United States v. Talkington , 73 M.J. 212 ( 2014 )

UNITED STATES, Appellee
v.
Korey J. TALKINGTON, Airman First Class
U.S. Air Force, Appellant
No. 13-0601
Crim. App. No. 37785
United States Court of Appeals for the Armed Forces
Argued December 17, 2013
Decided April 7, 2014
RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. BAKER, C.J., filed a separate opinion
concurring in the result, in which OHLSON, J., joined.
Counsel
For Appellant: Captain Thomas A. Smith (argued); Lieutenant
Colonel Jane E. Boomer and Captain Travis K. Ausland.
For Appellee: Captain Matthew J. Neil (argued); Colonel Don M.
Christensen; Lieutenant Colonel C. Taylor Smith and Gerald R.
Bruce, Esq. (on brief); Major Charles G. Warren.
Military Judge: Jefferson B. Brown
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Talkington, 13-0601/AF
Judge RYAN delivered the opinion of the Court.
We granted Appellant’s petition to review the following
issue:
WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE
MEMBERS THAT CONSIDERATION OF SEX OFFENDER
REGISTRATION IS “NOT A MATTER BEFORE THEM” AND
“FRAUGHT WITH PROBLEMS.”
Sex offender registration is a collateral consequence of
the conviction alone, not the sentence. While an accused may
raise a collateral consequence in an unsworn statement, United
States v. Rosato, 32 M.J. 93, 95-96 (C.M.A. 1991), our precedent
also makes clear that the military judge may instruct the
members essentially to disregard the collateral consequence in
arriving at an appropriate sentence for an accused. United
States v. Barrier, 61 M.J. 482, 485-86 (C.A.A.F. 2005); United
States v. Tschip, 58 M.J. 275, 277 (C.A.A.F. 2003). Because the
military judge took such action here, the decision of the United
States Air Force Court of Criminal Appeals (AFCCA) is affirmed.
I. FACTS
The facts relevant to the granted issue are few. Contrary
to his pleas, a general court-martial composed of officer and
enlisted members convicted Appellant of two specifications of
attempted aggravated sexual assault and one specification of
attempted abusive sexual contact, both in violation of Article
80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 8802
United States v. Talkington, 13-0601/AF
(2012). 1 The underlying facts were that Appellant touched the
victim’s breasts and penetrated her vagina while he believed
that she was sleeping, and thus substantially incapable of
declining participation. At the court-martial, in his unsworn
statement during sentencing, Appellant stated: “I will have to
register as a sex offender for life . . . I am not very sure
what sort of work I can find.”
The military judge instructed the members as follows on how
to make use of Appellant’s unsworn statement:
The court will not draw any adverse inference from the fact
that 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 must be given appropriate consideration.
The accused cannot be cross examined by the
prosecution or interrogated by court members or me upon an
unsworn statement, but the prosecution may offer evidence
to rebut statements of fact contained in it. The weight
and significance to be attached to an unsworn statement
rests within the sound discretion of each court member.
You may consider that the statement is not under oath, its
inherent probability or improbability, whether it is
supported or contradicted by evidence in the case, as well
as any other matter that may have a bearing upon 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.
The accused’s unsworn statement included the accused’s
personal belief that he would be administratively
discharged if he did not received [sic] a punitive
discharge and his belief that he would be required to
1
Consistent with his plea, the panel acquitted Appellant of a
charge of sodomy, in violation of Article 125, UCMJ, 10 U.S.C. §
925 (2012).
3
United States v. Talkington, 13-0601/AF
register as a sex offender. An unsworn statement is a
proper means to bring information to your attention, and
you must give it appropriate consideration. Your
deliberations should focus on an appropriate sentence for
the accused for the offense of which the accused stands
convicted.
However, as a general evidentiary matter, evidence
regarding possible registration as a sex offender or the
potential of an administrative discharge, and the
consequences thereof, would be characterized as a
collateral consequences [sic], and thus inadmissible
outside of the context of an unsworn statement. This is so
because your duty in sentencing is to adjudge an
appropriate sentence for this accused, under these facts,
in accordance with my instructions. Possible collateral
consequences of the sentence, beyond those upon which you
are instructed, should not be a part of your deliberations
other than as I have earlier discussed.
