

   
   
   
   U.S. v. Diffoot



UNITED STATES, Appellee
v.
Robert DIFFOOT, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 99-0570
Crim. App. No. 97-0515
 
United States Court of Appeals for the Armed
Forces
Argued January 13, 2000
Decided September 20, 2000
SULLIVAN, J., delivered the opinion of the
Court, in which GIERKE and EFFRON, JJ., joined. COX, S.J., filed a dissenting
opinion, in which CRAWFORD, C.J., joined.
Counsel
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
 
 


This opinion is subject
to editorial correction before publication.
 
 

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:



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 13th, 14th, or maybe
the 15th of January, he was framed for using marijuana by some
evil surf punks. Ten days later, on the 24th 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
two; 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 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:



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 trial, 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, No. 99-0925, ___ MJ ___ (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 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 (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.
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 (7th
Cir. 1995); United States v. Abello-Silva, 948 F.2d 1168, 1182 (10th
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.

A. Hispanic Ethnicity
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:



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.



In context, trial counsel was describing the relationship
between appellant, Juarez, and Soriano using several terms including the
term "running mate." The words "amigo" and "compadre" are Spanish words
which also can mean running mate, particularly when used in this context.
This is not a situation where "amigo" and "compadre" were used in a perjorative
manner to describe people of Hispanic ancestry, but rather were used to
describe the relationship between co-conspirators. Such use is entirely
legal. It would be an absurd result to permit trial counsel to use English
terms like "running mate" but disallow use of Spanish words with the same
meaning merely because witnesses are of Hispanic descent.
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.

B.Guilt by Association
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:

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 two; yet,
he distanced himself for this misconduct. He wasnt there. Also, by the
way, he didnt use drugs. It was an innocent ingestion. Gentlemen, there
is something called "guilt by association." We clearly have that here.

Since neither Juarez nor Soriano was involved
in the charge related to drug use, the argument appears to be focusing
on appellants surprisingly close association with an assortment of criminal
activity for which he claims innocence. This argument, it seems to me,
is fair commentary on the evidence. Trial defense counsel must have thought
so too, as he interposed no objection and requested neither a mistrial
nor even a curative instruction.

C. Prejudice
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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