United States v. Palang ( 2017 )

U NITED S TATES N AVY –M ARINE C ORPS
C OURT OF C RIMINAL A PPEALS
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No. 201700094
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UNITED STATES OF AMERICA
Appellee
v.
ANTONIO P. PALANG
Lance Corporal (E-3), U.S. Marine Corps
Appellant
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Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge: Lieutenant Colonel Forrest W. Hoover, USMC.
Convening Authority: Commanding Officer, 2d Battalion, 10th
Marine Regiment, 2d Marine Division, Camp Lejeune, N C
Staff Judge Advocate’s Recommendation: Lieutenant Colonel
Winston G. McMillan, USMC.
For Appellant: Lieutenant Colonel Richard A. Viczorek, USMCR .
For Appellee: Captain Robert P. Schulhof, Jr., JAGC, USN; Major
Kelli A. O’Neil, USMC.
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Decided 31 October 2017
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Before M ARKS , J ONES , and LOCHNER, Appellate Military Judges
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This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
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PER CURIAM:
At a special court-martial, a military judge convicted the appellant,
pursuant to his pleas, of wrongful use, introduction, and distribution of
psilocybin, in violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2016). The military judge sentenced the appellant
United States v. Palang, No. 201700094
to 60 days’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The convening authority (CA) approved the sentence as adjudged.
The appellant raises a single assignment of error—that the trial counsel
made improper argument at sentencing. Having carefully considered the
record of trial and the parties’ submissions, we conclude the findings and
sentence are correct in law and fact, and find no error materially prejudicial
to the appellant’s substantial rights. Arts. 59(a) and 66(c), UCMJ.
I. BACKGROUND
During the plea colloquy, the appellant admitted that on 24 June 2016 he
purchased psilocybin (“mushrooms”) from a drug dealer in Jacksonville,
North Carolina, and ingested a quantity of it before heading back to Marine
Corps Base Camp Lejeune. Believing himself too incapacitated to drive his
vehicle aboard the base, he called a fellow Marine, Private (Pvt) J.C., to come
pick him up and bring his vehicle on base. Once on base and in the housing
area, the appellant retrieved the remaining psilocybin from his vehicle and
shared it with Pvt J.C.1
During the sentencing portion of the trial, the trial counsel began his
argument by asking the military judge to impose a sentence that included
150 days’ confinement, reduction to pay grade E-1, and a bad-conduct
discharge. The trial counsel argued:
Sir, the sentence requested by the government is deliberate
and tied to the offenses that have been alleged and pled guilty
to. Specifically, to specific deterrence, that ties the confinement
request. Specifically 90 days for the distribution, sir, 30 days
for the introduction, and 30 days for the use. Those are
reasonable deterrence measures so Lance Corporal Palang does
not engage in this behavior again. The bad-conduct discharge is
general deterrence. Marines cannot distribute drugs, bring
them on a base and use them, and still remain in the Marine
Corps. It would be improper precedent for the court to say
anything else.
....
Lance Corporal Palang has made deliberate decisions. These
were not impulsive. He planned and executed a plan to use
drugs, to introduce drugs, and to distribute drugs. Today for
1 Record at 16-29; Prosecution Exhibit 1.
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those decisions, and the consequences they have caused, Lance
Corporal Palang must be held accountable.2
The trial defense counsel did not object to the trial counsel’s argument.
II. DISCUSSION
“Improper argument is one facet of prosecutorial misconduct.” United
States v. Sewell, 76 M.J. 14, 18 (C.A.A.F. 2017) (citing United States v. Young,
470 U.S. 1, 7-11 (1985)). Prosecutorial misconduct in the form of improper
argument is a question of law we review de novo. United States v. Frey, 73
M.J. 245, 248 (C.A.A.F. 2014) (citing United States v. Marsh, 70 M.J. 101, 106
(C.A.A.F. 2011)). “‘The legal test for improper argument is whether the
argument was erroneous and whether it materially prejudiced the
substantial rights of the accused.’” Id. at 248 (quoting United States v. Baer,
53 M.J. 235, 237 (C.A.A.F. 2000)). “Because defense counsel failed to object to
the argument at the time of trial, we review for plain error.” United States v.
