                        UNITED STATES, Appellee

                                     v.

               Enrique BARRAZAMARTINEZ, Lance Corporal
                     U.S. Marine Corps, Appellant


                               No. 02-0865


                        Crim. App. No. 200101575



       United States Court of Appeals for the Armed Forces

                        Argued February 5, 2003

                         Decided March 26, 2003

    GIERKE, J., delivered the judgment of the Court, in which
  CRAWFORD, C.J., joined. EFFRON, J., filed a separate opinion
concurring in the result. BAKER, J., filed a separate dissenting
              opinion, in which ERDMANN, J., joined.

                                  Counsel
For Appellant: Lieutenant Michael J. Navarre, JAGC, USNR
   (argued); Lieutenant Glenn Gerding, JAGC, USNR (on brief).

For Appellee: Lieutenant Lori McCurdy, JAGC, USNR (argued);
   Colonel R. M. Favors (on brief).

Military Judge:    S. A. Folsom




  This opinion is subject to editorial correction before final publication.
United States v. BarrazaMartinez, No. 02-0865/MC


      Judge GIERKE delivered the judgment of the Court.

      A military judge sitting as a general court-martial

convicted Appellant, pursuant to his pleas, of conspiracy to

wrongfully import marijuana, and wrongfully importing marijuana,

in violation of Articles 81 and 112a, Uniform Code of Military

Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 912a (2002),

respectively.     A panel of officers sentenced Appellant to a

dishonorable discharge, confinement for 11 years, forfeiture of

all pay and allowances, and reduction to the lowest enlisted

grade.   In accordance with a pretrial agreement, the convening

authority suspended all confinement in excess of 78 months but

otherwise approved the sentence.          The Court of Criminal Appeals

affirmed the findings and sentence in an unpublished opinion.

This Court granted review of the following issues:

                                      I

      WHETHER TRIAL COUNSEL COMMITTED PLAIN ERROR WHEN HE REFERRED
      TO AMERICA’S “WAR ON DRUGS” AND CALLED APPELLANT A “TRAITOR”
      DURING HIS PRESENTENCING ARGUMENT BEFORE MEMBERS.

                                     II

      WHETHER APPELLANT’S SENTENCE TO ELEVEN YEARS’ CONFINEMENT
      AND A DISHONORABLE DISCHARGE IS HIGHLY DISPARATE COMPARED TO
      HIS ALLEGED CO-CONSPIRATOR’S SENTENCE OF FOUR YEARS’
      CONFINEMENT AND A BAD-CONDUCT DISCHARGE.

For the reasons set out below, we affirm.

                          I. Factual Background
      At the time of the offenses, Appellant was stationed at

Marine Corps Air Station Miramar, California.         In early February

2000, Appellant’s cousin introduced him to a civilian named Beto.

Beto offered Appellant $1,500 to go to Mexico and bring back a




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United States v. BarrazaMartinez, No. 02-0865/MC


pickup truck loaded with marijuana.         Appellant agreed, seeing an

opportunity to earn some money for his parents and sister.

      On February 11, 2000, Beto notified Appellant that the

truckload of marijuana was ready.         Beto told Appellant that it

would be better if Appellant had someone with him on the trip

from Mexico to the United States.         Appellant asked Lance Corporal

(LCpl) Martinezgarcia to accompany him.            According to Appellant,

LCpl Martinezgarcia did not know the purpose of the trip.

      On the same day, Appellant, Beto and LCpl Martinezgarcia

drove to Tijuana, Mexico, where Beto delivered a Volkswagen

pickup truck to Appellant.       Appellant knew that marijuana was

hidden in the truck, but he did not know its quantity or exact

location in the truck.      When Appellant crossed the border,

customs agents detained him and LCpl Martinezgarcia, and they

discovered 99 pounds∗ of marijuana concealed in the truck’s right

rear fender panel.

      During his sentencing argument, the trial counsel argued:

      We in America are engaged in a war on drugs. You have heard
      from the President. You heard from the agents, and customs,
      that borders are being flooded. . . .
      The drug cartels in Mexico are bringing drugs in this
      country and polluting our population. They’re making money
      off our weak individuals. They do it because people like
      [Appellant] carry the drugs across the border.

      Now as warriors you know you can always fight the battle and
      fight the enemy on the battlefield. But true tacticians
      know you win the war by knocking out the logistics.


