Appellant was tried before a general court-martial composed of officer and enlisted members. Contrary to his pleas the members found appellant guilty of 37 specifications of larceny, 25 specifications of forgery, and two specifications of wrongfully using an identification card in violation of Articles 121, 123, and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 921, 923, and 934 (1994). He was sentenced to confinement for 15 years, forfeiture of all pay and allowances, reduction to pay grade E-l, a dishonorable discharge, and a fine of $15,000 plus an additional five years confinement if the fine was not paid. The convening authority approved the sentence as adjudged.
We have carefully examined the record of trial, appellant’s nine assignments of error and the Government’s responses. We conclude that the findings and sentence are correct in law and that no error materially prejudicial to the substantial rights of appellant was committed. Arts. 59(a) and 66(c), UCMJ.
I. Prosecutorial Misconduct
Appellant’s Assignments of Error I — III and V are allegations of prosecutorial misconduct and will be considered together. The Court of Appeals for the Armed Forces defined prosecutorial misconduct as “action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule or an applicable professional ethics canon.” United States v. Meek,
A. Standard of Review
A finding of prosecutorial misconduct does not by itself mandate that appellant be given a new trial. Our superior court has stated that we must first determine if the violation “actually impacted on a substantial right of an accused.” Meek,
Discussion
1. The Cross Examination Issue
The trial counsel asked appellant on 21 occasions whether other witnesses “were lying” when they testified during the Government’s case. He was also asked on 3 occasions if the witnesses “made ... [their testimony] up.” Appellant argues that repeatedly asking him on cross-examination whether Government witnesses were lying was improper. See United States v. Richter,
The Government argues that the actions of the prosecutor are not error, and even if error, the error was not plain.
Having determined that these questions are improper, we next look to see if the error was clear or obvious. We find, under the circumstances of this case, that it was. Asking questions that shifted the determination of credibility 24 times was unreasonable. The trial counsel is a representative of the United States, a role analogous to that of a United States Attorney. As the United States Supreme Court said:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore in a criminal prosecution is not that it shall win a ease, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Berger,
2. Argument on Sentence
Appellant also alleges that the argument of trial counsel during sentencing focused primarily on general deterrence and was, therefore, improper. We disagree that the trial counsel’s argument focused on this point. She discussed many appropriate reasons for punishing appellant. These included the impact appellant’s actions had on his victims, his prior military record including past counseling entries, the amount of money that was taken, the shame and dishonor he brought on the Marine Corps, and his lack of remorse.
Appellant also argues that the trial counsel committed plain error by arguing for an increased punishment because he purportedly testified falsely. Had counsel done this we would agree that it was error. However, we find that trial counsel properly argued appellant’s purported false testimony to show a lack of rehabilitative potential, which is allowable. United States v. Warren,
3. Cumulative Error
Appellant cites as his fifth assignment of error the cumulative effect of the conduct of the trial counsel and the rulings of the military judge. He cites as improper conduct: the trial counsel’s improper questioning of appellant; closing argument which commented on evidence appellant had prevented from being admitted, implying he was hiding evidence from the members; the question to appellant’s co-actor which solicited a response that he received a 10-year sentence for his participation in the misconduct; and the alleged emphasis on general deterrence in her sentencing argument. Appellant claims the cumulative effect of these errors denied him a fair trial. We disagree. Although we did find error in the improper questioning by the trial counsel, we found no prejudice. As to her comment during the closing argument on the evidence that was not admitted, the military judge immediately stopped counsel and directed the members to disregard that comment. Record at 563. The military judge gave the same cautionary instruction when trial counsel asked the co-actor why he was in the brig.
II. Taking Exhibits Home During an Evening Recess
In his fourth assignment of error, appellant alleges that the military judge erred in allowing a member to take exhibits home during an evening recess. Appellant claims that this is a jurisdictional error. He claims that this allowed the member to deliberate without the required quorum of the court present and thus the court-martial was improperly constituted and jurisdiction terminated. We disagree. We find this to be a question of procedure under Rule for Courts-Martial 921, Manual for Courts-Martial, United States (1995 ed.) and not a jurisdictional issue. The requirements of Article 16(1), UCMJ, were met; the court was properly constituted. Because the defense raised no objection at trial, we have applied a plain error analysis.
