CAAF will hear oral argument in the Air Force case of United States v. Talkington, No. 13-0601/AF (CAAFlog case page), on Tuesday, December 17, 2013. The court will consider a single 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.”
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of three attempts in violation of Article 80, UCMJ: two specifications of attempted aggravated sexual assault and one specification of attempted abusive sexual contact. He was sentenced to reduction to E-1, total forfeitures, confinement for eight months, and a bad-conduct discharge.
The case arose after Appellant had sex with a female friend, CLG. She fell asleep in Appellant’s bed, but awoke when Appellant undressed her, touched her body, digitally penetrated her vagina, performed oral sex on her, and then had sex with her. Appellant then redressed CLG and left the room. CLG was fully conscious while this occurred, but she pretended to be asleep the entire time. CLG later reported the encounter to her boyfriend and then to the Air Force Office of Special Investigations. Appellant was interviewed, confessed, and then convicted of the attempts at trial.
The Air Force CCA affirmed the findings and sentence in an unpublished opinion dated April 26, 2013, in which it considered numerous issues including factual and legal sufficiency, but it did not consider the issue before CAAF.
Appellant made an unsworn statement during the sentencing phase of the court-martial in which he stated, “I understand that I will have to register as a sex offender for life and with this federal conviction I am not very sure what sort of work I can find.” App. Br. at 2. The Government then asked the military judge to instruct the members to not consider the possibility of sex offender registration. Over Defense objection the judge gave a lengthy instruction to the members that included:
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 the nature of the unsworn statement, the consideration and weight you give the reference is up to you in your sound discretion.
Gov’t Br. at 5-6.