Pabelona, 76 M.J. 9, 11 (C.A.A.F. 2017) (citing United States v. Rodriguez, 60
M.J. 87, 88 (C.A.A.F. 2004)). To demonstrate plain error, the appellant must
persuade this court that: “‘(1) there was error; (2) the error was plain or
obvious; and (3) the error materially prejudiced a substantial right of the
accused.’” United States v. Tunstall, 72 M.J. 191, 193-94 (C.A.A.F. 2013)
(quoting United States v. Girouard, 70 M.J. 5, 11 (C.A.A.F. 2011)).
In determining whether an argument is improper, we consider whether
the comments were isolated incidents. United States v. Carter, 61 M.J. 30, 34
(C.A.A.F. 2005). The argument by a trial counsel must be viewed in the
overall context of the case; accordingly, “our inquiry should not be on words
in isolation, but on the argument as ‘viewed in context.’” Baer, 53 M.J. at 238
(C.A.A.F. 2000) (quoting Young, 470 U.S. at 16) (additional citation omitted).
At sentencing, trial counsel “may not . . . refer to . . . any policy directive
relative to punishment” but may “refer to generally accepted sentencing
philosophies, including . . . general deterrence . . . .” RULE FOR COURTS-
MARTIAL 1001(g), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2016 ed.).
Trial counsel may make general deterrence arguments when they are not the
government’s only argument. United States v. Akbar, 74 M.J. 364, 394
(C.A.A.F. 2015) (citing United States v. Lania, 9 M.J. 100, 104 (C.M.A. 1980)).
Because general deterrence is a proper sentencing consideration, “there is no
reason to insulate this factor from argument by trial counsel.” Lania, 9 M.J.
at 104. That said, “trial counsel may not invite the [court] to rely on
deterrence to the exclusion of other factors.” Id.
2 Record at 39.
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The appellant avers that the trial counsel’s yoking of the general
deterrence argument to a punitive discharge was improper and constituted a
plea for the automatic imposition of a punitive discharge in line with a “zero
tolerance” mentality. We disagree. There is nothing remarkable or improper
about an argument that suggests a punitive discharge is appropriate as a
deterrent to others who might contemplate drug distribution, introduction of
drugs onto a military installation, or drug use. The trial counsel’s argument,
although perhaps inartful, did not suggest that the Marine Corps policy on
drug use mandated a punitive discharge. We do not find error, much less
plain error, in this argument. See United States v. Kropf, 39 M.J. 107, 109
(C.M.A. 1994) (finding no clear or obvious error where trial counsel
mentioned Navy “zero tolerance” policy towards drugs in sentencing
argument); United States v. Hogg, No. 9700493, 1998 CCA LEXIS 252, *9-10
(N-M. Ct. Crim. App. 5 Jun 1998) (finding trial counsel’s repeated admonition
to members to “send the right message” in drug case, although improper, did
not constitute plain error).
Even if we were to conclude that the trial counsel’s argument was
improper, relief is merited only if that misconduct “actually impacted on a
substantial right of an accused (i.e., resulted in prejudice).” United States v.
Fletcher, 62 M.J. 175, 178 (C.A.A.F. 2005) (citation and internal quotation
marks omitted). “Where improper argument occurs during the sentencing
portion of the trial, we determine whether or not we can be ‘confident that
[the appellant] was sentenced on the basis of the evidence alone.’” Frey, 73
M.J. at 248 (quoting United States v. Halpin, 71 M.J. 477, 480 (C.A.A.F.
2013)) (brackets in original). We note that the trial counsel argued before a
military judge. Unlike court members, a military judge is presumed to know
the law and to follow it in the absence of clear evidence to the contrary.
United States v. Erickson, 65 M.J. 221, 225 (C.A.A.F. 2007). This knowledge
includes the various purposes and theories of sentencing, and this
presumption includes the ability to distinguish between proper and improper
sentencing arguments. Id. The appellant has failed to provide any evidence to
rebut this presumption, and there is no evidence in the record to suggest the
military judge was unduly biased or swayed by the argument. Moreover, “the
fact that trial defense counsel did not see fit to object to the argument is
‘some measure’ that the argument had ‘minimal impact.’” Akbar, 74 M.J. at
394-395 (citations and internal quotation marks omitted). Accordingly, there
is nothing to indicate material prejudice to the appellant’s substantial rights.
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III. CONCLUSION
The findings and sentence as approved by the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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