As to sex offender registration requirements, they may
differ between jurisdictions such that registration
requirements, and the consequences thereof, are not
necessarily predictable with any degree of accuracy. Even
if such requirements were predictable, whether or not the
accused will be or should be registered as a sex offender
and whether he will be or should be administratively
discharged is not a matter before you. Rather, determining
an appropriate sentence for this accused, in accordance
with my instructions, is your charge. In short, use of
this limited information is fraught with problems.
Therefore, after due consideration of the unsworn statement
and my prior instructions [on] the nature of an unsworn
statement, the consideration and weight you give the
reference is up to you in your sound discretion.
Appellant’s counsel objected to the military judge’s
proposed instruction related to sex offender registration on the
ground that its language:
goes beyond just a matter of letting the members know that
this is evidence only appropriate through an unsworn
statement or commentary in an unsworn statement and goes to
another level really insinuating to the members that they
should give it very little weight.
4
United States v. Talkington, 13-0601/AF
Defense counsel continued:
collateral matters that are brought up by the accused are
matters that may be considered and that’s in light of
[United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998),
which] mentions nothing regarding the military judge in any
regard trying to limit or dissuade them from paying
attention to what’s in the accused’s unsworn statement.
The military judge overruled the objection explaining, “The
court does not read [Grill] as broadly as you do.”
The maximum available sentence for Appellant’s convictions
was forty-seven years and a dishonorable discharge; trial
counsel argued for a sentence of not less than three years of
confinement and a dishonorable discharge. Manual for Courts-
Martial, pt. IV, paras. 4.e, 45.f(2), 45.f(5) (2008 ed.). The
members adjudged a sentence of confinement for eight months, a
bad-conduct discharge, forfeiture of all pay and allowances, and
reduction to E-1.
The AFCCA affirmed the findings and sentence as approved by
the convening authority. United States v. Talkington, No. ACM
37785, 2013 CCA LEXIS 357, at *27, 2013 WL 1858584, at *8 (A.F.
Ct. Crim. App. Apr. 26, 2013) (unpublished). On appeal to the
AFCCA, Appellant did not raise the issue granted by this Court.
II. DISCUSSION
The Court reviews a military judge’s sentencing
instructions for an abuse of discretion. Barrier, 61 M.J. at
485. In this context, a military judge abuses his discretion
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when the instructions are based on an erroneous view of the law
or are not tailored to the case’s facts and circumstances.
United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000);
United States v. Greaves, 46 M.J. 133, 139 (C.A.A.F. 1997).
Appellant argues that the military judge erred in his
instruction related to Appellant raising the prospect of sex
offender registration in his unsworn statement. In his view,
the military judge abused his discretion in instructing the
members that sex offender registration was irrelevant in
arriving at the sentence in his case for two reasons. First, he
asserts that consideration of sex offender registration during
sentencing is required by this Court’s holding in United States
v. Riley, 72 M.J. 115, 116-17 (C.A.A.F. 2013). Brief for
Appellant at 3-4, United States v. Talkington, 73 M.J. __
(C.A.A.F. 2014). Second, and relatedly, he asserts that sex
offender registration is similar to the impact of a punitive
discharge on retirement benefits, which the Court has deemed
akin to “a direct and proximate consequence of the sentence,”
United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988), so
that an instruction to the members to disregard it as a
collateral consequence was an abuse of discretion. We disagree.
The holding in Riley is inapposite in this separate
context, and the military judge’s instructions were not an abuse
of discretion under the precedent of this Court.
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A.
Rule for Courts-Martial (R.C.M.) 1001 permits the
presentation of matters in extenuation, mitigation, or rebuttal
by an accused through an unsworn statement. R.C.M. 1001(c).
Despite the limits of this rule, the Court has, on the one hand,
held that the right to present an unsworn statement is
“generally considered unrestricted.” Rosato, 32 M.J. at 96. On
the other hand, an unsworn statement “may be tempered by
appropriate instructions from the military judge.” Barrier, 61
M.J. at 484. This Court has explained that while the right of
allocution includes the right to present evidence that is not
relevant as extenuation, mitigation, or rebuttal, the military
judge may “put the information in proper context by effectively
advising the members to ignore it.” Id. at 486 (internal
quotation marks omitted).
