UNITED STATES, Appellee 

v. 

Bryant K. MARSH, Private 

U.S. Army, Appellant 

No. 11-0123 

Crim. App. No. 20080382 

United States Court of Appeals for the Armed Forces 

Argued March 7, 2011 

Decided June 2, 2011 

ERDMANN, J., delivered the opinion of the court, in which 

EFFRON, C.J., and BAKER, J., joined. RYAN, J., filed a separate 

opinion concurring in part and dissenting in part, in which 

STUCKY, J., joined. 

Counsel 

For Appellant: Captain A. Jason Nef (argued); Colonel Mark 

Tellitocci and Lieutenant Colonel Imogene M. Jamison (on brief); 

Captain Michael E. Korte. 

For Appellee: Major Sara M. Root (argued); Colonel Michael E. 

Mulligan and Major Amber J. Williams (on brief); Captain Chad M. 

Fisher. 

Military Judge: Patrick J. Parrish 

This opinion is subject to revision before final publication. 
United States v. Marsh, No. 11-0123/AR 

2

Judge ERDMANN delivered the opinion of the court. 

 Private Bryant K. Marsh was acquitted of rape but convicted 

of making a false official statement at a general court-martial 

with members. He was sentenced to a bad-conduct discharge, 

forfeiture of $1,347.00 pay for one month, and a reduction to E1.1

 The convening authority approved the sentence and the United 

States Army Court of Criminal Appeals summarily affirmed the 

findings and sentence. United States v. Marsh, No. ARMY 

20080382, slip op. at 1 (A. Ct. Crim. App. Oct. 7, 2010). 

 “Merely urging the court members to consider an unsworn 

statement for what it is falls within the boundary of fair 

prosecutorial comment.” United States v. Breese, 11 M.J. 17, 24 

(C.M.A. 1981) (citations omitted). In addition, “it is error 

for trial counsel to make arguments that ‘unduly . . . inflame 

the passions or prejudices of the court members.’” United 

States v. Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007) (quoting 

United States v. Clifton, 15 M.J. 26, 30 (C.M.A. 1983)). We 

granted review to consider whether the trial counsel’s closing 

argument improperly invited the panel to draw an adverse 

inference from Marsh’s decision to give an unsworn statement, 

 

1

 We note that this forfeiture exceeds the maximum forfeiture 

allowed when the sentence does not include confinement (twothirds of a month’s pay based on the adjudged reduction to the 

pay grade of E-1). United States v. Warner, 25 M.J. 64, 67 

(C.M.A. 1987); Rule for Courts-Martial (R.C.M.) 1003(b)(2). 
United States v. Marsh, No. 11-0123/AR 

3

and also to determine whether the trial counsel’s argument 

unduly inflamed the court members by implying that Marsh would 

endanger pilots’ lives if he were allowed to remain in the Army.2

 

While we conclude that the trial counsel’s reference to Marsh’s 

unsworn statement did not constitute error, portions of the 

trial counsel’s closing argument were unduly inflammatory. We 

therefore reverse the decision of the Army Court of Criminal 

Appeals as to the sentence, set aside the sentence, and remand 

the case for a sentencing rehearing. 

BACKGROUND

 Private Bryant Marsh repaired helicopters for the 82nd 

Combat Aviation Brigade of the 82nd Airborne Division at Fort 

Bragg, North Carolina. One evening Marsh went to Private CG’s 

barracks room and asked her to go to a club with him and some 

fellow soldiers. En route to the club the group stopped and 

purchased alcohol and soda. CG poured out all but three inches 

 

2

 We granted review of the following issues: 

I. Whether it was plain error for trial counsel to argue 

that the panel should draw adverse inferences from 

Appellant’s failure to testify under oath during 

presentencing because Appellant would not answer her 

questions or theirs. 

II. Whether trial counsel sought to inflame the passions 

of the 82nd Airborne panel by implying that 

Appellant’s false official statement during a rape 

investigation puts pilots’ lives in danger. 

United States v. Marsh, 69 M.J. 455 (C.A.A.F. 2010) (order 

granting review). 
United States v. Marsh, No. 11-0123/AR 

4

of Coke from a twenty-ounce bottle and filled the rest with 

Hennessy Cognac. CG drank the contents of the bottle before 

they entered the club. CG remembered having several more drinks 

in the club, but remembers nothing more of the evening. 