∗
  Although Appellant was charged with importing 99 pounds of
marijuana and admitted importing 99 pounds during the plea
inquiry, a U.S. Customs Service special agent testified that the
99 pounds included the tape and wrapping, and that the actual
weight of the marijuana was approximately 85 pounds.



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Trial counsel referred to the maximum confinement authorized for

Appellant’s offenses (30 years), and he argued as follows:

      The reason thirty years is authorized is because it’s worth
      a lot. It’s worth a lot of punishment because it is the
      type of activity we need to deter. Not just one individual
      but anyone who would think about doing it, tarnishing the
      Marine Corps’ image of bringing drugs across this border.
      Almost a traitor to our country in that he’s bringing in
      drugs when we are trying, as a nation, to stop them from
      coming in.

Trial counsel concluded his argument by asking the court members

to impose confinement for 15 years.         Appellant’s defense counsel

did not object to any of the trial counsel’s sentencing argument.

      LCpl Martinezgarcia, Appellant’s co-conspirator, was charged

with conspiring with the Appellant, importing and possessing

marijuana, and making a false official statement about his

involvement with Appellant, in violation of Articles 81 and 112a,

and Article 107, UCMJ, 10 U.S.C. § 907 (2002).        His case

initially was referred to trial jointly with Appellant’s, but the

cases were later severed.       LCpl Martinezgarcia pleaded not

guilty, but he was convicted and sentenced to a bad-conduct

discharge, confinement for four years, total forfeitures, and

reduction to the lowest enlisted grade.

             II. Discussion: Improper Argument (Issue I)
                     A.   Reference to War on Drugs

      Appellant asserts that it was plain error for the trial

counsel to introduce the Commmander-in-Chief’s war on drugs into

the deliberation room.      The Government argues that it was not

plain error to refer to the war on drugs, that America’s war on

drugs is common knowledge, and that mentioning it does not bring

command sentencing policy into the deliberation room.



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      In light of the defense counsel’s failure to object, we

review the trial counsel’s argument for plain error.             See United

States v. Powell, 49 M.J. 460 (C.A.A.F. 1998); United States v.
Kropf, 39 M.J. 107, 108-09 (C.M.A. 1994).             Appellant has the

burden of persuading this Court that there was plain error.

Powell, 49 M.J. at 464.

      Regarding sentencing arguments, Rule for Courts-Martial

1001(g) provides:

            Trial counsel may not in argument purport to speak for
            the convening authority or any higher authority, or
            refer to the views of such authorities or any policy
            directive relative to punishment or to any punishment
            or quantum of punishment greater than that court-
            martial may adjudge.

Reference to departmental or command policies can create the

appearance of unlawful command influence.             See United States v.
Grady, 15 M.J. 275, 276 (C.M.A. 1983).             Reference to such

policies “is an area in which trial counsel are well advised to

tread lightly.”     Kropf, 39 M.J. at 109.          On the other hand, it is

proper for a trial counsel to comment on “contemporary history or

matters of common knowledge within the community.”             Id. at 108.
      With respect to trial counsel’s reference to the war on

drugs in this case, we agree with the Government that it is a

matter of common knowledge.       Furthermore, the trial counsel made

no reference to either the Commander-in-Chief’s or any other

commander’s expectations regarding Appellant’s punishment.             Thus,

with respect to this aspect of the trial counsel’s argument, we

hold that there was no plain error.




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                   B. Appellant as “Almost a Traitor”

       A trial counsel is charged with being a zealous advocate for

the Government.     United States v. Nelson, 1 M.J. 235, 238 (C.M.A.
1975).    During sentencing arguments, “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).            Trial counsel may not,

however, “seek unduly to inflame the passions or prejudices of

the court members.”      United States v. Clifton, 15 M.J. 26, 30
(C.M.A. 1983).

       Trial counsel’s reference to Appellant as “almost a traitor”

gives us pause.     The term “traitor” is particularly odious,

particularly in the military community.            On the other hand, trial

counsel used the term only once, and he qualified it with the

word “almost.”     The term is defined as: “1. One who betrays

another’s trust or is false to an obligation or duty; 2. One who

commits treason.”     MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1252

(10th ed. 1993).    Treason is defined as “the betrayal of a trust;

treachery.”    Id. at 1257-58.      It was fair comment on the evidence
for trial counsel to argue that Appellant had betrayed the trust
placed in him as a member of the United States Marine Corps.

