United States v. Diffoot

54 M.J. 149, 2000 CAAF LEXIS 1003, 2000 WL 1363975

• Court: Court of Appeals for the Armed Forces
• Decided: September 20, 2000
• Docket: 99-0570/MC
• Status: Published

Opinions

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, 1999 WL 179613 (N.M.Ct.Crim.App. March 11, 1999).

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

WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS ERRED BY HOLDING THAT A “SERIES OF ERRORS” DURING THE TRIAL COUNSEL’S CLOSING ARGUMENT ON THE MERITS, INCLUDING REFERENCES TO APPELLANT’S RACE AND “GUILT BY ASSOCIATION,” DID NOT AMOUNT TO PLAIN ERROR.

We hold that trial counsel’s closing argument referring to appellant’s alleged co-conspirators’ Hispanic ethnicity and admitted criminality, and urging conviction based on the theory of guilt by association, prejudicially violated appellant’s due process right to a fundamentally fair trial. See United States v. Doe, 903 F.2d 16 (D.C.Cir.1990); United States v. Polasek, 162 F.3d 878 (5th Cir. 1998).

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:

Gentlemen, how many times can lightning strike one person; not only in the course of a lifetime, but over the course of ten days, gentlemen. Fantastic coincidence, fantastic tragedy befell Lance Corporal Diffoot. On the ISth, lfth, or maybe the 15th of January, he ivas framed for using marijuana by some evil surf punks. Ten days later, on the 2fth of January, he was framed by the evil Juarez, who is an evil guy; framed by the evil Juarez, Soriano, and Maria Cervantes for stealing a car. Now, these are separate, wholly unrelated criminals. [Evil surf punks and evil fellow Marines and friend.] They have nothing to do with each other. Yet they pick the hapless, innocent Lance Corporal Diffoot as their victim. Credibility, gentlemen, that is what this is all about. That is an incredible coincidence.

* * *

Now, let’s turn to the government witnesses. Gentlemen, I told you it would be ugly. These are lousy Marines. These are criminal Marines. They’re — Juarez and Soriano, you heard, they’re a Platoon Commander’s worst nightmare incarnated. They come to life right there. But who is their amigo, gentlemen? Who is their compadre? You heard it from everybody. Lance Corporal Diffoot, the three of them. All three of them, running mates.

Now, earlier in my opening I told you or I proffered to you, who do criminals associate with? Other criminals. Gentlemen, Lance Corporal Diffoot was intimately tied up with the other tivo; yet he distanced himself for this misconduct. He wasn’t there. Also, by the way, he didn’t use drugs. It was innocent ingestion. Gentlemen, there is something called “guilt by association.” We clearly have that here.

R. at 506-07 (emphasis added).

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, 1999 WL 179613, 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 preoffense 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:

While the trial counsel did use the term “guilt by association,” his argument actually focused on the evidence of the appellant’s own criminal misconduct in the conspiracy and larceny of the stolen vehicle. We, again, find it unlikely that the use of this term alone had any effect upon the members’ assessment of the evidence.

Id. We disagree with the Court of Criminal Appeals’ prejudice analysis and conclude that these comments by trial counsel, viewed together and in the context of the entire record of tidal, did materially prejudice appellant’s substantial rights. See United States v. Grandy, 11 MJ 270, 275 (CMA 1981) (holding that prejudice from improper trial counsel argument must be assessed in light of entire trial context); see generally United States v. Clark, 53 MJ 280 (2000) (concluding upon review of the entire record that the error did not materially prejudice the substantial rights of appellant); see also United States v. Kho, 54 MJ 63 (2000).

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:

Now, the Government would love to present a parade of witnesses, a parade of stellar, poster Marines to substantiate these charges. Unfortunately, that is not the nature of criminal activity. As a general proposition, there are two axioms that apply to criminals and criminal activities. First, criminal Marines that are planning a theft, obviously they are not going to seek or solicit assistance from the Marine of the Quarter. Second, when they do commit criminal activities, they are either going to do it in private, away from prying eyes, away from detection; or if they do solicit assistance, it is going to be from their peers, their friends.

Who are these people? Fellow criminals. That is who is going to help them. So you have a choice. Either they are going to go and look for members of their own ilk, fellow criminals, or they are going to do it in private so they don’t get caught. That is what this is all about. Not getting caught. That is the way this whole thing unfolded and that is the way it unraveled.

R. at 100 (emphasis added).

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 (7th 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 (9th 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 (11th 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 tidal 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 (7th 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.

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 (7th Cir.1995); United States v. Abello-Silva, 948 F.2d 1168, 1182 (10th Cir.1991).