 After CG became intoxicated at the club, two of the 

soldiers in the group tried to take her back to her barracks 

room but were unable to enter the post as she did not have her 

identification card. They then took CG to the hotel room of one 

of the soldiers where she passed out on the bed. Later that 

night Marsh arrived at the hotel room and took CG back to her 

barracks room, where they engaged in sexual intercourse. CG 

testified that she remembered nothing between being in the club 

and waking up the next morning to find her supervisor and medics 

in her barracks room. CG later went to the hospital where she 

completed a restricted rape report.3

 She testified that she did 

not want to file an unrestricted report “[b]ecause I wasn’t sure 

what happened to me and I didn’t want to just blame somebody for 

something.” 

 Almost two months later, CG listened to a cell phone 

recording of Marsh talking to another soldier. In the call 

 

3

 A restricted report allows a sexual assault victim to 

confidentially report the details of the assault, and receive 

treatment and counseling, without initiating an official 

investigation. Dep’t of the Army, Reg. 600-20, Personnel--

General, Army Command Policy para. 8-4(c) (Mar. 18, 2008). In 

contrast, an unrestricted report initiates an official 

investigation. Id. at 8-4(d). 
United States v. Marsh, No. 11-0123/AR 

5

Marsh referenced a list of men that CG had slept with and 

included his name on that list. CG testified that she was 

shocked when she heard that as she was unaware she had slept 

with him. She then contacted the Fort Bragg Criminal 

Investigation Division (CID) and filed an unrestricted rape 

report. 

Special Agent (SA) Ellis interviewed Marsh the same day 

that CG filed her unrestricted report. Marsh waived his rights 

and agreed to speak with SA Ellis. Marsh initially told SA 

Ellis that he and CG had consensual sexual intercourse in her 

room before they left her barracks room for the club. Later in 

the interview Marsh admitted that the intercourse occurred after 

they returned to her barracks room from the hotel, but again 

maintained that it was consensual. Marsh apologized to the 

agent for the deception and said that he thought CID wouldn’t 

want to hear that he had sexual intercourse with someone who had 

been drinking. 

DISCUSSION

I. Trial counsel’s reference to Marsh’s unsworn statement

Marsh gave an unsworn statement during the presentencing 

proceeding. Subsequently, the president of the panel asked the 

military judge what the difference was between a sworn and 

unsworn statement. The military judge said that he would give 

the panel an instruction on how to treat an unsworn statement, 
United States v. Marsh, No. 11-0123/AR 

6

but did give the following brief description at that time: “It 

basically means an unsworn statement, which a Soldier has the 

right to do, he [sic] may not be cross-examined upon an unsworn 

statement.” The president asked if the court members could ask 

questions of Marsh and the military judge responded that they 

could not and reiterated that after hearing arguments on 

sentencing, the court members would receive further 

instructions. 

During sentencing argument, trial counsel commented on 

Marsh’s unsworn statement: 

 Now the judge will instruct you on the difference 

between a sworn and an unsworn statement. The 

[G]overnment would ask you to give less weight to this 

unsworn statement -- the accused’s unsworn statement. 

The accused was not subject to cross-examination, he 

did not answer questions from the [G]overnment nor 

from you. 

Defense counsel did not object. During sentencing instructions, 

the military judge instructed the court members on how they were 

to consider Marsh’s unsworn statement: 

 The court will not draw any adverse inference 

from the fact the accused has elected to make a 

statement which is not under oath. An unsworn 

statement is an authorized means for an accused to 

bring information to the attention of the court and it 

must be given appropriate consideration. The accused 

cannot be cross-examined by the prosecution or 

interrogated by the court members or myself upon an 

unsworn statement, but the prosecution may offer 

evidence to rebut any statement of fact contained in 

such an unsworn statement. The weight and 

significance to be attached to an unsworn statement 

rests within the sound discretion of each court 

member. You may consider the statement is not under 
United States v. Marsh, No. 11-0123/AR 

7

oath, its inherent probability, or improbability, 

whether it’s supported or contradicted by other 

evidence in the case, as well as any other matter that 

may have a bearing on its credibility. In weighing an 

unsworn statement, you are expected to use your common 

sense and your knowledge of human nature and the ways 

of the world. 

