United States v. Grill , 1998 CAAF LEXIS 37 ( 1998 )

Opinion of the Court

EFFRON, Judge:

In accordance with his pleas, appellant was convicted by a general court-martial composed of officer and enlisted members of conspiracy to distribute anabolic steroids and of one specification each of use, distribution, and importation of anabolic steroids, in violation of Articles 81 and 112a, Uniform Code of Military Justice, 10 USC §§ 881 and 912a, respectively. He was sentenced to a bad-conduct discharge, confinement for 6 months, forfeiture of $200.00 pay per month for 2 months, and reduction to E-3. The convening authority approved these results, and the Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRONEOUSLY RESTRICTED THE CONTENT OF APPELLANT’S UN-SWORN STATEMENT TO THE SUBSTANTIAL PREJUDICE , OF APPELLANT.

For the reasons stated below, we hold that the restrictions imposed by the military judge on the right of appellant to make an unsworn statement during sentencing constituted prejudicial error.

I

RCM 1001, Manual for Courts-Martial, United States (1995 ed.), provides that, during the sentencing proceeding, the defense may present testimony by the accused and other witnesses who are subject to cross-examination. In addition, RCM 1001(c)(2)(C) provides that the accused “may make an unsworn statement and may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial.” The prosecution may introduce evidence to rebut any statement of facts in the unsworn statement. The unsworn statement may be presented by the accused, counsel, or both; and it may include either an oral or a written presentation, or both. Id.

This right of an accused to make an un-sworn statement has been recognized by the Manual for Courts-Martial “since the adoption of the Uniform Code of Military Justice” and was “permitted prior to adoption of the Uniform Code____” United States v. Party-ka, 30 MJ 242, 246 (CMA 1990). See, e.g., para. 75c (2)(c) and 53h, Manual for Courts-Martial, United States, 1969 (Revised edition); para. 75c (2), Manual for Courts-Martial, United States, 1951; para. 76, Manual for Courts-Martial, U.S. Air Force, 1949; §§ 359, 419, and 614, Naval Courts and Boards, 1937.

In United States v. Rosato, 32 MJ 93, 96 (1991), we observed that an accused’s right to make an unsworn statement “is a valuable right ... [that has] long been recognized by military custom” and that has been “generally considered unrestricted.” We also noted that the right was not wholly unrestricted and that it would be inappropriate, for example, for an unsworn statement to include matter that was “gratuitously disrespectful toward superiors or the court [or] a form of insubordination or defiance of authority.”

In Rosato, we observed that the portion of the unsworn statement precluded by the military judge, which concerned the service’s rehabilitation program, did not include any matter that should have been restricted. We also recognized that the accused could include in an unsworn statement matters that were not admissible in evidence on sentencing and that “any concern of the military judge with muddying the sentencing waters could have been adequately addressed in his instructions.” Id. (citing United States v. Breese, 11 MJ 17 (CMA 1981)).

II

Prior to the sentencing proceeding in the present case, trial counsel asked the military judge to preclude any reference to sentences received by appellant’s civilian co-conspirators on the ground that such evidence was not relevant. Defense counsel responded by noting that he did not “intend to elicit any such evidence” and would not “argue any evidence of other sentences to the members of the court” but that appellant intended to exercise his right to make an unsworn statement under RCM 1001(c) and Rosato.

The portion of appellant’s proposed un-sworn statement challenged by trial counsel read as follows:

There have been two additional factors which have made waiting during the last year even more difficult. One is knowing that my friends, the men who are weight lifters just like me and who were equally involved with steroids, have received such favorable treatment while I am being treated so harshly. It is my understanding that one of them ..., who was in the United States on a visa, was simply asked to leave and that no charges were brought against him. Another of my Mends ... was charged months ago, plead [sic] guilty, just like I have, and received only probation. Then he was allowed to move to Korea even though he was convicted and on probation. Finally, it is my understanding that no charges have ever been brought against [the third civilian conspirator], and may never be brought against him. The fact that everyone else received such lenient treatment, and that [the first two friends] have had their cases over and done with, while I am still waiting after so much time, makes this entire situation really hard for me.

The military judge sustained trial counsel’s objection, ruling that the material was “clearly inappropriate to present to members” and was objectionable as irrelevant and confusing under MiLR.Evid. 402 and 403, Manual, supra (1995 ed.).

III

We need not decide in this case whether the challenged statement, if presented as sworn testimony, would have been admissible under the rules of evidence during sentencing. As noted in Rosato, an accused’s right to allocution in the form of an unsworn statement, while not wholly unconstrained, has been broadly construed for decades. The matters presented in the proposed unsworn statement in the present case were no more objectionable than the matters concerning the rehabilitation program that the defense sought to present in the unsworn statement in Rosato. In the context of the proposed unsworn statement in the present case, it was error for the military judge to restrict the appellant’s right of allocution.

IV

Although the court below expressed concern that the information contained in appellant’s unsworn statement could be “confusing and misleading to the members,” unpub. op. at 2, we have confidence that properly instructed court-martial panels can place unsworn statements in the proper context, as they have done for decades. A military judge has adequate authority to instruct the members on the meaning and effect of an unsworn statement. See para. 2-37, Military Judges Benchbook at 2 — 46 (Dept, of the Army Pamphlet 27-9 (Change 1 Sept. 1985)). Such instructions, as well as trial counsel’s opportunity for rebuttal and closing argument, normally will suffice to provide an appropriate focus for the members’ attention on sentencing.

Under the Manual and Rosato, the right to make a statement in allocution is not wholly unfettered, but if there are abuses, they should be addressed in the context of the statements made in specific cases. The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution. If, in the future, the Manual’s traditional, largely unfettered right of allocution should lead to a plethora of mini-trials, the President has the authority to provide appropriate guidance in the Manual for Courts-Martial. Under the present rules, however, as we noted in Partyka, 30 MJ at 246, “[S]o long as this valuable right is granted by the Manual for Courts-Martial, we shall not allow it to be undercut or eroded.” See also United States v. Martinsmith, 41 MJ 343, 349 (1995) (right to make unsworn statement “considered an important right at military law, whose curtailment is not to be lightly countenanced”).

V

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence. The sentence is set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on sentence may be ordered.

Chief Judge COX and Judge SULLIVAN concur.