United States v. Rodriguez ( 2004 )

UNITED STATES, Appellee
v.
Esteven E. RODRIGUEZ, Private
United States Marine Corps, Appellant
No. 04-5003
Crim. App. No. 200200740
United States Court of Appeals for the Armed Forces
Argued April 27, 2004
Decided June 30, 2004
BAKER, J., delivered the opinion of the Court in which
CRAWFORD, C.J., GIERKE, EFFRON, AND ERDMANN, JJ., joined.
Counsel
For Appellant: Lieutenant Colin A. Kisor, JAGC, USNR
(argued).
For Appellee: Captain Wilbur Lee, USMC (argued); Colonel
Michael E. Finnie, USMC (on brief).
Military Judges: S. A. Folsom and R. C. Harris
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Rodriguez, No. 04-5003/MC
Judge BAKER delivered the opinion of the Court.
Appellant was tried by a military judge sitting as a
general court-martial. He was convicted in accordance with
his pleas of conspiracy to commit larceny, false official
statements, wrongfully selling and disposing of military
property, wrongful appropriation, and larceny, in violation
of Articles 81, 107, 108, and 121, Uniform Code of Military
Justice [hereinafter UCMJ], 10 U.S.C. §§ 881, 907, 908, and
921 (2000), respectively. Appellant’s sentence was
adjudged on October 19, 2000, and included a dishonorable
discharge, forfeiture of all pay and allowances,
confinement for three years and a fine of $2,000.
Appellant’s plea agreement obligated the convening
authority to suspend all confinement over 24 months. On
June 29, 2001, the convening authority ultimately approved
the sentence as adjudged except for the fine. He also
suspended all confinement in excess of what Appellant would
serve as of December, 15, 2001. The Court of Criminal
Appeals affirmed the findings and sentence in an
unpublished opinion. United States v. Rodriguez, NMCCA
200200740, slip op. at 8 (N-M. Ct. Crim. App. Nov. 26,
2003).
The Judge Advocate General of the Navy certified the
following issue to this Court:
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WHETHER THE NAVY-MARINE CORPS COURT OF CRIMINAL
APPEALS ERRED WHEN IT FOUND THAT THE PORTION OF
THE TRIAL COUNSEL’S SENTENCING ARGUMENT COMPARING
PRIVATE RODRIGUEZ’ ACTIONS TO A “LATIN MOVIE” WAS
“MERELY A ‘GRATUITOUS’ REFERENCE TO RACE” AS
OPPOSED TO AN ARGUMENT BASED UPON RACIAL ANIMUS
AND THEREFORE DID NOT REQUIRE REVERSAL OF THE
SENTENCE.
Based on the specific facts of this case, including
the nature of the improper argument and the fact that it
occurred before a judge alone during sentencing, we
conclude Appellant did not suffer material prejudice to a
substantial right as a result of trial counsel’s improper
argument.
Background
According to his brief, “Appellant is of Mexican
descent and is Latino.” At the time of trial, Appellant
was a 21-year-old private, and married with one child.
During closing argument on sentencing before the military
judge, trial counsel stated: “These are not the actions of
somebody who is trying to steal to give bread so his child
doesn’t starve, sir, some sort of a [L]atin movie here.
These are the actions of somebody who is showing that he is
greedy.” Trial counsel’s closing statement covers
approximately three and one half pages in the record. The
comment in question appears half way through the first page
of the statement. Defense counsel objected to trial
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counsel’s argument regarding the use of the term “steal”
and on the ground that trial counsel was commenting on
pretrial negotiations. Defense counsel did not object to
the prosecutor’s reference to “some sort of a [L]atin
movie.”