 Marsh argues that it was plain error for the trial counsel 

to invite the court members to draw a negative inference from 

Marsh’s decision to make an unsworn statement. He argues that 

the trial counsel knew that the president of the panel was 

interested in asking questions and used this to improperly 

invite the panel to penalize Marsh for exercising his right. 

 The Government responds that the trial counsel’s comment 

remained within the bounds of permissible argument. The 

Government goes on to argue that, in any event, Marsh suffered 

no prejudice because the trial counsel’s comments were 

consistent with the military judge’s instructions and the 

evidence supporting the sentence was strong. 

 Improper argument is a question of law that we review de 

novo. United States v. Pope, 69 M.J. 328, 334 (C.A.A.F. 2011). 

Since the defense counsel did not object to trial counsel’s 

sentencing argument, we review Marsh’s claim for plain error. 

United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 2007). To 

prevail, Marsh must prove that: “(1) there was an error; (2) it 

was plain or obvious; and (3) the error materially prejudiced a 
United States v. Marsh, No. 11-0123/AR 

8

substantial right.” Id. (citation and quotation remarks 

omitted). 

 In Breese, after the accused made an unsworn statement, 

trial counsel argued: “‘[a]nd when you consider the accused’s 

statement, I ask you to consider something different about the 

accused’s statement. Everybody else who sat in that box today 

took an oath to tell the truth.’” 11 M.J. at 23 (alteration in 

original). The defense counsel objected to this statement but 

the objection was overruled. Id. The military judge in Breese

provided the members with essentially the same instruction that 

the military judge provided in this case. See id. Before this 

court, Breese argued that the trial counsel’s argument implied 

that he was lying since his statement was not under oath. Id. 

Noting that the military judge’s instructions provided the 

members with correct guidance, we held: 

The truth of the matter is that these statements are 

not made under oath and, thus, the “unsworn statement 

is not evidence.” Merely urging the court members to 

consider an unsworn statement for what it is falls 

within the boundary of fair prosecutorial comment. 

Here the challenged statement seems only to have been 

directed towards that end and did not constitute an 

invitation for the court members to draw an adverse 

inference against the appellant. 

Id. at 24 (citations omitted). 

 The military judge in this case correctly instructed the 

panel that Marsh could not be cross-examined by the Government 

or interrogated by the court members. He further instructed 
United States v. Marsh, No. 11-0123/AR 

9

them that they could consider that Marsh did not make his 

statement under oath and could also consider any other matter 

that may have a bearing on the statement’s credibility. The 

trial counsel’s statement did nothing more than ask the court 

members to consider Marsh’s unsworn statement in light of the 

fact that he was not subject to cross-examination and therefore 

urged them to give it less weight. In fact, Marsh’s statement 

was not subject to cross-examination and the members could 

legitimately consider that fact in assessing its credibility. 

This aspect of trial counsel’s argument fell within the boundary 

of fair prosecutorial comment. See id. As there was no error, 

the remaining prongs of the plain error inquiry need not be 

considered. 

II. Trial counsel’s argument that Marsh could not be trusted 

with the lives of pilots

During the sentencing phase of the court-martial, Marsh’s 

squad leader, Sergeant Pat C. Nieto, testified on his behalf. 

Sergeant Nieto testified that he rated Marsh in the top ten 

percent of the soldiers he supervised. He further testified 

that Marsh was “invaluable to me in training new soldiers coming 

in.” The fact that Marsh had been convicted of a false official 

statement would not cause Sergeant Nieto any concern in serving 

and deploying with him. On cross-examination, Sergeant Nieto 
United States v. Marsh, No. 11-0123/AR 

10

was asked if Marsh was currently working in his MOS4 as a 

helicopter repairman. Sergeant Nieto responded that he was not. 

On redirect, Sergeant Nieto clarified that Marsh was not 

actually “turning wrenches” but was supervising new soldiers. 

The military judge then asked why Marsh was not working in his 

MOS and Sergeant Nieto explained: 

Gentlemen, the reason Private Marsh is not 

serving in his MOS in Aviation is any time a 

Soldier is in trouble for anything, we usually 

restrict him from working on the aircraft as to 

not cause a problem with the aircraft. As we 

hold the pilots’ lives in our hands everyday, we 

don’t want his ideas and stuff going on in his 

head or his concerns to translate over to the 

job either inadvertently or purposely. So in 

this case, the commander the [sic] first 

sergeant restricted him from working on the 

aircraft until -- pending the results of his 

trial. And that is the reason he is not working 

on the aircraft at this moment. 

