                       UNITED STATES, Appellee

                                    v.

                       Bryant K. MARSH, Private
                         U.S. Army, Appellant

                              No. 11-0123

                       Crim. App. No. 20080382

       United States Court of Appeals for the Armed Forces

                         Argued March 7, 2011

                         Decided June 2, 2011

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined. RYAN, J., filed a separate
opinion concurring in part and dissenting in part, in which
STUCKY, J., joined.

                                 Counsel


For Appellant: Captain A. Jason Nef (argued); Colonel Mark
Tellitocci and Lieutenant Colonel Imogene M. Jamison (on brief);
Captain Michael E. Korte.

For Appellee: Major Sara M. Root (argued); Colonel Michael E.
Mulligan and Major Amber J. Williams (on brief); Captain Chad M.
Fisher.

Military Judge:   Patrick J. Parrish


       This opinion is subject to revision before final publication.
United States v. Marsh, No. 11-0123/AR

      Judge ERDMANN delivered the opinion of the court.

      Private Bryant K. Marsh was acquitted of rape but convicted

of making a false official statement at a general court-martial

with members.   He was sentenced to a bad-conduct discharge,

forfeiture of $1,347.00 pay for one month, and a reduction to E-

1.1   The convening authority approved the sentence and the United

States Army Court of Criminal Appeals summarily affirmed the

findings and sentence.    United States v. Marsh, No. ARMY

20080382, slip op. at 1 (A. Ct. Crim. App. Oct. 7, 2010).

      “Merely urging the court members to consider an unsworn

statement for what it is falls within the boundary of fair

prosecutorial comment.”   United States v. Breese, 11 M.J. 17, 24

(C.M.A. 1981) (citations omitted).    In addition, “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)).      We

granted review to consider whether the trial counsel’s closing

argument improperly invited the panel to draw an adverse

inference from Marsh’s decision to give an unsworn statement,




1
  We note that this forfeiture exceeds the maximum forfeiture
allowed when the sentence does not include confinement (two-
thirds of a month’s pay based on the adjudged reduction to the
pay grade of E-1). United States v. Warner, 25 M.J. 64, 67
(C.M.A. 1987); Rule for Courts-Martial (R.C.M.) 1003(b)(2).

                                  2
United States v. Marsh, No. 11-0123/AR

and also to determine whether the trial counsel’s argument

unduly inflamed the court members by implying that Marsh would

endanger pilots’ lives if he were allowed to remain in the Army.2

While we conclude that the trial counsel’s reference to Marsh’s

unsworn statement did not constitute error, portions of the

trial counsel’s closing argument were unduly inflammatory.      We

therefore reverse the decision of the Army Court of Criminal

Appeals as to the sentence, set aside the sentence, and remand

the case for a sentencing rehearing.

                              BACKGROUND

       Private Bryant Marsh repaired helicopters for the 82nd

Combat Aviation Brigade of the 82nd Airborne Division at Fort

Bragg, North Carolina.    One evening Marsh went to Private CG’s

barracks room and asked her to go to a club with him and some

fellow soldiers.    En route to the club the group stopped and

purchased alcohol and soda.    CG poured out all but three inches


2
    We granted review of the following issues:

       I.    Whether it was plain error for trial counsel to argue
             that the panel should draw adverse inferences from
             Appellant’s failure to testify under oath during
             presentencing because Appellant would not answer her
             questions or theirs.

       II.   Whether trial counsel sought to inflame the passions
             of the 82nd Airborne panel by implying that
             Appellant’s false official statement during a rape
             investigation puts pilots’ lives in danger.

United States v. Marsh, 69 M.J. 455 (C.A.A.F. 2010) (order
granting review).

                                   3
United States v. Marsh, No. 11-0123/AR

of Coke from a twenty-ounce bottle and filled the rest with

Hennessy Cognac.   CG drank the contents of the bottle before

they entered the club.   CG remembered having several more drinks

in the club, but remembers nothing more of the evening.

