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19. Sentencing and Credit

Chapter 19

Sentencing & Credit

 

  1.       Overview.  R.C.M. 1001(a)(1)

  2.       The Government’s Case.  R.C.M. 1001(b)

  3.       The Defense Case.  R.C.M. 1001(c)/R.C.M. 1001(d)

  4.       Statements by the Victim.  R.C.M. 1001A/R.C.M. 1001(c)

  5.       Sentencing Determination. R.C.M. 1002

  6.       Permissible Punishments.  R.C.M. 1003

  7.       Instructions.  R.C.M. 1005

  8.       Sentence Credit 

  9.       Deliberations.  R.C.M. 1006

  10.       Announcement of Sentence. R.C.M. 1007

  11.       Impeachment of Sentence.  R.C.M. 1008

  12.       Reconsideration of Sentence.  R.C.M. 1009

 

I.      OVERVIEW.  R.C.M. 1001(a)(1)

A.     Matters to be presented by the government.  R.C.M. 1001(b).  Counsel may present:

1.                   Service data relating to the accused from the charge sheet.

2.                   Personnel records reflecting the character of the accused’s prior service.

3.                   Prior convictions.

4.                   Circumstances directly relating to or resulting from the offense(s).

5.                   Opinion evidence regarding past duty performance and rehabilitative potential.

B.      Victim impact statement.  R.C.M. 1001A (under the MJA 2016, R.C.M. 1001A will disappear as a standalone rule and be merged into R.C.M. 1001 to become the new R.C.M. 1001(c))

C.      Defense counsel presents the case in extenuation and mitigation.  R.C.M. 1001(c). (under the MJA 2016 this will become R.C.M. 1001(d))

D.     Rebuttal and surrebuttal.  R.C.M. 1001(d). (under the MJA 2016 this will become R.C.M. 1001(e))

E.      Additional matters.  R.C.M. 1001(f). (under the MJA 2016 this will become R.C.M. 1001(g))

F.      Arguments.  R.C.M. 1001(g). (under the MJA 2016 this will become R.C.M. 1001(h))

G.     Rebuttal argument at MJ’s discretion.  R.C.M. 1001(a)(1)(F). (under the MJA 2016 this will become R.C.M. 1001(a)(1)(G))

II.   THE GOVERNMENT’S CASE.  R.C.M. 1001(b)

A.     Service data relating to the accused taken from the charge sheet. R.C.M. 1001(b)(1).

1.                   Name, rank and unit or organization.

2.                   Pay per month.

3.                   Current service (initial date and term).

4.                   Nature of restraint and date imposed. 

5.                   Note:  Personal data is ALWAYS subject to change and should be verified PRIOR to trial and announcement by counsel in open court.  Consider promotions, reductions, time-in-grade pay raises, calendar year pay changes, pretrial restraint, etc.

B.      Personnel records reflecting character of prior service. R.C.M. 1001(b)(2).

1.                   Under regulations of the Secretary concerned, trial counsel may obtain and introduce from the personnel records of the accused evidence of . . . character of prior service” (emphasis added). These records may include personnel records contained in the Official Military Personnel File (OMPF) or located elsewhere, unless prohibited by law or other regulation. Army Regulation (AR) 27-10, para. 5-29a (11 May 2016) implements R.C.M. 1001(b)(2).

2.                   AR 27-10, para. 5-29a (11 May 2016) illustrates, in a non-exclusive manner, those items qualifying for admissibility under R.C.M. 1001(b)(2) and (d).

3.                   Personnel records are NOT limited to matters contained in a service member’s Military Personnel Records Jacket (MPRJ), OMPF or Career Management Information File (CMIF).  AR 27-10, para. 5-29a (11 May 2016).  The key is whether the record is maintained IAW applicable departmental regulations.

a)   United States v. Fontenot, 29 M.J. 244 (C.M.A. 1989). Handwritten statements attached to appellant’s DD Form 508s (Report of/or Recommendation for Disciplinary Action) made during the appellant’s pretrial confinement not admissible under R.C.M. 1001(b)(2). The miscellaneous pieces of paper that accompanied the DD 508s were not provided for in the applicable departmental regulation, AR 190-47. The Court of Military Appeals (CMA) did not decide whether the DD 508s themselves were admissible. Id. at 248 n.2.

b)   United States v. Ariail, 48 M.J. 285 (1998). National Agency Questionnaire, DD Form 398-2, completed by accused and showing history of traffic offenses, was admissible under R.C.M. 1001(b)(2), where it did not meet admission criteria under R.C.M. 1001(b)(3) [prior conviction].

c)   United States v. Douglas, III, 57 M.J. 270 (2002). A stipulation of fact from a prior court-martial as evidence of a prior conviction was properly admissible under R.C.M. 1001(b)(2) not R.C.M. 1001(b)(3) as part of a personnel record.    