 Sergeant Nieto further clarified the situation during 

recross-examination: 

Q: You said that you don’t -- he can’t touch 

aircraft because you don’t want ideas in his 

head inadvertently or purposely transferring to 

other Soldiers or to -- 

A: No, sir, if I may clarify. When working on 

the aircraft, you hold peoples’ lives in your 

hand [sic] on a daily basis. We don’t want 

Private Marsh thinking about his case or 

something going on with his case that would 

interfere with his thought process while working 

on an aircraft so that he wouldn’t accidently do 

 

4

 Military occupational specialty. Dep’t of the Army, Reg. 611-

1, Personnel Selection and Classification, Military Occupational 

Classification Structure Development and Implementation para. 6-

4 (Sept. 30, 1997). 
United States v. Marsh, No. 11-0123/AR 

11

something to the aircraft or forget to put a 

bolt on the right way or something to that 

nature that would cause a problem with the 

aircraft. 

In his sentencing argument, the trial counsel argued that the 

court members could not trust Marsh with the lives of pilots 

because he lied to SA Ellis: 

Because a good Soldier doesn’t lie. The 

[G]overnment would argue that this Soldier 

should absolutely not remain in our Army that 

values integrity and honor, not lies and not 

deceit. You can’t trust the accused. The 

accused is an aircraft mechanic, someone you 

trust to work on your airplanes, to tighten that 

bolt, to make sure that those aircrafts are 

worthy to fly, to do rescue missions, to serve 

this Army. Can you trust someone who lies with 

the lives of those pilots? 

Emphasis added. 

 Marsh argues that the trial counsel unduly inflamed the 

passions of the court members on two grounds: his conviction 

for false official statement bears no relevance to his duty or 

ability to repair aircraft; and, the trial counsel invited the 

court members to put themselves in an aircraft repaired by Marsh 

and then instilled fear that the aircraft would crash. 

 The Government responds that the trial counsel simply 

rebutted Marsh’s sentencing witnesses’ testimony that he could 

be trusted and commented on his character for future service. 

The Government argues that Marsh’s truthfulness is highly 

relevant to whether rehabilitation could be successful or 

whether Marsh can complete his duty with good order and 
United States v. Marsh, No. 11-0123/AR 

12

discipline. Rather than inflame court members, the Government 

asserts that the trial counsel was simply referring to Sergeant 

Nieto’s statement “that aircraft mechanics are entrusted with 

pilots’ lives.” 

 As in the first issue, improper argument is a question of 

law that we review de novo. Pope, 69 M.J. at 334. Since the 

defense counsel did not object to the trial counsel’s comments, 

we again review for plain error. Erickson, 65 M.J. at 223. 

Marsh must prove the existence of error, that the error was 

plain or obvious, and that the error resulted in material 

prejudice to a substantial right. Id. 

 “[T]rial counsel is at liberty to strike hard, but not 

foul, blows.” Schroder, 65 M.J. at 58 (citation and quotation 

marks omitted). As a result, “it is error for trial counsel to 

make arguments that ‘unduly . . . inflame the passions or 

prejudices of the court members.’” Id. (quoting Clifton, 15 

M.J. at 30). The trial counsel also must not inject matters 

that are not relevant into argument. Id. (citing United States 

v. Fletcher, 62 M.J. 175, 180 (C.A.A.F. 2005); R.C.M. 919(b) 

Discussion). Nor can the trial counsel ask court members to 

place themselves in the shoes of the victim or a near relative. 

United States v. Baer, 53 M.J. 235, 237-38 (C.A.A.F. 2000). 

While this court has not previously examined whether a 

prosecutor can properly ask court members to place themselves in 
United States v. Marsh, No. 11-0123/AR 

13

the shoes of potential future victims, the United States Court 

of Appeals for the Sixth Circuit has addressed this issue. In 

Hodge v. Hurley, 426 F.3d 368, 384 (6th Cir. 2005), that court 

held that a suggestion that the jury put itself in the place of 

someone who may run into the defendant on the street is 

impermissible argument. This is because trial counsel must not 

“fan the flames of the jurors’ fears by predicting that if they 

do not convict . . . some . . . calamity will consume their 

community.” Bedford v. Collins, 567 F.3d 225, 234 (6th Cir. 

