United States v. Diffoot
2000 WL 1363975
C.A.A.F.
2000
Check Treatment
Docket

*1 STATES, Appellee, UNITED DIFFOOT, Corporal,

Robert Corps, Appellant.

U.S. Marine

No. 99-0570. Crim.App. No. J., SULLIVAN, opinion delivered EFFRON, Court, in which GIERKE U.S. Court COX, S.J., dissenting JJ., joined. filed a the Armed Forces. CRAWFORD, C.J., joined. opinion, in which Argued Jan. Dale Har- Appellant: Lieutenant O. For Sept. Decided ris, JAGC, (argued). USNR Appellee: Danette L. For Lieutenant Walker, JAGC, (argued); USNR Colonel Sandkuhler, USMC, and Kevin M. Com- (on Irvin, JAGC, Eugene E. USN mander Minick, brief); Lieutenant C. William JAGC, USNR, Margaret E. and Lieutenant JAGC, Jolly, USNR. opinion

Judge delivered the SULLIVAN of the Court. August June and composed of general

tried court-martial Camp Pen- officer and enlisted members dleton, Contrary pleas, he California. to his marijuana, conspir- guilty was found acy larceny, larceny, in viola- to commit Cox, dissenting Judge, opin- Senior filed 112a, 81, tion of Articles Uniform Crawford, Judge, joined. ion in which Chief 912a, Justice, §§ Military

Code of 10 USC 921, respectively. He was sen- discharge, confine- tenced to bad-conduct pay years, forfeiture of all ment for 6 allowances, lowest en- and reduction to the grade. convening authority ap- listed sentence, except proved this for forfeitures pay per month from the com- excess of $583 pletion until the confinement discharge. execution of his The Court of findings Appeals affirmed the Diffoot, sentence. No. 97- (N.M.Ct.Crim.App. WL 11, 1999). March July this Court re- On following view of the issue: *2 appeal WHETHER THE NAVY-MARINE The issue on concerns remarks by OF CRIMINAL AP- made his summation CORPS COURT findings. BY THAT A R. PEALS ERRED HOLDING at 505-17. Trial counsel following OF DURING THE made the remarks: “SERIES ERRORS” TRIAL ARGU- COUNSEL’S CLOSING Gentlemen, many lightning how times can MERITS, MENT THE ON INCLUDING only person; strike one in the course REFERENCES TO APPELLANT’S lifetime, of a over the of ten but course BY RACE AND “GUILT ASSOCIA- coincidence, days, gentlemen. Fantastic TION,” DID PLAIN NOT AMOUNT TO tragedy Corporal fantastic befell Lance ERROR. ISth, lfth, maybe Diffoot. the the On January, 15th he ivas framed for We that trial hold marijuana by punks. some evil Ten surf referring alleged appellant’s co-conspira- later, days January, on the he was 2fth of ethnicity tors’ and admitted crimi- Juarez, evil evil who is an framed nality, urging conviction based on the Juarez, Soriano, guy; by the evil framed association, theory guilt by prejudicially stealing and Maria Cervantes a car. for appellant’s right process violated to a Now, separate, wholly these are unrelated fundamentally fair trial. See United States punks criminals. surf and evil fel- [Evil (D.C.Cir.1990); 903 F.2d 16 They friend.] low Marines and have noth- 162 F.3d 878 Cir. ing pick to do with each other. Yet 1998). hapless, Corporal innocent Lance Dif- Appellant arraigned was on June Credibility, gentle- foot as their victim. August at which time trial set for was men, that is what this is all about. That is 1996. R. at 7. He absented himself without an incredible coincidence. and, thus, authority present for the remainder of R. his court-martial. at 37. * * * charges The for which was tried alleged conspiracy center around Now, government let’s turn to the wit- him, Juarez, Private and Private Sorianocar- Gentlemen, you nesses. it would be automobile, camo to steal an their ugly. lousy These are Marines. These vehicle, appellant’s marijua- use of They’re criminal Marines. —Juarez 562; Charge Soriano, heard, na. R. at The Govern- Sheet. you they’re a Platoon Juarez, immunity ment to Private nightmare Commander’s worst incarnated. Sorianocarcamo, and a civilian fe- right come to life there. But who is male, Cervantes, exchange Maria amigo, gentlemen? Ms. their their Who is testimony implicating appellant in compadre? everybody. You heard it from Corporal Diffoot, R. three them. offenses. Lance them, running All three mates. my opening or I earlier told put Appellant’s defense counsel forth evi- you, proffered to who do criminals associ- raising dence the defense of alibi on Gentlemen, ate with? Other criminals. larceny charge ingestion innocent de- and an intimately Diffoot marijuana charge. R. 276- fense for the tivo; up yet he dis- tied with the other 364-75, 467, 495; 88, 338-50, 429-38, 456-62, He tanced this misconduct. himself for Exhibit I. Both defenses were Defense Also, by way, he didn’t wasn’t there. Cynthia of Ms. Smith based ingestion. drugs. It was innocent brother, Fred, and her both of whom were something called there is appellant. Marines from friends of Several “guilt by association.” have We appellant’s appellant’s unit also corroborated here. (R. oth- alibi defense. Several added). (emphasis R. at 506-07 credibility poor er Marines testified to the 474-75, any R. at Defense counsel did the Government’s witnesses. comments, 478-79, military judge did and the with- not, two isolated racial remarks buried give any to the were sponte, sua instructions regarding lengthy argument the above remarks. the trial counsel. members appellate court below determined that unlikely particular that these remarks counsel were above comments made effect, impact, an unfair had much less materially prej- clearly erroneous but did not upon members’ deliberations.” Id. at rights. Article udice substantial *3 Appeals also con- The of Criminal 859(a). UCMJ, 59(a), § 10 USC refer- cluded that trial counsel’s erroneous “guilt by with admitted

