                        UNITED STATES, Appellee

                                     v.

                   Esteven E. RODRIGUEZ, Private
               United States Marine Corps, Appellant

                               No. 04-5003
                       Crim. App. No. 200200740


       United States Court of Appeals for the Armed Forces

                         Argued April 27, 2004

                         Decided June 30, 2004

     BAKER, J., delivered the opinion of the Court in which
CRAWFORD, C.J., GIERKE, EFFRON, AND ERDMANN, JJ., joined.


                                 Counsel


For Appellant:      Lieutenant Colin A. Kisor, JAGC, USNR
(argued).


For Appellee: Captain Wilbur Lee, USMC (argued); Colonel
Michael E. Finnie, USMC (on brief).



Military Judges: S. A. Folsom and R. C. Harris



THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rodriguez, No. 04-5003/MC


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a military judge sitting as a

general court-martial.   He was convicted in accordance with

his pleas of conspiracy to commit larceny, false official

statements, wrongfully selling and disposing of military

property, wrongful appropriation, and larceny, in violation

of Articles 81, 107, 108, and 121, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 907, 908, and

921 (2000), respectively.   Appellant’s sentence was

adjudged on October 19, 2000, and included a dishonorable

discharge, forfeiture of all pay and allowances,

confinement for three years and a fine of $2,000.

Appellant’s plea agreement obligated the convening

authority to suspend all confinement over 24 months.   On

June 29, 2001, the convening authority ultimately approved

the sentence as adjudged except for the fine.   He also

suspended all confinement in excess of what Appellant would

serve as of December, 15, 2001.   The Court of Criminal

Appeals affirmed the findings and sentence in an

unpublished opinion.   United States v. Rodriguez, NMCCA

200200740, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26,

2003).

     The Judge Advocate General of the Navy certified the

following issue to this Court:


                              2
United States v. Rodriguez, No. 04-5003/MC


     WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
     APPEALS ERRED WHEN IT FOUND THAT THE PORTION OF
     THE TRIAL COUNSEL’S SENTENCING ARGUMENT COMPARING
     PRIVATE RODRIGUEZ’ ACTIONS TO A “LATIN MOVIE” WAS
     “MERELY A ‘GRATUITOUS’ REFERENCE TO RACE” AS
     OPPOSED TO AN ARGUMENT BASED UPON RACIAL ANIMUS
     AND THEREFORE DID NOT REQUIRE REVERSAL OF THE
     SENTENCE.

     Based on the specific facts of this case, including

the nature of the improper argument and the fact that it

occurred before a judge alone during sentencing, we

conclude Appellant did not suffer material prejudice to a

substantial right as a result of trial counsel’s improper

argument.

                           Background

     According to his brief, “Appellant is of Mexican

descent and is Latino.”   At the time of trial, Appellant

was a 21-year-old private, and married with one child.

During closing argument on sentencing before the military

judge, trial counsel stated: “These are not the actions of

somebody who is trying to steal to give bread so his child

doesn’t starve, sir, some sort of a [L]atin movie here.

These are the actions of somebody who is showing that he is

greedy.”    Trial counsel’s closing statement covers

approximately three and one half pages in the record.    The

comment in question appears half way through the first page

of the statement.   Defense counsel objected to trial



                               3
United States v. Rodriguez, No. 04-5003/MC


counsel’s argument regarding the use of the term “steal”

and on the ground that trial counsel was commenting on

pretrial negotiations.    Defense counsel did not object to

the prosecutor’s reference to “some sort of a [L]atin

movie.”

     The Court of Criminal Appeals (CCA) “discern[ed] no

logical basis for the trial counsel’s ‘[L]atin movie’

comment.”   Rodriguez, NMCCA 200200740, slip op. at 6.     As a

result, the CCA concluded that “the comment was improper

and erroneous.”   Id.    However, the CCA also stated that the

comment “was merely a ‘gratuitous’ reference to race, it

was not an argument based upon racial animus, nor was it

likely to evoke racial animus.”     Id.   The CCA tested for

prejudice and found no plain error for five reasons:      (1)

the comment was “not overly pejorative”; (2) it was a small

part of an argument that exceeded three pages in the

record; (3) Appellant did not object; (4) the adjudged

sentence “does not reflect any animus on the part of the

judge”; and (5) the convening authority significantly

reduced the period of confinement beyond what was required

by the terms of the pretrial agreement.     Id. at 6-7.