The facts are not in dispute. At the end of one day’s court session, a court member asked the military judge if it was permissible to take his notes home with him for the evening. The military judge replied in the affirmative, but said, “Again, this case is not over. The instruction that I gave you still applies. Do all members understand that?” Record at 538. The members replied in the affirmative. Id. Another member then asked if it was permissible to take copies of any of the evidence already admitted home as well. The military judge indicated that the member could do that. Record at 538. The military judge had properly instructed the members that they must keep an open mind until all of the evidence was presented and that they could not discuss the case with anyone until they were in their closed deliberative session. Record at 37-39, 71-74. Members are presumed to follow the instructions of the military judge. United States v. Ricketts,
The members were instructed not to discuss the case and to keep an open mind until the end of the ease. At the time of this evening recess, the case had not ended. Record at 538. The purpose of R.C.M. 921
III. Inappropriately Severe Sentence
In appellant’s sixth assignment of error, he claims that his 15 years of confinement and his dishonorable discharge constitute an inappropriately severe sentence. A review of the charges and specifications to which appellant was convicted clearly demonstrates the seriousness of his misconduct. His actions adversely impacted all of those individuals whose checks he stole. For one of the victims, it took a year or more to receive his $16,000 separation check. Record at 641-42.
“Sentence appropriateness involves the judicial function of assuring that justice is done and that the accused gets the punishment he deserves.” United States v. Healy,
IV. Cruel and Unusual Post-trial Punishment
In appellant’s seventh assignment of error and his supplemental assignment of error he claims that he was subjected to cruel and unusual punishment due to the conditions of his confinement. He also claims that he was placed under these conditions because of his race. Because this cruel and unusual punishment is alleged to have occurred prior to the convening authority’s action, we have exercised our broad discretionary powers to examine a court-martial sentence for legal error. United States v. Valead,
Appellant claims to have been subjected to cruel and unusual punishment in violation of Article 55, UCMJ, and U.S. Const. Amend. VIII. He claims he was made to stay in a small cell, with very limited recreation and visitation privileges. No dispute appears in the record as to the small size of his cell or the limitations placed on his privileges. Because the facts pertaining to the physical conditions of his confinement are uncontested, no further evidentiary hearing is required before we decide the legal issue. United States v. Ginn,
Appellant also complains that he should not have been placed in maximum custody, even though as noted above, the conditions of which he complains are authorized for maximum-security prisoners and do not, by themselves, constitute cruel and unusual punishment. We note at the outset, that no prisoner has a legal entitlement to a particular custody classification. This court has not and will not participate in the day-today administration of confinement facilities. See Bell v. Wolfish,
In his Supplemental Assignment of Error, appellant claims his classification was based on his race. We disagree. As the affidavits of Chief Warrant Officer-4 Spradley and Chief Warrant Officer-3 Mershon indicate, appellant was convicted of many serious, although non-violent, offenses. He received a lengthy sentence that he felt was undeserved. He did not accept responsibility for his actions. He was an escape risk based on these factors. His Hispanic heritage did not affect the viability of these other risk factors. We also note that the letter referred to by appellant was sent to the brig for his pretrial confinement hearing.
We also note that if appellant felt he was being treated unfairly or being discriminated against while at the Camp Pendleton Brig, he should have pursued an administrative remedy while at that facility. United States v. Coffey,
Y. CONCLUSION
Accordingly, we affirm the findings and sentence as approved below.
Senior Judge DORMAN and Senior Judge LEO concur.
Notes
. The Government correctly argues that Richter, as a Second Circuit Court of Appeals case is not binding on this court and that even the Second Circuit has consistently limited Richter to the facts of that case. We note that the Second Circuit, as well as the United States Supreme Court, reviews allegations of prosecutorial misconduct on a case by case basis, assessing the nature of the conduct and the overall impact of the conduct on appellant’s substantial rights. See United States v. Modica,
. Counsel’s question to the co-actor was designed to obtain a response that he was serving a 10-year sentence for his participation in these events.
. In United States v. Valead,
. The criteria outlined in the Department of the Navy Corrections Manual (Secretary of the Navy Instruction 1640.9B (2 Dec 1996)) controls these administrative decisions. Although at first glance it may seem unusual that the staff at the Camp Pendleton Brig never attempted a lower classification of appellant during the 412 days pending transfer to the United States Disciplinary Barracks, the affidavits and documents attached to the record indicate that the brig personnel appropriately reviewed the status of his confinement. Specifically, the Commanding Officer of the brig reviewed and approved the continuation of this status every 30 days as required by regulation. The Classification and Assignment Board met on 12 occasions to review appellant’s classification status. Camp Pendleton Base Brig Conduct Record of Sgt Edward L. Jenkins, USMC, dated 2 Apr 1996 to 20 Nov 1997.
. CW03 Mershon's affidavit indicates that "a letter from [appellant’s] Commanding Officer to the Initial Review Officer on 4Apr96 states that Prisoner Jenkins hispanic [sic] heritage would easily allow him to enter Mexico and disappear.” Affidavit of CW03 Lynn A. Mershon, USMC of 2 Nov 1998.
. Appellant’s eighth assignment of error has been considered. We find that it has no merit and does not warrant further discussion.