     After CG became intoxicated at the club, two of the

soldiers in the group tried to take her back to her barracks

room but were unable to enter the post as she did not have her

identification card.    They then took CG to the hotel room of one

of the soldiers where she passed out on the bed.   Later that

night Marsh arrived at the hotel room and took CG back to her

barracks room, where they engaged in sexual intercourse.    CG

testified that she remembered nothing between being in the club

and waking up the next morning to find her supervisor and medics

in her barracks room.    CG later went to the hospital where she

completed a restricted rape report.3   She testified that she did

not want to file an unrestricted report “[b]ecause I wasn’t sure

what happened to me and I didn’t want to just blame somebody for

something.”

     Almost two months later, CG listened to a cell phone

recording of Marsh talking to another soldier.   In the call


3
  A restricted report allows a sexual assault victim to
confidentially report the details of the assault, and receive
treatment and counseling, without initiating an official
investigation. Dep’t of the Army, Reg. 600-20, Personnel--
General, Army Command Policy para. 8-4(c) (Mar. 18, 2008). In
contrast, an unrestricted report initiates an official
investigation. Id. at 8-4(d).

                                  4
United States v. Marsh, No. 11-0123/AR

Marsh referenced a list of men that CG had slept with and

included his name on that list.   CG testified that she was

shocked when she heard that as she was unaware she had slept

with him.   She then contacted the Fort Bragg Criminal

Investigation Division (CID) and filed an unrestricted rape

report.

     Special Agent (SA) Ellis interviewed Marsh the same day

that CG filed her unrestricted report.   Marsh waived his rights

and agreed to speak with SA Ellis.    Marsh initially told SA

Ellis that he and CG had consensual sexual intercourse in her

room before they left her barracks room for the club.    Later in

the interview Marsh admitted that the intercourse occurred after

they returned to her barracks room from the hotel, but again

maintained that it was consensual.    Marsh apologized to the

agent for the deception and said that he thought CID wouldn’t

want to hear that he had sexual intercourse with someone who had

been drinking.

                            DISCUSSION

I.   Trial counsel’s reference to Marsh’s unsworn statement

     Marsh gave an unsworn statement during the presentencing

proceeding.   Subsequently, the president of the panel asked the

military judge what the difference was between a sworn and

unsworn statement.   The military judge said that he would give

the panel an instruction on how to treat an unsworn statement,



                                  5
United States v. Marsh, No. 11-0123/AR

but did give the following brief description at that time:    “It

basically means an unsworn statement, which a Soldier has the

right to do, he [sic] may not be cross-examined upon an unsworn

statement.”   The president asked if the court members could ask

questions of Marsh and the military judge responded that they

could not and reiterated that after hearing arguments on

sentencing, the court members would receive further

instructions.

     During sentencing argument, trial counsel commented on

Marsh’s unsworn statement:

          Now the judge will instruct you on the difference
     between a sworn and an unsworn statement. The
     [G]overnment would ask you to give less weight to this
     unsworn statement -- the accused’s unsworn statement.
     The accused was not subject to cross-examination, he
     did not answer questions from the [G]overnment nor
     from you.

Defense counsel did not object.   During sentencing instructions,

the military judge instructed the court members on how they were

to consider Marsh’s unsworn statement:

          The court will not draw any adverse inference
     from the fact the accused has elected to make a
     statement which is not under oath. An unsworn
     statement is an authorized means for an accused to
     bring information to the attention of the court and it
     must be given appropriate consideration. The accused
     cannot be cross-examined by the prosecution or
     interrogated by the court members or myself upon an
     unsworn statement, but the prosecution may offer
     evidence to rebut any statement of fact contained in
     such an unsworn statement. The weight and
     significance to be attached to an unsworn statement
     rests within the sound discretion of each court
     member. You may consider the statement is not under


                                  6
United States v. Marsh, No. 11-0123/AR

        oath, its inherent probability, or improbability,
        whether it’s supported or contradicted by other
        evidence in the case, as well as any other matter that
        may have a bearing on its credibility. In weighing an
        unsworn statement, you are expected to use your common
        sense and your knowledge of human nature and the ways
        of the world.