A collateral consequence is “‘[a] penalty for committing a
crime, in addition to the penalties included in the criminal
sentence.’” United States v. Miller, 63 M.J. 452, 457 (C.A.A.F.
2006) (alteration in original) (quoting Black’s Law Dictionary
278 (8th ed. 2004) (citing as 1999 in original)), overruled in
part by Riley, 72 M.J. at 120-21. 2 “The general rule concerning
2
In contrast, a “[m]atter in extenuation of an offense serves to
explain the circumstances surrounding the commission of an
offense,” R.C.M. 1001(c)(1)(A), and a matter in mitigation is:
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collateral consequences is that ‘courts-martial [are] to concern
themselves with the appropriateness of a particular sentence for
an accused and his offense, without regard to the collateral
administrative effects of the penalty under consideration.’”
Griffin, 25 M.J. at 424 (alteration in original) (quoting United
States v. Quesinberry, 12 C.M.A. 609, 612, 31 C.M.R. 195, 198
(1962)). The collateral consequences of a court-martial do not
constitute R.C.M. 1001 material, and while they may be
referenced in an unsworn statement, Rosato, 32 M.J. at 96
(C.M.A. 1991) (finding error where a military judge precluded an
appellant from mentioning collateral consequences of a court-
martial –- a rehabilitation program -- in an unsworn statement),
they should not be considered for sentencing. United States v.
McNutt, 62 M.J. 16, 19-20 (C.A.A.F. 2005); see also Barrier, 61
M.J. at 486 (noting general preference for a “contextual
instruction” for matters raised in an unsworn statement “rather
introduced to lessen the punishment to be adjudged by the
court-martial, or to furnish grounds for a recommendation
of clemency. It includes the fact that nonjudicial
punishment under Article 15 has been imposed for an offense
growing out of the same act or omission that constitutes
the offense of which the accused has been found guilty,
particular acts of good conduct or bravery and evidence of
the reputation or record of the accused in the service for
efficiency, fidelity, subordination, temperance, courage,
or any other trait that is desirable in a servicemember.
R.C.M. 1001(c)(1)(B). All of the above examples of mitigation
focus on particular traits of the accused, or prior punishment.
8
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than outright preclusion”); Tschip, 58 M.J. at 277 (permitting
military judge to instruct that administrative discharge was a
collateral matter when referenced in unsworn statement and that
the members had discretion to disregard the reference to the
collateral matter); Griffin, 25 M.J. at 424 (citing Quesinberry,
12 C.M.A. at 612, 31 C.M.R. at 198).
This is both because the proper focus of sentencing is on
the offense and the character of the accused, R.C.M. 1001(b)-
(c), and “to prevent ‘the waters of the military sentencing
process’ from being ‘muddied’ by ‘an unending catalogue of
administrative information.’” Rosato, 32 M.J. at 96 (quoting
Quesinberry, 12 C.M.A. at 612, 31 C.M.R. at 198). 3
To be sure, there is a “tension between the scope of pre-
sentencing unsworn statements and the military judge’s
obligation to provide proper instructions.” Barrier, 61 M.J. at
487 (Erdmann, J., concurring in the result). However, Appellant
does not take issue with this precedent or ask us to overrule
it. Instead he argues that sex offender registration is not a
collateral consequence and, therefore, the precedent that
3
Sex offender registration directly implicates these concerns of
“minitrials” and “muddied waters” because the requirements for
sex offender registration are not “precise” and “[e]ach state
has different rules as to when registration is required and how
compliance is monitored and measured,” which make it difficult
for members to make an informed decision. United States v.
Datavs, 70 M.J. 595, 604 (A.F. Ct. Crim. App. 2011), aff’d on
other grounds, 71 M.J. 420, 422, 426 (C.A.A.F. 2012).
9
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recognizes a military judge’s discretion to put collateral
consequences in a proper context does not apply in this case.
B.