The Court of Criminal Appeals (CCA) “discern[ed] no
logical basis for the trial counsel’s ‘[L]atin movie’
comment.” Rodriguez, NMCCA 200200740, slip op. at 6. As a
result, the CCA concluded that “the comment was improper
and erroneous.” Id. However, the CCA also stated that the
comment “was merely a ‘gratuitous’ reference to race, it
was not an argument based upon racial animus, nor was it
likely to evoke racial animus.” Id. The CCA tested for
prejudice and found no plain error for five reasons: (1)
the comment was “not overly pejorative”; (2) it was a small
part of an argument that exceeded three pages in the
record; (3) Appellant did not object; (4) the adjudged
sentence “does not reflect any animus on the part of the
judge”; and (5) the convening authority significantly
reduced the period of confinement beyond what was required
by the terms of the pretrial agreement. Id. at 6-7.
Discussion
The certified question asks whether the CCA erred when
it characterized trial counsel’s statement as “merely a
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‘gratuitous’ reference to race as opposed to an argument
based upon racial animus.” However, we believe the parties
have framed a different question in their briefs and
arguments: whether or not unwarranted references to race
during a sentencing argument are subject to prejudice
analysis.
It is improper for trial counsel to seek unduly to
inflame the passions and prejudices of the sentencing
authority. United States v. Clifton, 15 M.J. 26 (C.M.A.
1983); Rule for Courts-Martial [R.C.M.] 919(b) discussion.
But failure to object to improper argument may constitute
waiver. R.C.M. 1001(g). In the absence of an objection,
we review for plain error. Plain error occurs when there
is (1) error, (2) the error is obvious, and (3) the error
results in material prejudice to a substantial right.
United States v. Powell, 49 M.J. 460, 463-65 (C.A.A.F.
1998).
The Government concedes that the remark “had no clear
relationship to any issue in the case” and that it could be
misinterpreted as an “indirect reference” to race.
Although in its brief the Government assumed arguendo that
there might be error, at oral argument it conceded that
trial counsel’s argument constituted error, whether or not
the statement was “gratuitous” or based on animus. The
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thrust of the Government’s argument is that in accordance
with Powell an improper reference to race or ethnicity,
like other improper argument, should be tested for material
prejudice. In this case, the Government concludes that the
error is not prejudicial because Appellant pleaded guilty
before a court-martial consisting of a judge alone; he
failed to object to the statement; and he received an
appropriate sentence.
In Appellant’s view, a statement about race is
different from other improper argument. Where trial
counsel makes improper racial comments the error “need not
be tested for prejudice because of the overwhelming
prejudice that that kind of error causes to the military
system of criminal justice.” Further, Appellant invites
our attention to the Army Court of Criminal Appeals’
application of United States v. Olano, 507 U.S. 725 (1993):
that “certain errors may ‘affect substantial rights’
without a concomitant showing of prejudice.” United States
v. Thompson, 37 M.J. 1023, 1027 (A.C.M.R. 1993). Relying
on the Army court’s holding Appellant asserts that his
“substantial and fundamental right to a trial free of the
improper consideration of race” is such a right. Id.Therefore, Appellant urges that we adopt the Thompson
analytic framework and apply a per se prejudice rule.
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Appellant’s argument is attractive for the clarity of
its message. As this Court has made clear, there is no
room at the bar of military justice for racial bias or
appeals to race or ethnicity. See, e.g., United States v.
Witham, 47 M.J. 297, 303 (C.A.A.F. 1997)(accused does not
have right to discriminate against prospective members
based on race); United States v. Green, 37 M.J. 380, 384
(C.M.A. 1993)(race is an inappropriate factor for
determining a sentence); United States v. Diffoot, 54 M.J.
149, 154 (C.A.A.F. 2000)(Cox, J., dissenting)(“There is no
question that race, ethnicity, or national origin may not
be used to obtain a conviction.”); United States v. Greene,
36 M.J. 274, 282 (C.M.A. 1993)(Wiss, J.,
concurring)(“Racial discrimination is anathema to the
military justice system.”). We are cognizant that if zero
tolerance means zero tolerance there is a risk that some
may surmise a mixed signal where a court condemns with one
hand but affirms with the other.
The Supreme Court has emphatically condemned
unwarranted racial argument: “The Constitution prohibits
racially biased prosecutorial arguments.” McCleskey v.
