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The Air Force CCA affirmed the findings and sentence in an unpublished opinion dated April 26, 2013, in which it considered numerous issues including factual and legal sufficiency, but it did not consider the issue before CAAF.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