Appellant argues that after this Court’s recent Riley
decision, sex offender status is no longer a collateral
consequence for any purpose. Riley is not so broad. In Riley,
the trial defense counsel and the military judge did not inform
the appellant that pleading guilty to kidnapping of a child
would subject her to registration as a “sex offender,” and this
Court held that “in the context of a guilty plea inquiry, sex
offender registration consequences can no longer be deemed a
collateral consequence of the plea.” Riley, 72 M.J. at 121.
Riley, however, was a guilty plea case in which we sought
to apply the reasoning of Padilla v. Kentucky, 559 U.S. 356(2010), to the different fact of sex offender registration. 72
M.J. at 121. Consequently, we considered the providence of a
guilty plea where neither the defense counsel nor the military
judge informed the defendant that pleading guilty would require
sex offender registration. Riley, 72 M.J. at 118-19. We
concluded that it was not a provident plea, and emphasized the
requirement to ensure a “plea was a ‘knowing, intelligent act[]
done with sufficient awareness of the relevant circumstances and
likely consequences.’” Id. at 122 (alteration in original)
(quoting Brady v. United States, 397 U.S. 742, 748 (1970)).
10
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Appellant now asks us to extend the Riley rationale to
sentencing and prohibit a military judge from informing the
members that they need not consider sex offender registration in
arriving at a sentence. We decline this invitation for two
reasons. First, unlike the context of a plea inquiry, nothing
about the sentence has any impact on the requirement or duty to
register as a sex offender. Sex offender registration operates
independently of the sentence adjudged and remains a collateral
consequence. See, e.g., 42 U.S.C. § 16911 (2012) (defining sex
offender categories by the fact of conviction and the length of
corresponding maximum sentences available, and not the sentences
imposed); cf. United States v. Pena, 64 M.J. 259, 265 (C.A.A.F.
2007) (“[T]he collateral administrative consequences of a
sentence, such as early release programs, do not constitute
punishment for purposes of the criminal law.”).
Moreover, and despite Appellant’s arguments to the
contrary, sex offender registration is markedly different than
retirement benefits, which can directly be affected by the
imposition of a punitive discharge -- loss of military
retirement benefits is one possible result of the sentence
itself, as opposed to the conviction. See, e.g., Griffin, 25
M.J. at 424 (“[I]t is only in a theoretical sense that the
effect a punitive discharge has on retirement benefits can be
labeled collateral. . . . [T]he impact on benefits -- whatever
11
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it may be -- can only be a direct and proximate consequence of
the sentence.”); see also Greaves, 46 M.J. at 139 (“[W]here a
servicemember is perilously close to retirement . . . a general
collateral-consequences instruction disregarding the effects of
a punitive discharge on retirement will not suffice.”). Thus,
unlike the loss of retirement benefits, which would be a direct
consequence of the imposition of a punitive discharge, there is
no causal relation between the sentence imposed and the sex
offender registration requirement. Whether Appellant received
no punishment or the maximum available punishment he would be
required to register as a sex offender based on the fact of his
conviction alone.
Second, even after Padilla v. Kentucky, which considered
the question whether it was ineffective assistance of counsel
not to inform an accused of the deportation consequences of a
guilty plea, a case whose reasoning we relied upon in Riley, 72
M.J. at 119-21, the Supreme Court continues to categorize sex
offender registration as a collateral consequence. Chaidez v.
United States, 133 S. Ct. 1103, 1108 n.5 (2013) (stating that
the “effects of a conviction commonly viewed as collateral
include . . . sex offender registration”). While this has no
bearing on our treatment of sex offender registration in the
context of determining the providence of a guilty plea within
the military justice system, we have been presented with no
12
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unique military reason to extend the reasoning of Padilla or
Riley further. In the context of sentencing, Miller remains
good law to the extent it recognizes that “the requirement that
Appellant register as a sexual offender is a consequence of his
conviction that is separate and distinct from the court-martial
process.” Miller, 63 M.J. at 457.
C.
While Riley altered this Court’s treatment of sex offender
registration in the context of the providence of a guilty plea,
it did not alter this Court’s definition of a collateral
consequence, and sex offender registration remains one outside
the context of a guilty plea inquiry. See, e.g., United States
v. Lindsey, No. ACM 37894, 2013 CCA LEXIS 503, at *16-*17, 2013
WL 3353908, at *5 (A.F. Ct. Crim. App. June 18, 2013)
(unpublished) (distinguishing Riley’s conclusion that sex
offender registration is not a collateral consequence in a
guilty plea context from collateral consequences at sentencing).
