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.
In an opinion rich in citations and quotations from precedent, Judge Ryan explains that while Appellant asked the court to extend its decision in United States v. Riley, 72 M.J. 115 (C.A.A.F. 2013) (CAAFlog case page) (finding that the military judge abused his discretion by accepting the Appellant’s guilty plea without ensuring that she was aware of the consequence that she would have to register as a sex offender), to hold that sex offender status is not a collateral consequence for any purpose, the fact is that “Riley is not so broad.” Slip op. at 10. Rather, two reasons prevent the expansion of Riley to sentencing. First:
[U]nlike 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.
Slip op. at 11. And second:
[T]he Supreme Court continues to categorize sex offender registration as a collateral consequence. . . . 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.
Slip op. at 12-13. The discussion of United States v. Miller, 63 M.J. 452, 457 (C.A.A.F. 2006) (affirming guilty plea to possession of child pornography despite an absence of warnings about sex offender registration), as good law is somewhat interesting, considering that Riley overruled the relevant conclusion in Miller. But Judge Ryan concludes:
Appellant was permitted to mention sex offender registration in his unsworn statement. In turn, the military judge had discretion to temper the unsworn statement with appropriate instructions.
Slip op. at 13-14 (marks and citations omitted). In this case, appropriate instructions included “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.” Slip op. at 14.
But Chief Judge Baker and Judge Ohlson disagree, finding that the judge’s instruction was error but that this error did not prejudice Appellant. The Chief Judge’s concurring opinion begins by noting that sex offender registration “may be the most significantly stigmatizing and longest lasting effect arising from the fact of conviction.” Con. op. at 2. He then focuses on the difficulty in addressing this significant consequence of a conviction:
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. On the other hand, as the Court highlights, sex offender registration is a collateral consequence of conviction rather than a consequence of sentencing. This results in the Court’s conclusion that sex offender registration is collateral and thus inadmissible, and should not be part of their deliberations.
Con. op. at 2-3 (marks and citations omitted). But contrary to the majority, Chief Judge Baker concludes:
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.
Con. op. at 4. But he concludes that “Appellant has not demonstrated sentencing prejudice from any confusion generated by the instruction in this case.” Con. op. at 5. Though, it does seem that this analysis is reversed. This error was preserved by the Defense objections, so it must have been the Government that demonstrated its harmlessness…