ence to association” Court, question before this appel- materially prejudice not criminals did 179613, is whether the Court of 1999 WL lant. It stated: holding in that Appeals was correct the trial counsel did use the term While in certain errors made trial counsel his association,” “guilt by argument actual- his “materially preju not did ly appel- focused on the evidence of the rights [appellant].” dice the substantial of misconduct in the con- lant’s own criminal 59(a), appellate Article UCMJ. The lower spiracy and of the stolen vehicle. not court noted that defense counsel did ob We, again, unlikely it that the use of find ject to trial counsel’s references to the com any upon the this term alone had effect Hispanic ethnicity appellant, mon of R. at of the evidence. members’ assessment alleged co-conspirators. It and his also noted that defense did not counsel disagree of Id. We with Court Criminal trial when counsel invited the members to Appeals’ prejudice analysis that and conclude appellant pre convict on the basis of his counsel, these comments trial viewed to- Marines, offense association with these who gether in the context of entire record admitted their own criminal involvement in tidal, materially prejudice appellant’s Nevertheless, charged offenses.1 rights. v. substantial See United States argument, found al these references and (CMA Grandy, (holding 11 MJ error, though obvious and substantial were prejudice improper that from trial counsel error, plain not because there was “no rea light must be assessed in of entire possibility any sonable that of the errors in context); generally trial see United States v. argument materially trial preju (2000) Clark, (concluding upon 53 MJ 280 appellant’s process right diced the to a that review entire record the error did by affecting fair trial the members’ delibera materially prejudice the substantial 59(a), tions over the evidence. Article rights appellant); see v. also United States Unpub. op. UCMJ.” at 7. Kho, 54 MJ 63 particularly, More the Court of Criminal Turning in to the record we note initially concluded that trial coun- prosecution’s that the case for appellant sel’s remarks that was the of Lance Bruno’s automo- of Private and Private Juarez largely bile rested Sorianocarcamo “was an indirect ref- alleged co-conspirators, lant’s two erence to the race of and the Recog- Juarez and Private Sorianocarcamo. witnesses, logical relationship which had no nizing prosecution that these two any the issues in Id. at this case.” were themselves admitted criminals who held, however, that “racial these remarks testifying immunity, were overtly pejorative ... in were neither opening argument attempted justify his right, appeal preju- own nor a subtle members, the Government’s reliance these witnesses dice of the when viewed they necessary. argued: context in which were made. as unfortunate but He (1999); Despite language Carpenter, of “waiver” in RCM States v. 51 MJ Unit- Courts-Martial, 919(c), (1998); Manual for United States Sweeney, ed States v. 48 MJ cf. (1995 ed.), repeatedly we have held that where (CMA Causey, United States v. 37 MJ objection prosecution’s there is no defense 1993) (Sullivan, J., concurring). argument, plain we review for error. United Dickens, 24-27; pres- 775 F.2d the Government would love to United States (9th Cir.1983). witnesses, parade parade a This was done ent stellar, poster argument, point to substantiate closing Marines a critical (see Marshall, charges. Unfortunately, the trial activity. gen- Cir.1999)), the nature of criminal As a F.3d 1317-18 proposition, eral there are two axioms situation where the evidence of apply to criminals and criminal activities. overwhelming. See United 162 F.3d at Final- First, planning criminal Marines that are ly, being this was without effort done theft, obviously they going are not to seek military judge made counsel or or solicit assistance from the Marine of the improper argument disavow this or limit con- Second, Quarter. when do commit appellant’s ethnicity sideration and associ- activities, they going criminal are either proper purposes. ations to States away eyes, private, prying to do it in Cf. *4 (D.C.Cir. 1245, Spriggs, v. 102 detection; F.3d 1257-58 away they from or do solicit if 1996); Rose, assistance, supra v. United States going it is to be peers, their friends. The Court of Criminal discounted people? Who are these Fellow criminals. guilt-by-associa these racial remarks and the going