Consequently, Appellant was permitted to mention sex
offender registration in his unsworn statement. See Duncan, 53
M.J. at 499; Rosato, 32 M.J. at 96; see also United States v.
Macias, 53 M.J. 728, 732 (A. Ct. Crim. App. 1999) (concluding
that a military judge abused her discretion when she failed to
permit the accused to mention in an unsworn statement that the
accused may have to register as sex offender for a non-sex
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offense crime). In turn, the military judge had discretion to
“temper[]” the unsworn statement with “appropriate
instructions.” Barrier, 61 M.J. at 484. “While the military
judge’s discretion in choosing whether to instruct upon such
‘collateral’ matters is broad, he or she is required to give
legally correct instructions that are tailored to the facts and
circumstances of the case.” Duncan, 53 M.J. at 499.
Relevant to the arguments raised on appeal, nothing in the
instructions complained of was an inaccurate statement of either
the law or the facts. Our precedent authorized the military
judge to place the sex offender registration mentioned during
Appellant’s unsworn statement in its proper context, by
informing the members that Appellant was permitted to address
sex offender registration in his unsworn statement, while also
informing them that possible collateral consequences should not
be part of their deliberations in arriving at a sentence. See
Barrier, 61 M.J. at 485-86; Rosato, 32 M.J. at 96. Accordingly,
the military judge did not abuse his discretion.
III. DECISION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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BAKER, Chief Judge, with whom OHLSON, Judge, joins
(concurring in the result):
Like the consequence of deportation, sex offender
registration is not a criminal sanction, but it is a
particularly severe penalty. . . . Moreover, sex
offender registration is intimately related to the
criminal process. The automatic result of sex
offender registration for certain defendants makes it
difficult to divorce the penalty from the conviction.
United States v. Riley, 72 M.J. 115, 120-21 (C.A.A.F. 2013)
(internal quotation marks omitted). Appendix 4 to Enclosure 2
of Department of Defense Instruction 1325.07 1 makes this point
clearly and emphatically:
A Service member who is convicted in a general or
special court-martial of any of the offenses listed in
Table 4, must register with the appropriate
authorities in the jurisdiction . . . in which he or
she will reside, work, or attend school upon leaving
confinement, or upon conviction if not confined.
Emphasis added. Indeed, sex offender registration is required
in all fifty states. 2 Sex offender registration also addresses
at least four of the recognized purposes of sentencing:
1
See Dep’t of Defense, Instr. 1325.07, Administration of
Military Correctional Facilities and Clemency and Parole
Authority app. 4 Enclosure 2 (Mar. 11, 2013) [hereinafter Dep’t
of Defense Instr. 1325.07].
2
The Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act (the Wetterling Act) required
all states to implement a sex offender and crimes against
children registry. Pub L. No. 103-322, 108 Stat. 2038 (1994)
(codified as amended at 42 U.S.C. § 14071 (2006)), repealed by
Sex Offender Registration and Notification Act, Pub. L. No. 109-
248 § 129, 120 Stat. 587, 600 (2006). It was enacted as part of
the Federal Violent Crime Control and Law Enforcement Act of
1994. Id.United States v. Talkington, No. 13-0601/AF
rehabilitation of the wrongdoer, punishment of the wrongdoer,
protection of society and preservation of good order and
discipline. 3 Furthermore, it may be the most significantly
stigmatizing and longest lasting effect arising from the fact of
conviction. Therefore, in my view, it is not good enough to
call it collateral and leave it to the members to sort out what
to make of it based on their own perceived, received, and often
erroneous understanding of registration. A tailored and
appropriate instruction is required. The question raised in
this case is how, if at all, should a military judge instruct on
the subject in the context of an unsworn statement.
At present, military judges are left to instruct their way
through and around the rocks and shoals of inconsistent case law
and ambiguous rules. On the one hand, members must give due
consideration to an accused’s unsworn statement, which in this
case made reference to sex offender registration. Moreover,
because sex offender registration is addressed to the purposes
of sentencing, in many cases it is also appropriate as
mitigation, and potentially as rebuttal. The right to present
an unsworn statement is “generally considered unrestricted.”