        Marsh argues that it was plain error for the trial counsel

to invite the court members to draw a negative inference from

Marsh’s decision to make an unsworn statement.    He argues that

the trial counsel knew that the president of the panel was

interested in asking questions and used this to improperly

invite the panel to penalize Marsh for exercising his right.

        The Government responds that the trial counsel’s comment

remained within the bounds of permissible argument.    The

Government goes on to argue that, in any event, Marsh suffered

no prejudice because the trial counsel’s comments were

consistent with the military judge’s instructions and the

evidence supporting the sentence was strong.

        Improper argument is a question of law that we review de

novo.    United States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011).

Since the defense counsel did not object to trial counsel’s

sentencing argument, we review Marsh’s claim for plain error.

United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007).       To

prevail, Marsh must prove that:    “(1) there was an error; (2) it

was plain or obvious; and (3) the error materially prejudiced a




                                   7
United States v. Marsh, No. 11-0123/AR

substantial right.”    Id. (citation and quotation remarks

omitted).

     In Breese, after the accused made an unsworn statement,

trial counsel argued:   “‘[a]nd when you consider the accused’s

statement, I ask you to consider something different about the

accused’s statement.    Everybody else who sat in that box today

took an oath to tell the truth.’”     11 M.J. at 23 (alteration in

original).   The defense counsel objected to this statement but

the objection was overruled.   Id.    The military judge in Breese

provided the members with essentially the same instruction that

the military judge provided in this case.    See id.   Before this

court, Breese argued that the trial counsel’s argument implied

that he was lying since his statement was not under oath.    Id.

Noting that the military judge’s instructions provided the

members with correct guidance, we held:

     The truth of the matter is that these statements are
     not made under oath and, thus, the “unsworn statement
     is not evidence.” Merely urging the court members to
     consider an unsworn statement for what it is falls
     within the boundary of fair prosecutorial comment.
     Here the challenged statement seems only to have been
     directed towards that end and did not constitute an
     invitation for the court members to draw an adverse
     inference against the appellant.

Id. at 24 (citations omitted).

      The military judge in this case correctly instructed the

panel that Marsh could not be cross-examined by the Government

or interrogated by the court members.    He further instructed



                                  8
United States v. Marsh, No. 11-0123/AR

them that they could consider that Marsh did not make his

statement under oath and could also consider any other matter

that may have a bearing on the statement’s credibility.    The

trial counsel’s statement did nothing more than ask the court

members to consider Marsh’s unsworn statement in light of the

fact that he was not subject to cross-examination and therefore

urged them to give it less weight.    In fact, Marsh’s statement

was not subject to cross-examination and the members could

legitimately consider that fact in assessing its credibility.

This aspect of trial counsel’s argument fell within the boundary

of fair prosecutorial comment.   See id.    As there was no error,

the remaining prongs of the plain error inquiry need not be

considered.

II.    Trial counsel’s argument that Marsh could not be trusted
       with the lives of pilots

       During the sentencing phase of the court-martial, Marsh’s

squad leader, Sergeant Pat C. Nieto, testified on his behalf.

Sergeant Nieto testified that he rated Marsh in the top ten

percent of the soldiers he supervised.     He further testified

that Marsh was “invaluable to me in training new soldiers coming

in.”   The fact that Marsh had been convicted of a false official

statement would not cause Sergeant Nieto any concern in serving

and deploying with him.   On cross-examination, Sergeant Nieto




                                  9
United States v. Marsh, No. 11-0123/AR

was asked if Marsh was currently working in his MOS4 as a

helicopter repairman.   Sergeant Nieto responded that he was not.

On redirect, Sergeant Nieto clarified that Marsh was not

actually “turning wrenches” but was supervising new soldiers.

