United States v. Jeffery , 1998 CAAF LEXIS 54 ( 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 committing indecent acts with a minor (2 specifications), in violation of Article 134, Uniform Code of Military Justice, 10 USC § 934. He was sentenced to a dishonorable discharge, confinement for 2 years, and reduction to E-4. The convening authority approved these results, and the Court of Criminal Appeals affirmed the findings and sentence.

This Court granted review of the following issue:

WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL PREJUDICE OF APPELLANT BY LIMITING THE CONTENT OF APPELLANT’S UNSWORN STATEMENT BY PROHIBITING HIM FROM EXPRESSING HIS DESIRE FOR AN ADMINISTRATIVE RATHER THAN A PUNITIVE DISCHARGE AND THE FINANCIAL IMPACT WHICH WOULD RESULT FROM HIS LOSS OF RETIREMENT.

After full consideration of the parties’ briefs and oral argument on this issue, we hold that the military judge erred and that a new sentencing proceeding is necessary.

I

In a written pretrial motion in limine, trial counsel sought to prevent the defense from making any comment through an unsworn statement by appellant, prior to sentencing or otherwise, “regarding the possibility of [appellant] receiving an administrative discharge if the Court-Martial does not punitively discharge [appellant].” Similarly, the Government asked the military judge “to order the defense not to introduce in any fashion evidence of the financial impact regarding the accused’s potential loss of retirement benefits if reduced in rank or punitively discharged.”

During the litigation of this motion, defense counsel stated that appellant, in his unsworn statement, would say that, “if he is not punitively discharged from the Air Force, it may be that he would be administratively discharged later on.” Defense counsel did not present the details as to what appellant might say in his unsworn statement regarding the potential loss of retirement benefits, appellant having over 18 years of service at the time of trial, but he said: “I certainly think that it’s fair comment in the evidence or in the unsworn statement presented during our sentencing ease in chief to comment that if [appellant] is punitively discharged certainly that precludes any form of retirement from the Air Force and any benefits therefrom.”

The military judge ruled that “[t]he issue of whether [appellant] might be discharged administratively is irrelevant,” and she “directed] the defense that they will not mention a possible administrative discharge.” Regarding retirement benefits, she ruled:

Now, if you want to say that if he gets kicked out and he’s not going to be able to retire from the military, clearly that’s acceptable. On the other hand, if you’re going to get into any kind of figures, amounts, or anything like that, I believe that is unacceptable, and there is somewhere in-between that you’re probably going to end up and I don’t know where that is. So, if you’re going to play it this way and the Government objects to what you say I will immediately call a 39(a) session [Art. 39(a), UCMJ, 10 USC § 839(a) ].

II

A military accused’s right of allocution through an unsworn statement prior to sentencing is one of long-standing recognition and is broad in scope. This Court observed in United States v. Rosato, 32 MJ 93, 96 (1991), that an accused’s right to make an unsworn statement in sentencing “is a valuable right ... [that has] long been recognized by military custom” and that has been “generally considered unrestricted.” Accord United States v. Grill, 48 MJ 131 (1998); United States v. Martinsmith, 41 MJ 343 (1995); United States v. Partyka, 30 MJ 242 (CMA 1990).

We have acknowledged that this broadly construed right is not wholly unconstrained. See, e.g., Grill and Rosato. At the same time, “[t]he 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.” Grill, 48 MJ at 133. “[W]e have confidence that properly instructed court-martial panels can place unsworn statements in the proper context, as they have done for decades.” Id.

Whatever limits there might be on the right of allocution under the Manual for Courts-Martial and our case law, comments that address options to a punitive separation from the service and that address repercussions of such a separation on retirement eligibility and benefits are not outside the pale. See also United States v. Becker, 46 MJ 141, 142 (1997); United States v. Greaves, 46 MJ 133, 139 (1997). Accordingly, the military judge erred when she circumscribed, as she did, appellant’s right of allocution in his un-sworn statement.

Ill

The decision of the United States Air Force Court of Criminal Appeals is affirmed as to findings but reversed as to sentence. The record of trial is returned to the Judge Advocate General of the Air Force for remand to the convening authority, who may either set aside the sentence and order a rehearing on sentence; or approve a sentence that does not include a punitive discharge.

Chief Judge COX and Judge SULLIVAN concur.