United States v. Tschip , 2003 CAAF LEXIS 562 ( 2003 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Steven TSCHIP, Airman First Class
U.S. Air Force, Appellant
No. 03-0024
Crim. App. No. ACM S30016
United States Court of Appeals for the Armed Forces
Argued April 9, 2003
Decided June 11, 2003
EFFRON, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Antony B. Kolenc (argued); Colonel
Beverly B. Knott and Major Terry L. McElyea (on brief).
For Appellee: Captain Shannon J. Kennedy (argued); Colonel
LeEllen Coacher and Lieutenant Colonel Lance B. Sigmon (on
brief).
Military Judge: Kurt D. Schuman
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Tschip, No. 03-0024/AF
Judge EFFRON delivered the opinion of the Court.
A special court-martial composed of officer and enlisted
members, convicted Appellant, pursuant to his pleas, of two
specifications of dereliction of duty and one specification of
dishonorably failing to maintain sufficient funds in his credit
union account to pay for checks he uttered, in violation of
Articles 92 and 134, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. §§ 892, 934 (2000). He was
sentenced to a bad-conduct discharge, and reduction to the
lowest enlisted grade. The convening authority approved these
results, and the Court of Criminal Appeals affirmed in an
unpublished opinion.
On Appellant’s petition, we granted review of the following
issue:
WHETHER THE MILITARY JUDGE COMMITTED PLAIN
ERROR BY GIVING THE MEMBERS MISLEADING
INSTRUCTIONS ABOUT THE POSSIBILITY OF
APPELLANT BEING ADMINISTRATIVELY DISCHARGED
FROM THE AIR FORCE IN THE EVENT THE MEMBERS
CHOSE NOT TO ADJUDGE A PUNITIVE DISCHARGE
AND BY INFORMING THE MEMBERS THAT THEY COULD
DISREGARD APPELLANT'S REQUEST IN THIS REGARD
WHICH HE MADE IN HIS UNSWORN STATEMENT.
For the reasons set forth below, we affirm the decision of
the Court of Criminal Appeals.
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I. UNSWORN STATEMENTS DURING SENTENCING
During sentencing proceedings in a court-martial, the
accused has the right to “testify, make an unsworn statement, or
both in extenuation, in mitigation or to rebut matters presented
by the prosecution[.]” Rule for Courts-Martial 1001(c)(2)(A)
[hereinafter R.C.M.]. Under R.C.M. 1001(c)(2)(C) the unsworn
statement may be either oral or written, and it may be presented
either by the accused or by counsel. The accused may not be
cross-examined by the prosecution or questioned by the court-
martial upon it, but the prosecution may introduce evidence to
rebut statements of facts therein. Id. Although the scope of
an unsworn statement may include matters that are otherwise
inadmissible under the rules of evidence, the right to make an
unsworn statement is not wholly unconstrained. See, e.g.,
United States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998).
Military judges have broad authority to give instructions on the
“meaning and effect” of the accused’s unsworn statement, both to
ensure that the members place such a statement “in the proper
context” and “to provide an appropriate focus for the members’
attention on sentencing.” United States v. Grill, 48 M.J. 131,
133 (C.A.A.F. 1998).
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II. FACTUAL BACKGROUND
During sentencing, Appellant presented testimony and
documentary evidence in extenuation and mitigation of his
offenses, including an unsworn statement. The unsworn statement
covered a wide range of issues. Appellant apologized to his
wife, his family and the members of his unit; gave brief
highlights from his childhood; talked about his father’s service
of twenty-seven years in the Army; detailed his involvement in
the Air Force Junior Reserve Officer Training Corps in high
school and Army Reserve Officer Training Corps in college;
discussed his efforts to make restitution to the victims of his
crimes; and outlined his service on active duty in the Air
Force. Appellant concluded his unsworn statement by reading the
following passage to the members:
No matter what happens at the end of today I
know in my heart I will overcome the
mistakes I made and move on with my life. I
accept total responsibility for what I have
done and the fact that my Air Force career
is most likely over with now. I would still
like to stay in the Air Force though. As
much as I would like the chance to redeem
myself, I know that my commander can
discharge me even if I do not receive a bad
conduct discharge today. The worst
punishment for me will be wondering every
day for the rest of my life what my life
would have been like if I would have just
been able to stay in the Air Force. Even
though this chapter in my life is most
likely over with I still have a lot of
ambition. I’d like to finish college and
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earn a bachelors [sic] degree in engineering
which is something that I’ve been wanting to
do ever since I was in high school. With
this degree, I wanted to try to receive a
commission[,] as an officer in the Air
Force[,] like my father. Please don’t
shatter these dreams by giving me a bad
conduct discharge. I want to continue
serving the Air Force, but if that is not
possible, please be fair and just.
