United States v. BarrazaMartinez , 2003 CAAF LEXIS 299 ( 2003 )

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affirmed the findings and sentence in an unpublished opinion.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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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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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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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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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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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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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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