2009) (citation omitted). 

Trial counsel personalized his argument to the panel 

members by referring to Marsh as working on “your” aircraft and 

questioning whether Marsh could be trusted with the lives of the 

unit’s pilots. We believe that this portion of trial counsel’s 

argument constituted error and that it was plain and obvious. 

We can find no rational nexus between the fact that Marsh lied 

to SA Ellis during the investigation and the assertion that he 

could not be trusted with the lives of pilots in the future. 

The Government’s argument that the comment was merely reflecting 

the testimony of Marsh’s squad leader is not supported by the 

record. It is clear from Sergeant Nieto’s testimony that Marsh 

was placed in a supervisory role only for the duration of his 

court-martial because he might be “thinking about his case or 
United States v. Marsh, No. 11-0123/AR 

14

something going on with his case that would interfere with his 

thought process.” 

It cannot be reasonably inferred from this record that 

those concerns would extend beyond the conclusion of the trial. 

In fact, just the opposite is true. Sergeant Nieto and Marsh’s 

First Sergeant testified that they would serve and deploy with 

Marsh again. Consequently, the trial counsel’s assertion that 

the court members could no longer trust Marsh to perform his 

assigned duties is not supported by the testimony of Marsh’s 

immediate supervisors -- the only testimony on this subject in 

the record. Trial counsel’s invitation to the court members to 

imagine themselves as potential future victims only served to 

inflame a fear as to what might happen if the panel did not 

adjudge a discharge. See Hodge, 426 F.3d at 384; Bedford, 567 

F.3d at 234. 

 Our final analysis concerns whether this error prejudiced 

Marsh. Here we balance the severity of the improper argument, 

any measures by the military judge to cure the improper 

argument, and the evidence supporting the sentence to determine 

whether the “‘trial counsel’s comments, taken as a whole, were 

so damaging that we cannot be confident’ that [the appellant] 

was sentenced ‘on the basis of the evidence alone.’” Erickson, 

65 M.J. at 224 (quoting Fletcher, 62 M.J. at 184). 
United States v. Marsh, No. 11-0123/AR 

15

 As we discussed earlier, trial counsel’s argument that 

Marsh could not be trusted to work on helicopters in the future 

because of his conviction for making a false official statement 

lacks both a rational nexus and factual support in the record. 

The more serious aspect of trial counsel’s argument was his 

invitation to the members that they place themselves in the 

shoes of future victims of Marsh’s alleged inability to perform 

his duties and to imply that the lives of the unit’s pilots 

would be at risk. There is nothing in the record that supports 

this assertion and it clearly was unduly inflammatory. Although 

the military judge gave the standard instruction before findings 

arguments that counsels’ arguments are not to be viewed as 

evidence, he provided no specific curative instruction in 

response to trial counsel’s sentencing argument.5

 

In looking at the weight of evidence supporting the 

sentence, we note that the Government did not present a 

significant case in aggravation. In fact, the Government only 

introduced Marsh’s Enlisted Record Brief (ERB), which contained 

no derogatory information, and rested their sentencing case 

without calling any witnesses. Marsh, on the other hand, called 

three character witnesses and made an unsworn statement. His 

first character witness was First Sergeant Roque Quichocho, who 

 

5

 Generally, potential harm from improper comments can be cured 

through a proper curative instruction. See United States v. 

Ashby, 68 M.J. 108, 123 (C.A.A.F. 2009). 
United States v. Marsh, No. 11-0123/AR 

16

testified that Marsh had worked for him as a crew chief both at 

Fort Bragg and in Iraq. The First Sergeant testified that Marsh 

was intelligent, had a great work ethic, and that he could rely 

on him to complete sergeant level tasks without supervision. He 

testified that Marsh was “an all-around pretty good [s]oldier” 

and he would have no qualms in serving or deploying with him 

again. The next character witness was Marsh’s squad leader 

Sergeant Nieto, who testified that Marsh ranked in the top ten 

percent of his troops and that he would serve and deploy with 

him again. His final character witness was Marsh’s father who 

testified as to Marsh’s upbringing, his work ethic, and the 

family’s pride in Marsh’s service. 

