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The Air Force CCA affirmed the findings and sentence in an unpublished opinion dated April 26, 2013, in which it considered numerous issues including factual and legal sufficiency, but it did not consider the issue before CAAF.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.

Appellant’s short brief boldly asks CAAF to extend its decision last term in United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (link to slip op.) (CAAFlog case page), where the court found that the military judge abused his discretion by accepting that appellant’s guilty plea to a kidnapping charge without ensuring that she was aware of the consequence that she would have to register as a sex offender. Appellant’s desired extension of that case would “make clear that sex offender registration is a direct consequence of the conviction, which the members should consider in sentencing.” App. Br. at 5. Appellant analogizes this to the requirement of United States v. Boyd, 55 M.J. 217 (C.A.A.F. 2001) (link to slip op.), that military judges instruct on the impact of a punitive discharge on retirements benefits. His brief also argues that the instruction given in his case improperly restricted his right to make an unsworn statement.

The Government’s response is compelling in a number of respects. First, it distinguishes Riley as a guilty plea case, where that appellant’s lack of knowledge of the consequences of registration for her kidnapping offense undercut the providence of her plea. That was a findings issue, Talkington involves a sentencing issue, and the Government explains that “Appellant’s argument improperly merges the concepts of collateral consequences to a plea and collateral issues to a sentence.” Gov’t Br. at 7.

Next, the Government distinguishes Boyd and the retirement benefits issue as “defined and quantifiable with specific accuracy,” unlike sex offender registration requirements that “are governed by the various states.” Gov’t Br. at 8. And while this could be addressed at trial with evidence of the place when an accused intends to live, the Government’s brief makes the more fundamental point that the consequence of loss of retirement benefits follows the sentence of a punitive discharge, while the consequence of sex offender registration follows “the conviction itself, regardless of what sentence is adjudged.” Gov’t Br. at 9.

Finally, the Government argues that sex offender registration is not a matter in extenuation at all. Gov’t Br. at 10.

Appellant is going to have a hard time refuting the Government’s straightforward arguments on these points without resorting to equitable or policy-based principles, but the Government’s brief suffers a significant breakdown in the end:

Even if this Court somehow concludes that the military judge abused his discretion, the error did not have a substantial influence on the sentence. There is no evidence members sentenced Appellant to a longer period of confinement or a punitive discharge than they otherwise would have. Beyond rank speculation, Appellant is able to provide no argument aside from a blanket statement that “the military judge’s erroneous instructions had a substantial influence on Appellant’s sentence.” (App. Br. at 8.)

Gov’t Br. at 10-11. As with practically all errors, even if CAAF finds the military judge’s instruction erroneous it could still deny relief to Appellant by finding the error harmless. That would occur if CAAF finds that the instruction had no “substantial influence on the sentence.” Boyd, 55 M.J. at 221. But if the instruction was error, the error was preserved by the Defense objection. So the burden is on the Government to prove harmlessness, not on Appellant to prove prejudice. Only if the Defense failed to object would Appellant have the burden to show prejudice (under the plain error test).

Why the Government would try to shift this burden to Appellant is unknown, but there are some clues in this language from the Government’s brief:

Appellant’s egregious crimes are an affront to basic humanity. He victimized CLG, a dependent of a military member and someone who called Appellant a friend, with the specific intent to commit the offense of aggravated sexual assault.

Gov’t Br. at 11 (emphasis added). And,

The maximum sentence for his crimes included a possible 47 years of confinement and a dishonorable discharge, and trial counsel argued for 3 years of confinement and a dishonorable discharge. (JA at 51.) The members sentenced Appellant to only 8 months of confinement and a bad conduct discharge. (JA at 17.) There is absolutely no reason to believe this richly deserved sentence was affected by anything besides the Appellant’s own depraved crimes and the evidence presented at trial.

Gov’t Br. at 11-12 (emphasis added).

Earlier this week I discussed CAAF’s opinion in United States v. Warner, No. 13-0435/AR, __ M.J. __  (link to slip op.) (CAAFlog case page), as a rejection of “prosecutorial crusading.” Perhaps during next week’s oral argument, one of the judges from the Warner majority will ask the Government counsel about the Government’s burden to show harmlessness, and about whether counsel’s personal opinion of Appellant’s crimes as “egregious” and “an affront to basic humanity,” and his sentence as “richly deserved,” are even the slightest bit relevant to CAAF’s consideration of this case.

