United States v. Marsh
2011 CAAF LEXIS 436
| C.A.A.F. | 2011Background
- Marsh was acquitted of rape but convicted at general court-martial of making a false official statement; sentence included bad-conduct discharge, $1,347 forfeiture for one month, and reduction to E-1.
- The Army Court of Criminal Appeals affirmed findings and sentence, but the decision was reviewed by the CAAF.
- Marsh made an unsworn statement during presentencing; government argued to give it less weight due to unsworn nature.
- Trial counsel argued Marsh’s unsworn statement, and the military judge gave standard unsworn-statement instructions.
- On appeal, the CAAF found the unsworn-statement argument proper but identified unduly inflammatory portions of closing arguments regarding pilots’ lives.
- Sentence was set aside and remanded for a sentencing rehearing due to improper argument impacting sentencing assessment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel’s unsworn-statement argument was error. | Marsh argues plain error from adverse inferences. | Government argues argument was permissible within instructions. | Argument not error; no plain error established. |
| Whether counsel’s statements about Marsh cannot be trusted with pilots’ lives were improper and prejudicial. | Marsh contends comments were not plainly erroneous or prejudicial. | Government contends argument supported by witnesses and relevant to character for rehabilitation. | Argument unduly inflamed and prejudicial; remand for sentencing rehearing. |
Key Cases Cited
- Breese v. United States, 11 M.J. 17 (C.M.A. 1981) (unsworn statements not evidence; fair prosecutorial comment acceptable)
- Schroder v. United States, 65 M.J. 49 (C.A.A.F. 2007) (prosecutorial misconduct must not inflame passions; limits on argument)
- Clifton v. United States, 15 M.J. 26 (C.M.A. 1983) (prohibition on improper characterization in closing)
- Erickson v. United States, 65 M.J. 221 (C.A.A.F. 2007) (plain-error standard for improper presentencing arguments)
- Paxton v. United States, 64 M.J. 484 (C.A.A.F. 2007) (plain-error review for improper presentencing argument)
- Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005) (placing jurors in shoes of future victims is impermissible)
- Williams v. United States, 23 M.J. 776 (A.C.M.R. 1987) (distinguishes actual vs potential victims in prosecutorial argument)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error analysis framework for review)
- Young v. United States, 470 U.S. 1 (1985) (plain-error standard and harmless error considerations)