Prior to closing argument by the prosecution and defense
counsel on sentencing, the military judge conducted a session
pursuant to Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000) to
review proposed instructions. The proposed instructions
included the following regarding Appellant’s unsworn statement:
In his unsworn statement, the accused made
reference to the possibility of an
administrative discharge. Although an
unsworn statement is an authorized means to
bring information to your attention, and
must be given the consideration it is due,
as a general evidentiary matter, information
about administrative discharges and the
procedures related thereto, are not
admissible in trials by courts-martial.
The issue concerning the possibility of the
administrative discharge of the accused is
not a matter before this court. This is
what we call a collateral matter. You
should not speculate about it. After due
consideration of the accused’s reference to
this matter, you are free, in your
discretion, to disregard the reference if
you see fit. This same caution applies to
any references made concerning this
information by counsel during arguments.
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During this session, the military judge asked counsel if
they had any objections or proposed revisions to the proposed
instructions. Counsel for both parties stated that they had no
objections or recommended additions.
In closing argument, defense counsel contended that a
punitive discharge would be disproportionate, that Appellant
possessed good rehabilitation potential, that the shame of a
federal conviction constituted significant punishment, and that
other punishment options were much more appropriate, such as
“taking stripes,” “restriction to base,” or “hard labor without
confinement.” Defense counsel made no mention of the
possibility of administrative discharge.
Following arguments by counsel, the military judge provided
the members with instructions on sentencing, which tracked the
instructions he previously reviewed with counsel. At the
conclusion of instructions, the military judge asked whether
either counsel objected to the instructions as given or wished
to request any additional instructions. Both counsel responded
in the negative.
III. DISCUSSION
In this appeal, Appellant contends that his right to give
an unsworn statement was impermissibly impaired by the reference
to administrative discharges in the military judge’s
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instructions. Such an issue is a question of law, which we
review de novo. United States v. Hibbard, 58 M.J. 71, 75
(C.A.A.F. 2003). In the absence of an objection, we review
deficiencies in the instruction for plain error. See United
States v. Glover, 50 M.J. 476, 478 (C.A.A.F. 1999).
In the present case, Appellant made a passing, vague
reference in his unsworn statement to the possibility that his
commander might initiate administrative discharge proceedings
against him. He did not specifically ask the members to take or
refrain from any specific action in light of his comment, and
defense counsel did not raise the subject of an administrative
discharge during closing argument. Under these circumstances,
we decline to speculate as to the message that Appellant was
intending to convey to the members through a reference to an
administrative discharge.
The military judge instructed the members that the subject
of an administrative discharge was a collateral matter, that
they should give that aspect of Appellant’s unsworn statement
due consideration, and that they had discretion to disregard the
reference to an administrative discharge if they saw fit to do
so. In view of Appellant’s unfocused, incidental reference to
an administrative discharge, the military judge did not err by
providing instructions that placed Appellant’s statement in the
appropriate context for purposes of their decision-making
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United States v. Tschip, No. 03-0024/AF
process. We need not decide whether the instructions provided
by the military judge would be appropriate in a case involving
different references to an administrative discharge. Under
facts of this case, the instructions by the military judge did
not constitute error, much less plain error. See Glover, 50
M.J. at 478.
IV. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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