help That is to them. who So argument tion because it concluded that tidal they going go have a choice. Either are to actually counsel focused his ilk, and look members their own for showing specific on the evidence the case criminals, they going or to do it fellow Indeed, by appellant. conduct counsel private they get caught. That so don’t heavily rely testimony appel on the getting is what this is all about. Not alleged co-conspirators, who were the caught. way thing That is the this whole principal government against ap way and that unfolded unraveled. pellant, and who identified him as a member added). (emphasis R. conspiracy person at 100 of their and as the who note, however, actually stole the car. We words, properly In other he asked the mem- that the defense called two civilian witnesses disregard bers not to these witnesses’ testi- without criminal involvement in this case to mony simply because admitted their appellant at establish the defense of alibi for participation in own these crimes. See Unit- theft, alleged the time of the defense (7th Rose, 1414, ed v. 12 F.3d 1424-26 States ingestion. Accordingly, of innocent we dis Cir.1994). agree with the conclusion that Court’s counsel, however, Trial was not content to prosecution’s evidence this case was over conspiracy rest his case on the whelming that trial comments counsel’s charges simply of two ad- had no effect on the members’ assessment of companion, mitted and a female criminals Doe, guilt.2 supra at See United States v. simply on the his case on basis 27-28; supra v. United States urinalysis presentation evidence. After Irvin, 860, 884-85; United States v. 87 F.3d blatantly argued the defense he (7th Cir.1996). 866 all these should be convicted of conclusion, military we note that our Hispanic he offenses because was the associ- justice system by Congress in established Hispanic ate of the two Marines who admit- accordance with the Constitution does committing the crimes. This was ted permit a conviction based on accused’s argument, a marked shift from his earlier (see Green, race United v. 37 MJ improperly attempted en- States and one which to (CMA 1993)), 385 or an accused’s associa- prosecution’s hance the case based on the Sitton, v. 39 MJ race and his criminal associa- tions. See United States defendant’s (CMA 1994). 310 the words stated States v. 903 F.2d at tions. See United Abello-Silva, Cir.1995); every agree United States v. 948 F.2d 2. We with the dissent that not racial requires (10th Cir.1991). a new reference in a criminal trial trial. Farley, Smith v. F.3d 663-64 Ethnicity Brosman, A. long ago by Judge permitting con theory on the basis of a victions related Trial principle would “a alien association establish conspiring charges against appellant for justice.” to American standards Private Sorianocarcamo Private Juarez Jacobs, 209, 211, 2 1 USCMA CMR (aka Soriano) steal, and then actu- Adkins, 115, 117 (1952); see United States automobile. ally stealing another soldier’s 5 USCMA CMR himself without au- appellant absented Since times, majority of this more recent thority arraignment, and thus was after his adopted Judge eloquent state- Wiss’s trial, present the remainder of his military ment on racial discrimination in the raised on his appellant’s trial defense counsel (see Witham, justice system behalf the affirmative defense of alibi (1997)), 47 MJ “Racial discrimination i.e., larceny charge, appellant was somewhere military justice system. is anathema to the actual theft of the automobile else when the ought not —and it will not —be tolerated place. took Greene, any form.” United States v. 36 MJ immunity Pri- Government (CMA (Wiss, J., concurring). fe- vates Juarez and and a civilian objection by in the absence Even defense exchange testimony imph- male in for their counsel, can this Court and will act reme- eating appellant in both the dy injustice preserve such a serious larceny. During cross-examination of integrity military justice system. *5 individuals, these trial defense counsel at- lying tempted to establish that were The decision of the United States Court theft, reversed, appellant’s participation in the about is and the find- thereby raising by implication the inference ings guilty and sentence are set aside. appellant part conspiracy. that Judge of trial The record is returned to the open- argument’s Trial defense counsel’s Navy. Advocate General of the A new trial ing closing supported theory. and this may be ordered.

