witnesses in an adverse light based upon an implied racial stereotype. It is also distinguishable from to United States v. Doe, 903 F.2d 16 (D.C. Cir. 1990), cited by the majority. Doe directly supports the proposition that the entire proceedings must be examined and the argument viewed in context. See DeChristoforo, supra at 643. In Doe, the prosecutor’s argument included evidence that Jamaicans had taken over the local drug market. The Court of Appeals determined this evidence to be irrelevant and inadmissible because there was no evidence that the Jamaican defendants were connected with any Jamaican drug dealers or that Jamaican drug dealers were involved in the charged drug offenses. 903 F.2d at 27. Further, any other evidence against the accused in Doe for drug offenses was weak. Id. Under those facts, the Doe court found the prosecutor’s argument to be both improper and prejudicial because it invited the jury to convict the defendants based purely upon a stereotype. Id.

There is no question that race, ethnicity, or national origin may not be used to obtain a conviction. However, the mere use of Spanish words in a case where a witness is of Hispanic descent is not a per se denial of due process. Defense counsel did not object to the argument and did not request a curative instruction. Further, trial defense counsel did not raise the matter of the Hispanic background of the witnesses during voir dire. In this context, the use of the words "amigo" and "compadre" did not deprive appellant of a fair trial.

Trial counsel used the words "guilt by association" in his closing argument. However, viewed in context, I would find no error. Trial counsel argued as follows:

This is not a case where there has been a miscarriage of justice. Appellant absented himself from trial after arraignment. Then, in a veritable paroxysm of guilt and remorse, returned to military control, began serving his sentence and, most importantly, admitted guilt to the charged offenses.

In my view, under the facts and circumstances of this case, it would be a true miscarriage of justice to set aside these findings of guilt and the sentence and authorize a retrial.

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