The military judge then asked why Marsh was not working in his

MOS and Sergeant Nieto explained:

      Gentlemen, the reason Private Marsh is not
      serving in his MOS in Aviation is any time a
      Soldier is in trouble for anything, we usually
      restrict him from working on the aircraft as to
      not cause a problem with the aircraft. As we
      hold the pilots’ lives in our hands everyday, we
      don’t want his ideas and stuff going on in his
      head or his concerns to translate over to the
      job either inadvertently or purposely. So in
      this case, the commander the [sic] first
      sergeant restricted him from working on the
      aircraft until -- pending the results of his
      trial. And that is the reason he is not working
      on the aircraft at this moment.

      Sergeant Nieto further clarified the situation during

recross-examination:

      Q: You said that you don’t -- he can’t touch
      aircraft because you don’t want ideas in his
      head inadvertently or purposely transferring to
      other Soldiers or to --

      A: No, sir, if I may clarify. When working on
      the aircraft, you hold peoples’ lives in your
      hand [sic] on a daily basis. We don’t want
      Private Marsh thinking about his case or
      something going on with his case that would
      interfere with his thought process while working
      on an aircraft so that he wouldn’t accidently do

4
  Military occupational specialty. Dep’t of the Army, Reg. 611-
1, Personnel Selection and Classification, Military Occupational
Classification Structure Development and Implementation para. 6-
4 (Sept. 30, 1997).

                                10
United States v. Marsh, No. 11-0123/AR

      something to the aircraft or forget to put a
      bolt on the right way or something to that
      nature that would cause a problem with the
      aircraft.

In his sentencing argument, the trial counsel argued that the

court members could not trust Marsh with the lives of pilots

because he lied to SA Ellis:

      Because a good Soldier doesn’t lie. The
      [G]overnment would argue that this Soldier
      should absolutely not remain in our Army that
      values integrity and honor, not lies and not
      deceit. You can’t trust the accused. The
      accused is an aircraft mechanic, someone you
      trust to work on your airplanes, to tighten that
      bolt, to make sure that those aircrafts are
      worthy to fly, to do rescue missions, to serve
      this Army. Can you trust someone who lies with
      the lives of those pilots?

Emphasis added.

     Marsh argues that the trial counsel unduly inflamed the

passions of the court members on two grounds:   his conviction

for false official statement bears no relevance to his duty or

ability to repair aircraft; and, the trial counsel invited the

court members to put themselves in an aircraft repaired by Marsh

and then instilled fear that the aircraft would crash.

     The Government responds that the trial counsel simply

rebutted Marsh’s sentencing witnesses’ testimony that he could

be trusted and commented on his character for future service.

The Government argues that Marsh’s truthfulness is highly

relevant to whether rehabilitation could be successful or

whether Marsh can complete his duty with good order and



                               11
United States v. Marsh, No. 11-0123/AR

discipline.    Rather than inflame court members, the Government

asserts that the trial counsel was simply referring to Sergeant

Nieto’s statement “that aircraft mechanics are entrusted with

pilots’ lives.”

     As in the first issue, improper argument is a question of

law that we review de novo.   Pope, 69 M.J. at 334.     Since the

defense counsel did not object to the trial counsel’s comments,

we again review for plain error.      Erickson, 65 M.J. at 223.

Marsh must prove the existence of error, that the error was

plain or obvious, and that the error resulted in material

prejudice to a substantial right.     Id.

     “[T]rial counsel is at liberty to strike hard, but not

foul, blows.”   Schroder, 65 M.J. at 58 (citation and quotation

marks omitted).   As a result, “it is error for trial counsel to

make arguments that ‘unduly . . . inflame the passions or

prejudices of the court members.’”     Id. (quoting Clifton, 15

M.J. at 30).    The trial counsel also must not inject matters

that are not relevant into argument.     Id. (citing United States

v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005); R.C.M. 919(b)

Discussion).    Nor can the trial counsel ask court members to

place themselves in the shoes of the victim or a near relative.

United States v. Baer, 53 M.J. 235, 237-38 (C.A.A.F. 2000).