Presenting put this alibi defense question appellant’s rela- the of the extent of COX, Judge, Senior with whom tionship squarely at with Juarez CRAWFORD, Judge, joins Chief appellant Proof that had little or no issue. (dissenting): prior affiliation with Juarez and Soriano disagree purpose that the of trial coun- decrease, only minds could serve to the closing argument urge sel’s was to conviction jurors, the the likelihood that was Hispanic ethnicity guilt by on the basis of or involved in the theft or and there- Therefore, association. I dissent. plausibility alibi increase the pains great defense. Trial counsel took question improper of the effect of Juarez, appellant, that establish at trial prosecution argument was addressed the acquainted, and were in Soriano were well Supreme Donnelly DeChristoforo, Hence, appellant’s “running fact mates.” 1868, 416 U.S. 94 S.Ct. 40 L.Ed.2d 431 evidence reiterated the (1974), Wainwright, and in Darden presented relationship. at trial of this L.Ed.2d 144 U.S. S.Ct. cases, Applying question the defense, of the alibi as well as the Because argument whether trial counsel’s “so infected conspiracy charge, question that there is no the trial unfairness as to make the with relationship evidence of the between resulting process.” a conviction denial of due lant, Juarez, logically and Soriano was rele- 1868; Donnelly, supra at Dar- S.Ct. vant. Mil.R.Evid. 401 and Manual See den, supra ed.). 2464. In order (1995 S.Ct. Courts-Martial, determination, at Hence, to make this we must look argument legally per- itself was missible, Donnelly, only question remaining the entire record in this case. so the supra. whether the use of respect Hispanic co-conspirators jority. directly supports proposition Doe was proceedings prejudicial. that the entire must be exam- argument ined and the viewed context. Prejudice if would attach trial counsel’s DeChristoforo, supra at S.Ct. argument purpose kin- was made for the prosecutor’s argument dling stereotyping, racial or ethnic so that a included evidence that Jamaicans had taken ap- conviction would be obtained because of drug over the local market. The Court of pellant’s affiliation rather than because the Appeals determined this irrel- evidence be against overwhelming. him evidence evant and inadmissible because there was no only we need look evidence that the defendants were Jamaican argument entirety in its in order to deter- drug connected with Jamaican dealers or purpose. argu- mine its intended The entire drug Jamaican dealers were involved concerning appel- ment trial counsel made charged drug offenses. 903 F.2d at 27. co-conspirators was as follows: Further, any against other evidence the ac- government turn let’s wit- in Doe for cused offenses was weak. you nesses. it would be facts, Id. Under those court Doe found ugly. lousy These are Marines. These prosecutor’s argument im- to be both They’re are criminal Marines. proper prejudicial because invited the —Juarez Soriano, heard, they’re platoon a jury purely to convict the defendants based nightmare Commander’s worst incarnated. upon stereotype. Id. right come to life there. But who is race, question ethnicity, There is no amigo, gentlemen? Who is them origin may national not be used to obtain a compadre? everybody. You heard it from However, Span- conviction. the mere use of Diffoot, the three of them. ish words in case where a witness is of them, running All three of mates. per denial of descent is not se process. Defense counsel did not context, describing trial counsel was request and did not a curative Juarez, relationship appellant, *6 Further, instruction. defense counsel including several Soriano terms Hispanic did not raise the matter of the “running “amigo” term mate.” The words background of the witnesses voir “compadre” Spanish words which context, dire. the use the words mate, running particularly also can mean “amigo” “compadre” deprive ap- when used this context. This is not a pellant of a fair trial. situation where B. Guilt Association perjorative were used in a de- manner to people Hispanic ancestry, scribe but rath- “guilt by Trial counsel used the words relationship er were used to describe the closing argument. association” in his How- co-conspirators. use entire- Such ever, context, I no viewed would find ly legal. would an be absurd result to argued Trial counsel as follows: error. permit English like terms my opening earlier “running Spanish mate” but use of disallow proffered you, who do criminals associ- meaning merely words with the same be- Gentlemen, ate with? criminals. Other cause witnesses are of descent. intimately Diffoot was tied two; up yet, with the other he distanced easily distinguishable This case is himself for this misconduct. He wasn’t Lawrence, MJ 572 Also, by way, there. he didn’t use Lawrence, (N.M.Ct.Crim.App.1997). drugs. ingestion. It was an innocent term “three Jamaican brothers” was used something “guilt there is called pejorative logical manner with no other clearly have that association.” We purpose than to cast the here. light defense in an adverse based in- upon implied stereotype. neither nor an racial It is also Since Juarez use, charge distinguishable from volved in the related to to United States (D.C.Cir.1990), focusing argument appears ma- be 903 F.2d 16 cited Then, arraignment. after himself from trial surprisingly close association with activity for which he remorse, assortment of criminal guilt paroxysm in a veritable argument, it This seems claims innocence. control, began serving military returned to me, commentary evidence. fair and, importantly, admitted sentence most his thought counsel must have so Trial defense charged guilt to the offenses. too, objection interposed no and re- as he view, nor even a curative circum- quested my neither mistrial under the facts and instruction. ease, mis- it would be a true stances of this Prejudice

C. findings carriage justice to aside these set and authorize a and the sentence has This is not a case where there been justice. miscarriage Appellant absented retrial.