                            Discussion

     The certified question asks whether the CCA erred when

it characterized trial counsel’s statement as “merely a


                                4
United States v. Rodriguez, No. 04-5003/MC


‘gratuitous’ reference to race as opposed to an argument

based upon racial animus.”   However, we believe the parties

have framed a different question in their briefs and

arguments: whether or not unwarranted references to race

during a sentencing argument are subject to prejudice

analysis.

     It is improper for trial counsel to seek unduly to

inflame the passions and prejudices of the sentencing

authority.   United States v. Clifton, 15 M.J. 26 (C.M.A.

1983); Rule for Courts-Martial [R.C.M.] 919(b) discussion.

But failure to object to improper argument may constitute

waiver.   R.C.M. 1001(g).   In the absence of an objection,

we review for plain error.   Plain error occurs when there

is (1) error, (2) the error is obvious, and (3) the error

results in material prejudice to a substantial right.

United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F.

1998).

     The Government concedes that the remark “had no clear

relationship to any issue in the case” and that it could be

misinterpreted as an “indirect reference” to race.

Although in its brief the Government assumed arguendo that

there might be error, at oral argument it conceded that

trial counsel’s argument constituted error, whether or not

the statement was “gratuitous” or based on animus.   The


                               5
United States v. Rodriguez, No. 04-5003/MC


thrust of the Government’s argument is that in accordance

with Powell an improper reference to race or ethnicity,

like other improper argument, should be tested for material

prejudice.   In this case, the Government concludes that the

error is not prejudicial because Appellant pleaded guilty

before a court-martial consisting of a judge alone; he

failed to object to the statement; and he received an

appropriate sentence.

     In Appellant’s view, a statement about race is

different from other improper argument.   Where trial

counsel makes improper racial comments the error “need not

be tested for prejudice because of the overwhelming

prejudice that that kind of error causes to the military

system of criminal justice.”   Further, Appellant invites

our attention to the Army Court of Criminal Appeals’

application of United States v. Olano, 507 U.S. 725 (1993):

that “certain errors may ‘affect substantial rights’

without a concomitant showing of prejudice.”   United States

v. Thompson, 37 M.J. 1023, 1027 (A.C.M.R. 1993).   Relying

on the Army court’s holding Appellant asserts that his

“substantial and fundamental right to a trial free of the

improper consideration of race” is such a right.   Id.

Therefore, Appellant urges that we adopt the Thompson

analytic framework and apply a per se prejudice rule.


                               6
United States v. Rodriguez, No. 04-5003/MC


     Appellant’s argument is attractive for the clarity of

its message.   As this Court has made clear, there is no

room at the bar of military justice for racial bias or

appeals to race or ethnicity.       See, e.g., United States v.

Witham, 47 M.J. 297, 303 (C.A.A.F. 1997)(accused does not

have right to discriminate against prospective members

based on race); United States v. Green, 37 M.J. 380, 384

(C.M.A. 1993)(race is an inappropriate factor for

determining a sentence); United States v. Diffoot, 54 M.J.

149, 154 (C.A.A.F. 2000)(Cox, J., dissenting)(“There is no

question that race, ethnicity, or national origin may not

be used to obtain a conviction.”); United States v. Greene,

36 M.J. 274, 282 (C.M.A. 1993)(Wiss, J.,

concurring)(“Racial discrimination is anathema to the

military justice system.”).   We are cognizant that if zero

tolerance means zero tolerance there is a risk that some

may surmise a mixed signal where a court condemns with one

hand but affirms with the other.

     The Supreme Court has emphatically condemned

unwarranted racial argument: “The Constitution prohibits

racially biased prosecutorial arguments.”      McCleskey v.