     While this court has not previously examined whether a

prosecutor can properly ask court members to place themselves in



                                 12
United States v. Marsh, No. 11-0123/AR

the shoes of potential future victims, the United States Court

of Appeals for the Sixth Circuit has addressed this issue.    In

Hodge v. Hurley, 426 F.3d 368, 384 (6th Cir. 2005), that court

held that a suggestion that the jury put itself in the place of

someone who may run into the defendant on the street is

impermissible argument.   This is because trial counsel must not

“fan the flames of the jurors’ fears by predicting that if they

do not convict . . . some . . . calamity will consume their

community.”   Bedford v. Collins, 567 F.3d 225, 234 (6th Cir.

2009) (citation omitted).

     Trial counsel personalized his argument to the panel

members by referring to Marsh as working on “your” aircraft and

questioning whether Marsh could be trusted with the lives of the

unit’s pilots.   We believe that this portion of trial counsel’s

argument constituted error and that it was plain and obvious.

We can find no rational nexus between the fact that Marsh lied

to SA Ellis during the investigation and the assertion that he

could not be trusted with the lives of pilots in the future.

The Government’s argument that the comment was merely reflecting

the testimony of Marsh’s squad leader is not supported by the

record.   It is clear from Sergeant Nieto’s testimony that Marsh

was placed in a supervisory role only for the duration of his

court-martial because he might be “thinking about his case or




                                13
United States v. Marsh, No. 11-0123/AR

something going on with his case that would interfere with his

thought process.”

     It cannot be reasonably inferred from this record that

those concerns would extend beyond the conclusion of the trial.

In fact, just the opposite is true.   Sergeant Nieto and Marsh’s

First Sergeant testified that they would serve and deploy with

Marsh again.   Consequently, the trial counsel’s assertion that

the court members could no longer trust Marsh to perform his

assigned duties is not supported by the testimony of Marsh’s

immediate supervisors -- the only testimony on this subject in

the record.    Trial counsel’s invitation to the court members to

imagine themselves as potential future victims only served to

inflame a fear as to what might happen if the panel did not

adjudge a discharge.   See Hodge, 426 F.3d at 384; Bedford, 567

F.3d at 234.

     Our final analysis concerns whether this error prejudiced

Marsh.   Here we balance the severity of the improper argument,

any measures by the military judge to cure the improper

argument, and the evidence supporting the sentence to determine

whether the “‘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).




                                 14
United States v. Marsh, No. 11-0123/AR

     As we discussed earlier, trial counsel’s argument that

Marsh could not be trusted to work on helicopters in the future

because of his conviction for making a false official statement

lacks both a rational nexus and factual support in the record.

The more serious aspect of trial counsel’s argument was his

invitation to the members that they place themselves in the

shoes of future victims of Marsh’s alleged inability to perform

his duties and to imply that the lives of the unit’s pilots

would be at risk.   There is nothing in the record that supports

this assertion and it clearly was unduly inflammatory.     Although

the military judge gave the standard instruction before findings

arguments that counsels’ arguments are not to be viewed as

evidence, he provided no specific curative instruction in

response to trial counsel’s sentencing argument.5

     In looking at the weight of evidence supporting the

sentence, we note that the Government did not present a

significant case in aggravation.      In fact, the Government only

introduced Marsh’s Enlisted Record Brief (ERB), which contained

no derogatory information, and rested their sentencing case

without calling any witnesses.   Marsh, on the other hand, called

three character witnesses and made an unsworn statement.     His

first character witness was First Sergeant Roque Quichocho, who


5
  Generally, potential harm from improper comments can be cured
through a proper curative instruction. See United States v.
Ashby, 68 M.J. 108, 123 (C.A.A.F. 2009).

                                 15
United States v. Marsh, No. 11-0123/AR

testified that Marsh had worked for him as a crew chief both at

Fort Bragg and in Iraq.   The First Sergeant testified that Marsh

was intelligent, had a great work ethic, and that he could rely

on him to complete sergeant level tasks without supervision.      He

testified that Marsh was “an all-around pretty good [s]oldier”

and he would have no qualms in serving or deploying with him

again.   The next character witness was Marsh’s squad leader

Sergeant Nieto, who testified that Marsh ranked in the top ten

percent of his troops and that he would serve and deploy with

him again.   His final character witness was Marsh’s father who

testified as to Marsh’s upbringing, his work ethic, and the

family’s pride in Marsh’s service.