The Government argues that there was no prejudice as the 

maximum sentence for this offense is a dishonorable discharge 

and five years of confinement and Marsh was only sentenced to a 

bad-conduct discharge, forfeiture of $1,347.00 pay for one 

month, and reduction to E-1. However, given the maximum 

authorized sentence and the sentence adjudged, it is apparent 

that the panel was somewhat receptive to the defense sentencing 

argument. As a result, it is not clear that Marsh’s sentence 

was unaffected by the trial counsel’s improper argument. Taking 

into consideration the record as a whole, including the relative 

weight of the parties’ respective sentencing cases and trial 
United States v. Marsh, No. 11-0123/AR 

17

counsel’s improper argument, we cannot be confident that Marsh 

was sentenced on the basis of the evidence alone. 

DECISION

 The decision of the United States Army Court of Criminal 

Appeals is affirmed as to findings, but is reversed as to the 

sentence. The sentence is set aside and the record is returned 

to the Judge Advocate General of the Army. A sentencing 

rehearing is authorized. 
United States v. Marsh, No. 11-0123/AR 

 RYAN, Judge, with whom STUCKY, Judge, joins 

(concurring in part and dissenting in part): 

 I agree with the Court that trial counsel’s comment on 

Appellant’s unsworn statement was proper. I respectfully 

dissent from the judgment because, even assuming error, 

trial counsel’s statement that Appellant could not be 

trusted with the lives of pilots was not shown by Appellant 

to be “plain,” “clear,” or “obvious” error. United States 

v. Olano, 507 U.S. 725, 734 (1993) (citations and quotation 

marks omitted).1

 Moreover, even if the error was plain, 

Appellant has not shown prejudice. 

 “Error is ‘plain’ when it is ‘obvious’ or ‘clear under 

current law.’” United States v. Harcrow, 66 M.J. 154, 162 

(C.A.A.F. 2008) (Stucky, J., with whom Effron, C.J., 

 

1

 Rule for Courts-Martial (R.C.M.) 1001(g) provides that 

“[f]ailure to object to improper argument before the 

military judge begins to instruct the members on sentencing 

shall constitute waiver of the objection.” (Emphasis 

added.) The text of this rule forecloses appellate review 

altogether when the accused fails to object -- a conclusion 

bolstered by comparison to other provisions that, unlike 

R.C.M. 1001(g), treat failure to object as waiver “in the 

absence of plain error.” See, e.g., R.C.M. 920(f); 

1005(f); 1106(f)(6). Nonetheless, our precedents hold that 

in the absence of objection we review a claim of improper 

prosecutorial presentencing argument for plain error. See, 

e.g., United States v. Erickson, 65 M.J. 221, 223 (C.A.A.F. 

2007); United States v. Paxton, 64 M.J. 484, 487-88 

(C.A.A.F. 2007). And while treating failure to object to 

improper presentencing argument as waiver rather than 

forfeiture appears compelled by R.C.M. 1001(g), no one has 

requested that we revisit case law to the contrary.
United States v. Marsh, No. 11-0123/AR 

2

joined, concurring in the result) (quoting Olano, 507 U.S. 

at 734). Assuming arguendo that trial counsel’s statement 

that Appellant could not be trusted with the lives of 

pilots was improper, it was not so “obvious” an error as to 

constitute plain error. 

 First, it is not at all clear that trial counsel 

sought to place members “in the shoes of potential future 

victims.” United States v. Marsh, __ M.J. __, __ (12-13) 

(C.A.A.F. 2011). While the argument can be made that trial 

counsel “personalized his argument to the panel members by 

referring to Marsh as working on ‘your’ aircraft and 

questioning whether Marsh could be trusted with the lives 

of the unit’s pilots,” id., it is neither plain nor obvious 

that trial counsel’s use of the word “your” was meant to 

refer specifically to the members (rather than the Army as 

a whole), especially since trial counsel immediately 

reverted to talking about the endangered future pilots in 

the third person: “Can you trust someone who lies with the 

lives of those pilots?” (Emphasis added.) 