Kemp, 481 U.S. 279, 310 (1987)(citation omitted).      The

majority of the federal circuits test for prejudice in

cases of improper racial argument.      United States v. Doe,


                                7
United States v. Rodriguez, No. 04-5003/MC


903 F.2d 16, 25 (D.C. Cir. 1990); McFarland v. Smith, 611

F.2d 414, 416-17 (2d Cir. 1979); Miller v. North Carolina,

583 F.2d 701, 706-07 (4th Cir. 1978); Smith v. Farley, 59

F.3d 659, 663-64 (7th Cir. 1995); Race v. Pung, 907 F.2d

83, 85 (8th Cir. 1990); Bains v. Cambra, 204 F.3d 964, 974

(9th Cir. 2000); United States v. Abello-Silva, 948 F.2d

1168, 1182 (10th Cir. 1991); accord Diffoot, 54 M.J. 149.

Cognizant of this norm, Appellant argues that the military

should be less tolerant of racial argument than in civilian

practice and apply a per se rule of prejudice.

     In our view, unwarranted references to race or

ethnicity have no place in either the military or civilian

forum.   The Supreme Court has not suggested otherwise.

However, we see no reason not to adhere to the prevailing

approach.   See generally Military Rule of Evidence 101

(applying rules of evidence consistent with rules of

evidence in federal district courts).   Our holding

acknowledges the importance of a fair trial and the

insidious impact that racial or ethnic bias, or stereotype,

can have on justice.   At the same time, our holding

acknowledges that where, in fact, there is no prejudice to

an accused, we should not forsake society’s other interests

in the timely and efficient administration of justice, the




                              8
United States v. Rodriguez, No. 04-5003/MC


interests of victims, and in the military context, the

potential impact on national security deployment.

     Therefore, we agree with the CCA.   Appellant did not

suffer material prejudice to a substantial right.    Trial

counsel’s statement was before a military judge alone.

Military judges are presumed to know the law and to follow

it absent clear evidence to the contrary.    United States v.

Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)(citation omitted).

Finally, there is no indication in the record that the

statement affected the military judge or impacted

Appellant’s sentence.   Appellant was convicted of

conspiracy to steal over $1,000 worth of military property,

three specifications of wrongfully disposing of military

property, four specifications of wrongful appropriation of

military property, three specifications of stealing

hundreds of dollars worth of military property, and making

false official statements on two occasions.   Appellant’s

maximum exposure for these offenses was, among other

punishments, over 54 years of confinement and a

dishonorable discharge.   As noted earlier, Appellant’s

adjudged sentence included three years of confinement,

total forfeitures, a fine, and a dishonorable discharge.

     We caution, however, that such prejudice

determinations are fact specific.   In a given situation


                              9
United States v. Rodriguez, No. 04-5003/MC


racial or ethnic remarks, including before a military

judge, may deny an accused a fair trial.    Race is

different.   See, e.g., McCleskey, 481 U.S. at 309 (“Because

of the risk that the factor of race may enter the criminal

justice process, we have engaged in ‘unceasing efforts’ to

eradicate racial prejudice from our criminal justice

system.”)(citing Batson v. Kentucky, 476 U.S. 79, 85

(1986)); Smith, 59 F.3d at 665 (“Race occupies a special

place in the modern law of constitutional criminal

procedure.”); United States v. Lawrence, 47 M.J. 572, 575

(N-M. Ct. Crim. App. 1997)(“Absent a logical basis for the

introduction of race as an issue, and strong evidentiary

support for its introduction,” race has no place in

military or civilian justice.).     Therefore, it is the rare

case indeed, involving the most tangential allusion, where

the unwarranted reference to race or ethnicity will not be

obvious error.    Our concern with unwarranted statements

about race and ethnicity are magnified when the trial is

before members.   This is true whether or not it is

motivated by animus, as we cannot ultimately know what

effect, if any, such statements may have on the fact finder

or sentencing authority.




                               10
United States v. Rodriguez, No. 04-5003/MC


                          Decision

     We answer the certified question in the negative.     The

decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




                                11