     The Government argues that there was no prejudice as the

maximum sentence for this offense is a dishonorable discharge

and five years of confinement and Marsh was only sentenced to a

bad-conduct discharge, forfeiture of $1,347.00 pay for one

month, and reduction to E-1.   However, given the maximum

authorized sentence and the sentence adjudged, it is apparent

that the panel was somewhat receptive to the defense sentencing

argument.    As a result, it is not clear that Marsh’s sentence

was unaffected by the trial counsel’s improper argument.    Taking

into consideration the record as a whole, including the relative

weight of the parties’ respective sentencing cases and trial




                                 16
United States v. Marsh, No. 11-0123/AR

counsel’s improper argument, we cannot be confident that Marsh

was sentenced on the basis of the evidence alone.

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed as to findings, but is reversed as to the

sentence.   The sentence is set aside and the record is returned

to the Judge Advocate General of the Army.   A sentencing

rehearing is authorized.




                                17
United States v. Marsh, No. 11-0123/AR


     RYAN, Judge, with whom STUCKY, Judge, joins

(concurring in part and dissenting in part):

     I agree with the Court that trial counsel’s comment on

Appellant’s unsworn statement was proper.    I respectfully

dissent from the judgment because, even assuming error,

trial counsel’s statement that Appellant could not be

trusted with the lives of pilots was not shown by Appellant

to be “plain,” “clear,” or “obvious” error.    United States

v. Olano, 507 U.S. 725, 734 (1993) (citations and quotation

marks omitted).1    Moreover, even if the error was plain,

Appellant has not shown prejudice.

     “Error is ‘plain’ when it is ‘obvious’ or ‘clear under

current law.’”     United States v. Harcrow, 66 M.J. 154, 162

(C.A.A.F. 2008) (Stucky, J., with whom Effron, C.J.,


1
  Rule for Courts-Martial (R.C.M.) 1001(g) provides that
“[f]ailure to object to improper argument before the
military judge begins to instruct the members on sentencing
shall constitute waiver of the objection.” (Emphasis
added.) The text of this rule forecloses appellate review
altogether when the accused fails to object -- a conclusion
bolstered by comparison to other provisions that, unlike
R.C.M. 1001(g), treat failure to object as waiver “in the
absence of plain error.” See, e.g., R.C.M. 920(f);
1005(f); 1106(f)(6). Nonetheless, our precedents hold that
in the absence of objection we review a claim of improper
prosecutorial presentencing argument for plain error. See,
e.g., United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F.
2007); United States v. Paxton, 64 M.J. 484, 487-88
(C.A.A.F. 2007). And while treating failure to object to
improper presentencing argument as waiver rather than
forfeiture appears compelled by R.C.M. 1001(g), no one has
requested that we revisit case law to the contrary.
United States v. Marsh, No. 11-0123/AR


joined, concurring in the result) (quoting Olano, 507 U.S.

at 734).    Assuming arguendo that trial counsel’s statement

that Appellant could not be trusted with the lives of

pilots was improper, it was not so “obvious” an error as to

constitute plain error.

     First, it is not at all clear that trial counsel

sought to place members “in the shoes of potential future

victims.”   United States v. Marsh, __ M.J. __, __ (12-13)

(C.A.A.F. 2011).    While the argument can be made that trial

counsel “personalized his argument to the panel members by

referring to Marsh as working on ‘your’ aircraft and

questioning whether Marsh could be trusted with the lives

of the unit’s pilots,” id., it is neither plain nor obvious

that trial counsel’s use of the word “your” was meant to

refer specifically to the members (rather than the Army as

a whole), especially since trial counsel immediately

reverted to talking about the endangered future pilots in

the third person:   “Can you trust someone who lies with the

lives of those pilots?”    (Emphasis added.)