Second, even if that was the trial counsel’s 

objective, the Court concedes that it “has not previously 

examined whether a prosecutor can properly ask court 

members to place themselves in the shoes of potential 

future victims.” Marsh, __ M.J. at __ (12-13). While one 
United States v. Marsh, No. 11-0123/AR 

3

might expect the majority in this case to answer that 

question “no” (since that is the premise for error), plain 

error review requires this Court to look to “‘current

law.’” See Harcrow, 66 M.J. at 162 (Stucky, J., with whom 

Effron, C.J., joined, concurring in the result) (emphasis 

added) (quoting Olano, 507 U.S. at 734). Acknowledging 

that we have not addressed the issue compels the conclusion 

that any error was not plain under the precedent of this 

Court. See United States v. Weintraub, 273 F.3d 139, 152 

(2d Cir. 2001) (finding no plain error where “[n]o binding 

precedent . . . at the time of trial or appeal” established 

error). And under the precedent from the relevant CCA, the 

argument at issue appears to have been permissible. United 

States v. Williams, 23 M.J. 776, 779 (A.C.M.R. 1987) 

(drawing a distinction between asking members to place 

themselves in the shoes of actual victims and in the place 

of potential future victims). 

 And while plain error may not “automatically” be 

ineffective assistance of counsel, see United States v. 

Bono, 26 M.J. 240, 243 n.2 (C.M.A. 1988), Appellant 

conceded at oral argument that his failure to raise an 

ineffective assistance of counsel claim “is certainly 

something for this Court to consider in deciding whether 

the error was plain and obvious.” Considering that the 
United States v. Marsh, No. 11-0123/AR 

4

prosecutorial comments at issue are a far cry from the sort 

of comments we have previously found to be plainly 

inflammatory and improper, it is understandable why defense 

counsel failed to object. See, e.g., Erickson, 65 M.J. at 

223-24 (testing trial counsel’s comparison of the appellant 

to Adolf Hitler, Saddam Hussein, and Osama bin Laden for 

prejudice); United States v. Clifton, 15 M.J. 26, 30 

(C.M.A. 1983) (holding that trial counsel’s “conjugation of 

adultery with heroin” was inflammatory); United States v. 

Lewis, 7 M.J. 958, 959-60 (A.F.C.M.R. 1979) (holding that 

it was error to insinuate that the accused would use drugs 

on the job when the accused had only been convicted of 

selling drugs). In other words, while we do not disagree 

that the law prohibits arguments that “‘unduly . . . 

inflame the passions or prejudices of the court members,’” 

Marsh, __ M.J. at __ (12) (quoting United States v. 

Schroder, 65 M.J. 49, 58 (C.A.A.F. 2007)), it was not plain 

or obvious that the prosecutorial comments at issue did any 

such thing. 

 With regard to prejudice, the essential question is 

whether “‘trial counsel’s comments, taken as a whole, were 

so damaging that [this Court] cannot be confident that the 

members convicted [and sentenced] the appellant on the 

basis of the evidence alone.’” Schroder, 65 M.J. at 58 
United States v. Marsh, No. 11-0123/AR 

5

(quoting United States v. Fletcher, 62 M.J. 175, 184 

(C.A.A.F. 2005)). In this case, trial counsel’s comments 

were made in furtherance of the Government’s theme that a 

liar has no place in the military, which values integrity, 

honor, and trust. The theme was a valid one, and trial 

counsel’s alleged misconduct was minor. Indeed, it was so 

minor that the members only sentenced Appellant to a badconduct discharge, partial forfeitures, and reduction to 

the lowest enlisted grade. Considering that they could 

have sentenced him to a dishonorable discharge, five years 

of confinement, reduction to the lowest enlisted grade, and 

forfeitures of all pay and allowances, Article 58a(a), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 

858a(a) (2006); Manual for Courts-Martial, United States

pt. IV, para. 31.e. (2008 ed.), it is difficult for me to 

conclude that the members were in fact inflamed or that 

Appellant suffered prejudice. See United States v. Young, 

470 U.S. 1, 15 (1985) (noting that plain error doctrine is 

meant to correct “only ‘particularly egregious errors’” 

(quoting United States v. Frady, 456 U.S. 152, 163 

(1982))). 

I would affirm the decision of the United States Army 

Court of Criminal Appeals.