d)   United States v. Lane, 48 M.J. 851 (A.F. Ct. Crim. App. 1998).  AF Form 2098 (reflecting the current AWOL status of the accused who was tried in absentia) was admissible pursuant to R.C.M. 1001(b)(2). 

e)   United States v. Reyes, 63 M.J. 265 (2006).  During the sentencing phase, the trial counsel offered into evidence Prosecution Exhibit (PE) 6, which was represented to be “excerpts” from Reyes’s Service Record Book.  Apparently, neither the defense counsel nor the military judge checked PE 6 to make sure it was free of any defects, as it was admitted without objection.  There were a variety of unrelated documents “[t]ucked between the actual excerpts” from the Service Record Book.  Such documents included the entire military police investigation, the pretrial advice from the SJA, inadmissible photographs, and appellant’s pretrial offer to plead guilty to charges on which the members had just acquitted appellant.  The sentence was set aside and a rehearing authorized.

4.                   Article 15s (formal).

a)   Ordinarily, to be admissible in sentencing, the proponent must show the accused had opportunity to consult with counsel and that accused waived the right to demand trial by court-martial.  Absent objection by defense counsel, however, Military Rule of Evidence (M.R.E.) 103 does not require the military judge to affirmatively determine whether an accused had an opportunity to consult with counsel and that the accused waived the right to demand trial by court-martial before admitting a record of nonjudicial punishment (NJP) (an accused’s “Booker” rights). See United States v. Kahmann, 59 M.J. 309 (2004).

b)   United States v. Rimmer, 39 M.J. 1083 (A.C.M.R. 1994) (per curiam). Exhibit of previous misconduct containing deficiencies on its face is not qualified for admission into evidence. Record of NJP lacked any indication of accused’s election concerning appeal of punishment, and imposing officer failed to check whether he conducted an open or closed hearing.

5.                   Letters of Reprimand.

a)   United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993). Applying M.R.E. 403, the court held that the MJ erred in admitting LOR given the accused for sexual misconduct with his teenage stepdaughter and other teenage girls where accused was convicted of larceny of property of a value less than $100.00. “[The reprimand’s] probative value as to his military character was significantly reduced because of its obvious reliability problems. In addition, it is difficult to imagine more damaging sentencing evidence to a soon-to-be sentenced thief than also brandishing him a sexual deviant or molester of teenage girls.” Id. at 283.

b)   United States v. Clemente, 50 M.J. 36 (1999). Two letters of reprimand in accused’s personnel file properly admitted pursuant to R.C.M. 1001(b)(2), even though letters were for conduct dissimilar to charged offenses. The CAAF noted there was no defense challenge to the accuracy, completeness or proper maintenance of the letters, and the evidence directly rebutted defense evidence. The court applied an abuse of discretion standard and held that the LORs were personnel records that did reflect past behavior and performance, and M.R.E. 403 was not abused. 

6.                   Caveats.

a)   No “rule of completeness.” Trial counsel cannot be compelled to present favorable portions of personnel records if unfavorable portions have been introduced in aggravation. See R.C.M. 1001(b)(2) analysis (MCM 2016 ed.).

b)   R.C.M. 1001(b)(2) cannot be used as a “backdoor means” of admitting otherwise inadmissible evidence. United States v. Delaney, 27 M.J. 501 (A.C.M.R. 1988) (observing that government cannot use enlistment document (e.g., enlistment contract) to back door inadmissible prior arrests; cannot then use police report to rebut accused’s attempted explanations of arrests). Compare with Ariail, 48 M.J. 285 (1998) (holding that information on NAQ that had information on prior convictions was admissible under R.C.M. 1001(b)(2)).

c)   United States v. Vasquez, 54 M.J. 303 (2001).  Plea-bargaining statements are not admissible (M.R.E. 410) even if those statements relate to offenses that are not pending before the court-martial at which they are offered. It was error for the judge to admit into evidence a request for an administrative discharge in lieu of trial by court-martial. See also United States v. Anderson, 55 M.J. 182 (2001).

7.                   Defects in documentary evidence.  

a)   United States v. Donohue, 30 M.J. 734 (A.F.C.M.R. 1990). Government introduced document that did not comply with AF Reg. requiring evidence on the document or attached thereto that accused received a copy and had an opportunity to respond.  ISSUE: May Government cure the defect with testimony that accused did receive a copy and was offered an opportunity to respond?  “The short answer is no.” Why – because the applicable AF Reg. required evidence on the document itself. Absent a specific regulatory requirement such as that in Donahue, live testimony could cure a documentary/procedural defect. See also United States v. Kahmann, 58 M.J. 667 (N-M. Ct. Crim. App. 2003), aff’d, 59 M.J. 309 (2004) supra. 

b)   MJ must apply M.R.E. 403 to R.C.M. 1001(b)(2) evidence. See United States v. Zengel, 32 M.J. 642 (C.G.C.M.R. 1991) (suppressing a prior “arrest” that was documented in the accused’s personnel records). See also United States v. Stone, 37 M.J. 558 (A.C.M.R. 1993); and United States v. Zakaria, 38 M.J. 280 (C.M.A. 1993).