United States v. Rosato, 32 M.J. 93, 96 (C.M.A. 1991). On the
other hand, as the Court highlights, sex offender registration
is a collateral consequence of conviction rather than a
3
See United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989).
2
United States v. Talkington, No. 13-0601/AF
consequence of sentencing. 4 United States v. Talkington, __ M.J.
__, __ (2) (C.A.A.F. 2014). This results in the Court’s
conclusion that sex offender registration is collateral and thus
inadmissible, and should not be part of their deliberations.
Id. at __ (14).
I would conclude instead that a tailored instruction is
warranted, which recognizes the role of the unsworn statement,
the fact that registration is intimately related to the criminal
process, as well as the fact that sex offender registration is
not in fact a sentence imposed at court-martial. The military
judge tried to thread this needle. The military judge made a
genuine effort to distinguish the reference to sex offender
registration contained in the unsworn statement from evidence
regarding possible registration as a sex offender. However,
this is a legal subtlety likely lost on the lay members of the
court-martial. The result was a confusing, if not an
inconsistent and contradictory instruction. The members were
instructed that “[t]he weight and significance to be attached to
an unsworn statement rests within the sound discretion of each
court member” and that “you must give it [the unsworn statement]
appropriate consideration,” while also being instructed that
4
Therefore, I agree with the Court that Riley, which addressed
the providence of a guilty plea, does not stand for the
proposition that sex offender status is no longer a collateral
consequence for any purpose. Talkington, __ M.J. at __ (10).
3
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“whether or not the accused will be or should be registered . .
. is not a matter before you” and that “use of this limited
information is fraught with problems.” This may have
unintentionally signaled the members that notwithstanding his
previous instruction, they really ought to ignore the reference
contained in the unsworn statement altogether. As a result, I
would conclude that the instruction was internally inconsistent
and confusing and therefore erroneous.
In my view, and as recognized in Riley and Dep’t of Defense
Instr. 1325.07, sex offender registration is integral to the
penalty landscape for certain sexual offenses. Therefore, an
accused should be able to refer to sex offender registration in
an unsworn statement with an accompanying instruction at least
to the extent that the Dep’t of Defense Instr. 1325.07 addresses
the issue. For example, a military judge might make the
following instructional references:
Under DOD Instructions, when convicted of certain offenses,
including the offenses here, the accused must register as a
sex offender with the appropriate authorities in the
jurisdiction in which he resides, works, or goes to school.
Sex offender registration is required in all fifty states;
however, sex offense registration requirements may differ
between jurisdictions. As a result, the registration
requirements and the consequences of doing so are not
necessarily predictable.
Sex offense registration is a consequence of conviction;
however, it is not a sentence adjudged at court-martial.
4
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Thus, while the consideration and weight you give the
reference in Appellant’s unsworn statement to sex offender
registration is up to you and in your discretion, your duty
is to determine the criminal sentence to adjudge in this
case, if any, for the offenses for which the accused has
been found guilty.
This approach avoids the dilemma faced by the military judge in
this case of trying to navigate the accused’s right to make an
unsworn statement about a collateral matter that is nonetheless
a direct consequence of conviction. As importantly, it prevents
the members from applying their own diverse understandings of
the sex offender registration requirement.
Having found instructional error, I nonetheless concur in
the result. The maximum authorized sentence for Appellant’s
convictions included forty-seven years of confinement and a
dishonorable discharge. The Government argued for a sentence of
not less than three years of confinement and a dishonorable
discharge. Manual for Courts-Martial, United States pt. IV,
paras. 4.e, 45.f(2), 45.f(5) (2008 ed.) (MCM). The members
adjudged eight months of confinement, a bad-conduct discharge,
forfeiture of all pay and allowances, and reduction to E-1.
Thus, Appellant has not demonstrated sentencing prejudice from
any confusion generated by the instruction in this case.
Moreover, as the military judge noted, Appellant in fact never
did offer evidence that he would have to register under Dep’t of
5
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Defense Instr. 1325.07 or relevant state law. Therefore,
Appellant was not prejudiced on sentencing and I would affirm.
6