CAAF decided the Air Force case of United States v. Talkington, No. 13-0601/AF, 73 M.J. 212 (CAAFlog case page) (link to slip op.), on Monday, April 7, 2014, finding that “sex offender registration is a collateral consequence of the conviction alone, not the sentence,” and that “while an accused may raise a collateral consequence in an unsworn statement . . . the military judge may instruct the members essentially to disregard the collateral consequence in arriving at an appropriate sentence for an accused.” Slip op. at 2. CAAF affirms the sentence and the decision of the Air Force CCA.
Judge Ryan writes for the court, joined by Judges Erdmann and Stucky. Chief Judge Baker concurs in the result, joined by Judge Ohlson.
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.
Appellant made an unsworn statement during the sentencing phase of the court-martial in which he stated, “I will have to register as a sex offender for life . . . I am not very sure what sort of work I can find.” Slip op. at 3. The Government then asked the military judge to instruct the members to disregard the possibility of sex offender registration when determining a sentence. Over Defense objection, the judge gave a lengthy instruction to the members that included:
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. . . . 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 . . . [e]ven 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.
Slip op. at 4. The Air Force CCA affirmed the convictions without considering the propriety of this instruction, and CAAF granted review of one 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.”
Judge Ryan’s opinion of the court can be summarized in one powerful sentence:
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, they should not be considered for sentencing.
Slip op. at 8 (citation omitted). This is, to say the least, a dramatic victory for the Government.