Defense counsel did not consider the argument sufficiently

offensive to warrant an objection.         See Nelson, 1 M.J. at 238

n.6.    While we do not condone the trial counsel’s use of this

potentially inflammatory term, we hold that Appellant has not

carried his burden of persuading this Court that the sentencing

argument characterizing him as “almost a traitor” was plain

error.




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United States v. BarrazaMartinez, No. 02-0865/MC


      III. Discussion: Highly Disparate Sentences (Issue II)

      In United States v. Lacy, 50 M.J. 286, 288 (C.A.A.F. 1999),

this Court set out a three-part test for resolving claims of

disparate treatment.      When reviewing a decision of a Court of

Criminal Appeals, we limit our review to three questions of law:

            (1) whether the cases are “closely related”; . . . (2)
            whether the cases resulted in ‘highly disparate’
            sentences; and (3) if the requested relief is not
            granted [by the court below] in a closely related case
            involving a highly disparate sentence, whether there is
            a rational basis for the differences between or among
            the cases.

Our standard of review is “whether a Court of Criminal Appeals

abused its discretion or caused a miscarriage of justice in

carrying out its highly discretionary ‘sentence appropriateness’

role.”   United States v. Durant, 55 M.J. 258, 260 (C.A.A.F.
2001).

      Appellant asserts that the court below erred by not granting

him sentence relief in light of the significantly less severe

sentence of his co-conspirator, LCpl Martinezgarcia.      The

Government does not dispute that the two cases are closely

related and that the sentences are highly disparate.      The
Government argues, however, that the court below did not abuse

its discretion by affirming Appellant’s sentence because there

was a rational basis for the disparity between Appellant’s

sentence and that of his co-conspirator.

      The court below concluded that the two cases are closely

related and that the sentences are highly disparate, but it

concluded that the Government had carried its burden of showing a

rational basis for Appellant’s more severe sentence.      The lower

court reasoned as follows:


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United States v. BarrazaMartinez, No. 02-0865/MC


            Appellant was the one who entered into a criminal
            conspiracy, agreed to drive the truck containing
            approximately 99 pounds of concealed marijuana for
            resale, and then drove it from Mexico into the United
            States in order to earn $1500. It was he who chose to
            involve Martinezgarcia in this criminal enterprise
            because the mastermind of the operation, a drug
            wholesaler known only as “Beto,” suggested that the
            undertaking would likely be more successful if someone
            else was in the pickup truck as they crossed into the
            United States . . . . He admitted that, but for his
            invitation to take part, Martinezgarcia would never
            have been in the truck . . . . Indeed, according to
            Appellant, Martinezgarcia was unaware of the fact that
            there was any marijuana in the truck . . . . We
            conclude, therefore, that there are rational and cogent
            reasons for the apparent disparity in the sentences
            imposed on Appellant and his co-actor.

      We agree with the analysis of the court below.   Accordingly,

we hold that the court below did not abuse its discretion or

cause a miscarriage of justice by affirming Appellant’s sentence.

                               IV. Decision
      The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed.




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United States v. BarrazaMartinez, No. 02-0865/MC



     Effron, Judge (concurring in the result):

     Appellant was represented in this case by both civilian and

military defense counsel.   Appellant’s counsel did not object to

trial counsel’s closing argument.   Absent such an objection, in

a case that does not involve an allegation of ineffective

assistance of counsel, the burden is on Appellant to demonstrate

plain error under United States v. Powell, 49 M.J. 460 (C.A.A.F.

1998).   Under Powell, Appellant must demonstrate that: (1) there

was an error; (2) the error was plain or obvious; and (3) the

error materially prejudiced a substantial right.   Id. at 463-65.

Both the lead opinion and the dissenting opinion set forth

reasonable interpretations of trial counsel’s closing argument.

In that context, Appellant has not met his burden of

demonstrating under the second prong of Powell that any error

was so obvious that the military judge should have intervened in

the absence of objection by defense counsel.
United States v. BarrazaMartinez, No. 02-0865/MC


      BAKER, Judge, with whom ERDMANN, Judge, joins

(dissenting):

      Although I agree with the lead opinion’s legal

framework, I respectfully dissent from its application of

that framework to these facts.

