joins (dissenting):
I disagree that the purpose of trial counsel’s closing argument was to urge conviction on the basis of Hispanic ethnicity or guilt by association. Therefore, I dissent.
The question of the effect of improper prosecution argument was addressed by the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Applying these cases, the question is whether trial counsel’s argument “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, supra at 643, 94 S.Ct. 1868; Darden, supra at 181, 106 S.Ct. 2464. In order to make this determination, we must look at the entire record in this case. Donnelly, supra.
A. Hispanic Ethnicity
Trial counsel’s argument related to charges against appellant for conspiring with Private Juarez and Private Sorianocarcamo (aka Private Soriano) to steal, and then actually stealing another soldier’s automobile. Since appellant absented himself without authority after his arraignment, and thus was not present for the remainder of his trial, appellant’s trial defense counsel raised on his behalf the affirmative defense of alibi to the larceny charge, i.e., appellant was somewhere else when the actual theft of the automobile took place.
The Government granted immunity to Privates Juarez and Soriano and a civilian female in exchange for their testimony impheating appellant in both the conspiracy and the larceny. During cross-examination of these individuals, trial defense counsel attempted to establish that they were lying about appellant’s participation in the theft, thereby raising by implication the inference that appellant was not part of the conspiracy. Trial defense counsel’s argument’s on opening and closing supported this theory.
Presenting this alibi defense clearly put the question of the extent of appellant’s relationship with Juarez and Soriano squarely at issue. Proof that appellant had little or no prior affiliation with Juarez and Soriano could only serve to decrease, in the minds of the jurors, the likelihood that appellant was involved in the theft or conspiracy and thereby increase the plausibility of appellant’s alibi defense. Trial counsel took great pains to establish at trial that appellant, Juarez, and Soriano were well acquainted, and were in fact “running mates.” Hence, appellant’s closing argument reiterated the evidence presented at trial of this relationship.
Because of the alibi defense, as well as the conspiracy charge, there is no question that evidence of the relationship between appellant, Juarez, and Soriano was logically relevant. See Mil.R.Evid. 401 and 402, Manual for Courts-Martial, United States (1995 ed.). Hence, the argument itself was legally permissible, so the only question remaining is whether the use of “amigo” and “compadre” *154with respect to Hispanic co-conspirators was prejudicial.
Prejudice would attach if trial counsel’s argument was made for the purpose of kindling racial or ethnic stereotyping, so that a conviction would be obtained because of appellant’s affiliation rather than because the evidence against him was overwhelming. In this case, we need only look at trial counsel’s argument in its entirety in order to determine its intended purpose. The entire argument trial counsel made concerning appellant’s co-conspirators was as follows:
Now, let’s turn to the government witnesses. Gentlemen, I told you it would be ugly. These are lousy Marines. These are criminal Marines. They’re — Juarez and Soriano, you heard, they’re a platoon Commander’s worst nightmare incarnated. They come to life right there. But who is their amigo, gentlemen? Who is them compadre? You heard it from everybody. Lance Corporal Diffoot, the three of them. All three of them, running mates.
In context, trial counsel was describing the relationship between appellant, Juarez, and Soriano using several terms including the term “running mate.” The words “amigo” and “compadre” are Spanish words which also can mean running mate, particularly when used in this context. This is not a situation where “amigo” and “compadre” were used in a perjorative manner to describe people of Hispanic ancestry, but rather were used to describe the relationship between co-conspirators. Such use is entirely legal. It would be an absurd result to permit trial counsel to use English terms like “running mate” but disallow use of Spanish words with the same meaning merely because witnesses are of Hispanic descent.
This case is easily distinguishable from United States v. Lawrence, 47 MJ 572 (N.M.Ct.Crim.App.1997). In Lawrence, the term “three Jamaican brothers” was used in a pejorative manner with no other logical purpose than to cast the testimony of the defense witnesses in an adverse light based upon an implied racial stereotype. It is also distinguishable from to United States v. Doe, 903 F.2d 16 (D.C.Cir.1990), cited by the majority. Doe directly supports the proposition that the entire proceedings must be examined and the argument viewed in context. See DeChristoforo, supra at 643, 94 S.Ct. 1868. In Doe, the prosecutor’s argument included evidence that Jamaicans had taken over the local drug market. The Court of Appeals determined this evidence to be irrelevant and inadmissible because there was no evidence that the Jamaican defendants were connected with any Jamaican drug dealers or that Jamaican drug dealers were involved in the charged drug offenses. 903 F.2d at 27. Further, any other evidence against the accused in Doe for drug offenses was weak. Id. Under those facts, the Doe court found the prosecutor’s argument to be both improper and prejudicial because it invited the jury to convict the defendants based purely upon a stereotype. Id.
There is no question that race, ethnicity, or national origin may not be used to obtain a conviction. However, the mere use of Spanish words in a case where a witness is of Hispanic descent is not a per se denial of due process. Defense counsel did not object to the argument and did not request a curative instruction. Further, trial defense counsel did not raise the matter of the Hispanic background of the witnesses during voir dire. In this context, the use of the words “amigo” and “compadre” did not deprive appellant of a fair trial.
B. Guilt by Association
Trial counsel used the words “guilt by association” in his closing argument. However, viewed in context, I would find no error. Trial counsel argued as follows:
Now, earlier in my opening I told you or I proffered to you, who do criminals associate with? Other criminals. Gentlemen, Lance Corporal Diffoot was intimately tied up with the other two; yet, he distanced himself for this misconduct. He wasn’t there. Also, by the way, he didn’t use drugs. It was an innocent ingestion. Gentlemen, there is something called “guilt by association.” We clearly have that here.
Since neither Juarez nor Soriano was involved in the charge related to drug use, the argument appears to be focusing on appel*155lant’s surprisingly close association with an assortment of criminal activity for which he claims innocence. This argument, it seems to me, is fair commentary on the evidence. Trial defense counsel must have thought so too, as he interposed no objection and requested neither a mistrial nor even a curative instruction.
C. Prejudice
This is not a case where there has been a miscarriage of justice. Appellant absented himself from trial after arraignment. Then, in a veritable paroxysm of guilt and remorse, returned to military control, began serving his sentence and, most importantly, admitted guilt to the charged offenses.
In my view, under the facts and circumstances of this ease, it would be a true miscarriage of justice to set aside these findings of guilt and the sentence and authorize a retrial.