Kemp, 481 U.S. 279, 310 (1987)(citation omitted). The
majority of the federal circuits test for prejudice in
cases of improper racial argument. United States v. Doe,
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United States v. Rodriguez, No. 04-5003/MC
903 F.2d 16, 25 (D.C. Cir. 1990); McFarland v. Smith, 611
F.2d 414, 416-17 (2d Cir. 1979); Miller v. North Carolina,
583 F.2d 701, 706-07 (4th Cir. 1978); Smith v. Farley, 59
F.3d 659, 663-64 (7th Cir. 1995); Race v. Pung, 907 F.2d
83, 85 (8th Cir. 1990); Bains v. Cambra, 204 F.3d 964, 974
(9th Cir. 2000); United States v. Abello-Silva, 948 F.2d
1168, 1182 (10th Cir. 1991); accord Diffoot, 54 M.J. 149.
Cognizant of this norm, Appellant argues that the military
should be less tolerant of racial argument than in civilian
practice and apply a per se rule of prejudice.
In our view, unwarranted references to race or
ethnicity have no place in either the military or civilian
forum. The Supreme Court has not suggested otherwise.
However, we see no reason not to adhere to the prevailing
approach. See generally Military Rule of Evidence 101
(applying rules of evidence consistent with rules of
evidence in federal district courts). Our holding
acknowledges the importance of a fair trial and the
insidious impact that racial or ethnic bias, or stereotype,
can have on justice. At the same time, our holding
acknowledges that where, in fact, there is no prejudice to
an accused, we should not forsake society’s other interests
in the timely and efficient administration of justice, the
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interests of victims, and in the military context, the
potential impact on national security deployment.
Therefore, we agree with the CCA. Appellant did not
suffer material prejudice to a substantial right. Trial
counsel’s statement was before a military judge alone.
Military judges are presumed to know the law and to follow
it absent clear evidence to the contrary. United States v.
Mason, 45 M.J. 483, 484 (C.A.A.F. 1997)(citation omitted).
Finally, there is no indication in the record that the
statement affected the military judge or impacted
Appellant’s sentence. Appellant was convicted of
conspiracy to steal over $1,000 worth of military property,
three specifications of wrongfully disposing of military
property, four specifications of wrongful appropriation of
military property, three specifications of stealing
hundreds of dollars worth of military property, and making
false official statements on two occasions. Appellant’s
maximum exposure for these offenses was, among other
punishments, over 54 years of confinement and a
dishonorable discharge. As noted earlier, Appellant’s
adjudged sentence included three years of confinement,
total forfeitures, a fine, and a dishonorable discharge.
We caution, however, that such prejudice
determinations are fact specific. In a given situation
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racial or ethnic remarks, including before a military
judge, may deny an accused a fair trial. Race is
different. See, e.g., McCleskey, 481 U.S. at 309 (“Because
of the risk that the factor of race may enter the criminal
justice process, we have engaged in ‘unceasing efforts’ to
eradicate racial prejudice from our criminal justice
system.”)(citing Batson v. Kentucky, 476 U.S. 79, 85
(1986)); Smith, 59 F.3d at 665 (“Race occupies a special
place in the modern law of constitutional criminal
procedure.”); United States v. Lawrence, 47 M.J. 572, 575
(N-M. Ct. Crim. App. 1997)(“Absent a logical basis for the
introduction of race as an issue, and strong evidentiary
support for its introduction,” race has no place in
military or civilian justice.). Therefore, it is the rare
case indeed, involving the most tangential allusion, where
the unwarranted reference to race or ethnicity will not be
obvious error. Our concern with unwarranted statements
about race and ethnicity are magnified when the trial is
before members. This is true whether or not it is
motivated by animus, as we cannot ultimately know what
effect, if any, such statements may have on the fact finder
or sentencing authority.
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Decision
We answer the certified question in the negative. The
decision of the United States Navy-Marine Corps Court of
Criminal Appeals is affirmed.
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