Case Links:
AFCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument Preview

13 Responses to “Argument Preview: United States v. Talkington, No. 13-0601/AF”

  1. Caveman says:

    Are the registration requirments and consequences thereof really that unpredictable in the wake of SORNA?

  2. RKincaid3 says:

    Most people would find the the burden of carrying the “Scarlet Letter” of sex offender status much more onerous and stigmatizing than the label “convict.”  One can put a conviction behind them, at least to the point that it is part of their past except on paper or in a government database online.  With the “Scarlet Letter” requirement, it is ever present, on one’s door in letters just so big and in one’s yard and on the internet, making them subject to public hounding nearly equaling exile from a community.  Perhaps this case will lead to a clarification of when such a requirement is proper, although I doubt it.SORNA seems clear enough…especially since the SCOTUS addressed it last term in United States v. Kebodeaux, 133 S. Ct. 2496 (7-2 decision).  Keboudeax appears to be an intellectually dishonest decision since it was based upon the Congress’s authority to “make Rules for the … Regulation of the land and naval Forces” and the “necessary and proper” clause.  How is someone no longer in the military legitimately subject to the Congress’s “Regulation of the land and naval Forces?”  The dissent in that case had the more intellectually and legally honest, if not politically unpopular, opinions.  Thomas’s dissent also has an interesting discussion on the punitive effects of sex offender registration requirements and, in the military context, on their ex post facto status when imposed outside the military.  Sex offender status should be a part of the sentencing process, not the result of a conviction alone.  It should be fact based and tailored to each case.True sex offenders (not ALL the ones carrying the lable…as only some of them that deserve the lable), being the cruel and pitiful creatures that they are, have become the one type of defendant for whom no one (politician, judge or civil rights activist or other) wants to stand up.   As a result, the country is willing to overlook basic legal concepts and legal history, not to mention legal principle, (read both dissents in Kebodeaux for that history, those concepts and principles) in order to get the result they want …and who will argue in defense of or advocate sympathy for someone branded with the newest Scarlet Letter?  Remember Martin Niemoller’s warning about Nazi Germany? No matter how unsympathetic a person is, or how horrific their offenses, or how unpopular, they deserve the same protection and consideration as any other member of a so-called civilized society.

  3. Christian Deichert says:

    Both federal conviction and sex offender registration are collateral consequences, not punishment, and are not relevant to sentencing considerations.  This is nothing new.  And if the defense wants to sneak it into the unsworn statement (or, as I like to think of it, the time in the trial when the circus comes to town), they should be prepared for an instruction limiting its effect. On the other hand, perhaps we can make a deal.  The defense can argue those collateral consequences, and the government can argue the collateral consequence that Soldiers will not be “sent back to the unit” if the panel gives 4+ months confinement and no discharge — they will end up here at Fort Sill in the Personnel Control Facility, and we will initiate separation.  Think the court will buy it?

  4. RKincaid3 says:

    Doubt it.  The PCFs mission is to “accomplish the expeditious and proper disposition, either administrative or judicial, of the following categories of personnel: Army Deserter, Army correctional facilities inmates, personnel who have received a BCD, DD, or a dismissal and are on excess leave pending completion of the appellated process, parole violaters, and Army personnel confined by civil authorities.”  How does a convicted Soldier recieving four+ months confinement and no discharge fit into any of the PCFs authorized categories?  Methinks that is apples and oranges.

  5. Charlie Gittins says:

    Sex offender registration is not a “collateral consequence of conviction.”  It is a direct consequence of conviction of an offense listed in the DoDI governing sex offender registration.  “Shall be reported”  “shall have DNA sample collected” etc., etc.  I have been successful in the past having the MJ take judicial notice of the provisions of that order in sentencing.  And, then I have had my client talk about those direct consequences in his Unsworn.  The MJ’s instruction isn’t the only possible instruction; good defense counsel will offer alternatives consistent with the law, regulation and their experience; and, if the instruction is consistent with the law, it should be given.  No reason not to challenge the MJ when he/she creates an unfavorable instruction that is not a complete or full explication of the issue.    

  6. Bill Cassara says:

    By that logic, an accused should not be able to say that his wife left him or that he has been removed from his job for 8 months pending trial, as all of those are “collateral.”   SOR is a direct consequence of being convicted under 120, and the accused should be allowed to educate the panel of such.