      The lead opinion concludes that Appellant has not

carried his burden of persuading this court that trial

counsel’s sentencing argument was plain error.       In reaching

this conclusion the lead opinion relies on three arguments.

First, the war on drugs is common knowledge.       Second, trial

counsel only referred to Appellant as a traitor once, and

when he did so the term was qualified by the word “almost.”

Third, “treason” is defined, inter alia, as “the betrayal

of a trust.”    _ M.J. (6)     Thus, trial counsel’s reference

to Appellant as “almost a traitor” was “fair comment on the

evidence” because “Appellant had betrayed the trust placed

in him as a member of the United States Marine Corps.”       Id.

In essence, the lead opinion argues, trial counsel used the

word traitor in its colloquial and descriptive sense, and

not in its constitutional sense to describe someone who

commits treason, like Benedict Arnold.

      I disagree.    I think the better view is that trial

counsel was appealing to the members’ sense of duty and

patriotism as Marines by suggesting that Appellant’s
United States v. BarrazaMartinez, No. 02-0865/MC


offenses were the equivalent of treason as used in the

constitutional sense.      To a panel of members sworn to

uphold and defend the Constitution, such suggestion, in my

view, is inflammatory and runs undue risk of drawing the

members unfairly away from the evidence at hand.

      This is clear from the context of trial counsel’s full

argument:

      Now as warriors you know you can always fight the
      battle and fight the enemy on the battlefield. But
      true tacticians know you win the war by knocking out
      the logistics. . . . Now Marines stand for an awful
      lot of things. We stand for what is right in this
      country. We defend our borders. We have honor and
      courage. We don’t stand for perfect drug courier and
      we shouldn’t be the type of people that drug couriers
      should recruit. . . . The reason thirty years is
      authorized is because it’s worth a lot. . . . [The
      accused is] [a]lmost a traitor to our country in that
      he’s bringing in drugs when we are trying, as a
      nation, to stop them from coming in. We employ
      thousands of dollars, millions of dollars in doing
      that, employing the military to stop the drugs. . . .
      [H]e tarnished our image. He committed the serious
      offense against this nation.

      First, trial counsel’s reference to Appellant as

“almost a traitor” comes in the context of war.         The “war

on drugs” is indeed a matter of common knowledge and a

colloquialism for efforts to address the importation and

use of drugs in the United States.         However, counsel did

not limit his argument to the policy metaphor.         Rather, he

appealed to the members as warriors to do their duty in




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United States v. BarrazaMartinez, No. 02-0865/MC


this war.    That duty, I infer in the context of a

sentencing argument, was to levy harsh punishment.

      Second, in his reference to Appellant as “almost a

traitor,” trial counsel stated, “[Appellant] committed the

serious offense against this nation.”          This is the language

of treason as understood in the Constitution as a crime

against the nation.      (“Treason against the United States

shall consist only in levying War against them, or in

adhering to their Enemies, giving them Aid and Comfort.”

US Const. art. III, § 3 (emphasis added)).          Nor is this

reference a momentary metaphor, it is a central theme in

trial counsel’s closing argument covering three pages in

the record.

      Finally, if one adopts the lead opinion’s view that

trial counsel’s argument was fair comment on the evidence

because Appellant betrayed a trust, then it is fair comment

in any case in which a member of the armed forces commits a

common crime.     Any accused within the military justice

system would become a traitor for acts of “treason” against

“trust placed in [him/her] as a member of the United States

[Armed Forces].”     _ M.J. (6).       This does not strike me as

an analytic formula suited to upholding a fair and

impartial system of military justice.          In a military

courtroom, the labeling of an accused as a “traitor” is


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United States v. BarrazaMartinez, No. 02-0865/MC


particularly inflammatory.       Therefore, until this Court

overrules United States v. Baer, 53 M.J. 235 (C.A.A.F.

2000), and United States v. Clifton, 15 M.J. 26 (C.M.A.

1983), I would consider such language in the context of a

drug trial outside the bounds of fair comment.

      Appellant betrayed the trust of the Marine Corps and

the public the Marine Corps serves; but Appellant was not

on trial for treason against the nation in the war on

drugs.   Rather, he was on trial for importing drugs into

the United States in the context of a United States effort

to stem the tide of drugs referred to as a “war on drugs.”

We should be confident he was sentenced for the crime for

which he was charged and convicted.




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