     Second, even if that was the trial counsel’s

objective, the Court concedes that it “has not previously

examined whether a prosecutor can properly ask court

members to place themselves in the shoes of potential

future victims.”    Marsh, __ M.J. at __ (12-13).   While one


                               2
United States v. Marsh, No. 11-0123/AR


might expect the majority in this case to answer that

question “no” (since that is the premise for error), plain

error review requires this Court to look to “‘current

law.’”    See Harcrow, 66 M.J. at 162 (Stucky, J., with whom

Effron, C.J., joined, concurring in the result) (emphasis

added) (quoting Olano, 507 U.S. at 734).    Acknowledging

that we have not addressed the issue compels the conclusion

that any error was not plain under the precedent of this

Court.    See United States v. Weintraub, 273 F.3d 139, 152

(2d Cir. 2001) (finding no plain error where “[n]o binding

precedent . . . at the time of trial or appeal” established

error).   And under the precedent from the relevant CCA, the

argument at issue appears to have been permissible.    United

States v. Williams, 23 M.J. 776, 779 (A.C.M.R. 1987)

(drawing a distinction between asking members to place

themselves in the shoes of actual victims and in the place

of potential future victims).

     And while plain error may not “automatically” be

ineffective assistance of counsel, see United States v.

Bono, 26 M.J. 240, 243 n.2 (C.M.A. 1988), Appellant

conceded at oral argument that his failure to raise an

ineffective assistance of counsel claim “is certainly

something for this Court to consider in deciding whether

the error was plain and obvious.”   Considering that the


                                3
United States v. Marsh, No. 11-0123/AR


prosecutorial comments at issue are a far cry from the sort

of comments we have previously found to be plainly

inflammatory and improper, it is understandable why defense

counsel failed to object.   See, e.g., Erickson, 65 M.J. at

223-24 (testing trial counsel’s comparison of the appellant

to Adolf Hitler, Saddam Hussein, and Osama bin Laden for

prejudice); United States v. Clifton, 15 M.J. 26, 30

(C.M.A. 1983) (holding that trial counsel’s “conjugation of

adultery with heroin” was inflammatory); United States v.

Lewis, 7 M.J. 958, 959-60 (A.F.C.M.R. 1979) (holding that

it was error to insinuate that the accused would use drugs

on the job when the accused had only been convicted of

selling drugs).   In other words, while we do not disagree

that the law prohibits arguments that “‘unduly . . .

inflame the passions or prejudices of the court members,’”

Marsh, __ M.J. at __ (12) (quoting United States v.

Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)), it was not plain

or obvious that the prosecutorial comments at issue did any

such thing.

     With regard to prejudice, the essential question is

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

so damaging that [this Court] cannot be confident that the

members convicted [and sentenced] the appellant on the

basis of the evidence alone.’”    Schroder, 65 M.J. at 58


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United States v. Marsh, No. 11-0123/AR


(quoting United States v. Fletcher, 62 M.J. 175, 184

(C.A.A.F. 2005)).   In this case, trial counsel’s comments

were made in furtherance of the Government’s theme that a

liar has no place in the military, which values integrity,

honor, and trust.   The theme was a valid one, and trial

counsel’s alleged misconduct was minor.      Indeed, it was so

minor that the members only sentenced Appellant to a bad-

conduct discharge, partial forfeitures, and reduction to

the lowest enlisted grade.   Considering that they could

have sentenced him to a dishonorable discharge, five years

of confinement, reduction to the lowest enlisted grade, and

forfeitures of all pay and allowances, Article 58a(a),

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

858a(a) (2006); Manual for Courts-Martial, United States

pt. IV, para. 31.e. (2008 ed.), it is difficult for me to

conclude that the members were in fact inflamed or that

Appellant suffered prejudice.       See United States v. Young,

470 U.S. 1, 15 (1985) (noting that plain error doctrine is

meant to correct “only ‘particularly egregious errors’”

(quoting United States v. Frady, 456 U.S. 152, 163

(1982))).

     I would affirm the decision of the United States Army

Court of Criminal Appeals.




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