  7. SFC V says:

    SOR is a collateral consequence, IMHO, because it is not in the sentence of the court. The Supreme Court has held SOR to be non-punitive.  The requirement to register can change and individuals can be required to register for convictions occurring before the enactment of registration statutes.  (some state courts have held differently in interpreting state constitutional provisions)      The court has no authority to require or not require registration.  The court does not know what the law will be years from now with respect to registration.  If a panel is allowed to consider it and then the law changes so that he doesn’t have to register do we get to go back and resentence him so that he gets an appropriate sentence?  The fact that collateral consequences change over time is a problem when allowing them to be argued on sentencing.  I think prospective collateral consequences are distinctly different from collateral consequences that have actually occurred. (wife left him, removed from job for 8 months, etc.)      

  8. Boogar says:

    I see a good point here, which is that the accused should be allowed to argue that potential sex offender registration will be an impact based on the conviction.  This is the same as pointing out that the accused has a federal conviction.  Though the registration requirement may depend on where the accused lives, the fact that this registration requirement will apply anywhere is probably sufficient because the accused may want to live in one of those places or decide to live somewhere else due to this factor, thus be denied the preferred location of residency.  Practically, the registration requirement will apply everywhere and there will be no place to hide.  This is actually a good thing because it is for protection of society.  I do not want to know who the kiddie didlers are to harass them, but rather to stay away from them and ensure my daughter is protected.  You should also not buy a home near one because the value will go down, or perhaps you can get a good deal on property due to it and encourage the registered offender to leave and reap the profit on the flip.  That aside, this registration requirement is worth consideration.  If I were sentencing as a MJ or panel member, I would consider this in sentencing for the lower end of the spectrum.  For rape, sexual assaults, and crimes against children there would be a lengthy prison sentence anyway, so registration is not much of a factor.  When an accused has a sentence of less than ten years, the sex offender stigma will soon be an integral part of their life.  I imagine they cannot keep a job with their picture on the internet and everyone checks their neighbor hood for sex offenders in the area.  When buying a home, everyone checks the registry and does not buy a home near one of these creeps.  We ought to quarantine them somewhere, perhaps a coal mine where they can work to earn money and stay away.  Or perhaps the Navy would find a place for them and keep them on a ship.  There are also plenty of women on the registry, perhaps the men and women on the registry could find a way to meet up. 

  9. RKincaid3 says:

    we get to go back and resentence him so that he gets an appropriate
    sentence?”  So a sentence is only appropriate in a sex offense case
    if it includes a SOR consequence?  Regardless of how of why a SOR is
    imposed, make no mistake, that Scarlet Letter is punishment in and of
    itself…arguably worse than the conviction itself.  As such, whatever
    happened to tailoring the punishment to the individual offender?  Are we discussing a justice system or a retribution system here?

  10. Defense Hack says:

    Sex Offender registration is completely predictable in all but the most esoteric of crimes, such as Florida’s Double-Inchoate “attempted solicitation,” or maybe some of the new 120c, and maybe, just maybe, some states may define “lewd act” less liberally. But, unless this is your first day emplyed as a lawyer, you can accurately predict that a crime involving sex is a SOR crime.

  11. CHarlie Gittins says:

    There is DoD reg that lists the offenses for which registration is mandatory.  If convicted of X, then registration required.  That is not collateral — it is mandated by regulation any time there is a conviction of one of the listed X’s.

  12. stewie says:

    Of course it is predictable and the idea that retirement isn’t collateral but immigration and SO registration are is pretty darn selective.We know for the big ones like in this case that SO registration is happening.  We may not know whether it’s for 25 years in this state or 15 in that state or life in this state but it’s happening.  If the government wants to argue that it differs from state to state they can do that.  If they want to put on evidence that for example the accused’s home of record actually doesn’t require SO registration they can do that on rebuttal.

  13. some TC says:

    Defense Hack: that’s not entirely true, for instance the recent case involving a guilty plea to kidnapping, which requires sex offender registration (at least in some states). For a real brain-buster, try and figure out if all that dealing to get your client a SCM had any affect on sex offender registration. And is it reasonable to believe that a military defense counsel is going to be educated on the sex offender registration laws of all 50 states? There is no area more fraught with peril for the accused and less understood by your average defense counsel than sex offender registration.