      C.   Prior Convictions - Civilian & Military. R.C.M. 1001(b)(3).

1.         There is a “conviction” in a court-martial case when a sentence has been adjudged.  R.C.M. 1001(b)(3)(A). “In a civilian case, a ‘conviction’ includes any disposition following an initial judicial determination or assumption of guilt, such as when guilt has been established by guilty plea, trial, or plea of nolo contendere, regardless of the subsequent disposition, sentencing procedure, or final judgment. However, a ‘civilian conviction’ does not include a diversion from the judicial process without a finding or admission of guilt; expunged convictions; juvenile adjudications; minor traffic violations; foreign convictions; tribal court convictions; or convictions reversed, vacated, invalidated or pardoned because of errors of law or because of subsequently discovered evidence exonerating the accused.”

a)   United States v. Caniete, 28 M.J. 426 (C.M.A. 1989).  Convictions obtained between date of offense for which accused was on trial and date of trial were “prior convictions” per R.C.M. 1001(b)(3)(A). 

b)   Juvenile adjudications are not convictions within the meaning of R.C.M. 1001(b)(3) and are therefore inadmissible in aggravation.  United States v. Slovacek, 24 M.J. 140 (C.M.A. 1987).

2.         Use of prior conviction. 

a)   United States v. Tillar, 48 M.J. 541 (A.F. Ct. Crim. App. 1998).  At sentencing, trial counsel offered evidence of 18-year-old special court-martial conviction for larceny of property of value less than $100.00. MJ allowed evidence, but instructed panel not to increase sentence solely on basis of prior conviction. The Air Force Court upheld admission of the conviction, noting only time limitation is whether such evidence is unfairly prejudicial (M.R.E. 403).

b)   As with all evidence at trial, the military judge must apply the M.R.E. 403 balancing test. United States v. Glover, 53 M.J. 366 (2000).

c)   United States v. Cantrell, 44 M.J. 711 (A.F. Ct. Crim. App. 1996). “The proper use of a prior conviction . . .  is limited to the basic sentencing equation. Evidence is admissible in sentencing either because it shows the nature and effects of the crime(s) or it illumines the background and character of the offender.” Id. at 714.

d)   “MCM provides only for consideration of prior convictions, and not of any prior criminal record in sentencing.” United States v. Delaney, 27 M.J. 501 (A.C.M.R. 1988).

3.         Pendency of appeal.  R.C.M. 1001(b)(3)(B). 

a)   Conviction is still admissible.

b)   Pendency of appeal is admissible as a matter of weight to be accorded the conviction.

c)   Conviction by summary court-martial or special court-martial without a military judge is not admissible until review under UCMJ Article 64 or 66 is complete.

4.         Authentication under Section IX of M.R.E. required.

5.         Methods of proof.

a)   DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court Martial Convictions).

b)   DD Form 493 (Extract of Military Records of Previous Convictions).

c)   Promulgating order (an order is not required for a SCM (R.C.M. 1114(a)(3))).

d)   Record of trial. DD Form 490 (Record of Trial) or 491 (Summarized Record of Trial) for special and general courts-martial and DD Form 2329 for SCM.

e)   Arraignment calendar.

f)   State agency records. United States v. Eady, 35 M.J. 15 (C.M.A. 1992).  Proof of conviction in form of letter from police department and by indictment and offer to plead guilty not prohibited under the M.R.E. But see United States v. Mahaney, 33 M.J. 846 (A.C.M.R. 1991). Civilian conviction is not self-authenticating because not under seal.

g)   Use of personnel records of the accused. United States v. Barnes, 33 M.J. 468 (C.M.A. 1992). Government may use Department of Defense Form 1966/3 to prove accused’s prior conviction IAW:

-          M.R.E. 803(6), records of regularly conducted activity; or

-          M.R.E. 801(d)(2), admission by party opponent.

6.         Other considerations

a)   So long as only relevant portions are used and the probative value outweighs the prejudicial effect. United States v. Wright, 20 M.J. 518 (A.C.M.R. 1985).

b)   United States v. Kelly, 45 M.J. 259 (1996) (improper for court-martial to consider SCM conviction on sentencing when there was no evidence accused was ever advised of the right to consult with counsel, or to be represented by counsel at his SCM).

D.  Aggravation Evidence. R.C.M. 1001(b)(4). A military judge has broad discretion in determining whether to admit evidence under 1001(b)(4). United States v. Rust, 41 M.J. 472, 478 (1995); United States v. Wilson, 47 M.J. 152, 155 (1997); United States v. Gogas, 58 M.J. 96 (2003).

1.         “. . . [E]vidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty” (emphasis added).  See United States v. Hardison, 64 M.J. 279 (2007)

2.         Three components – “Evidence in aggravation includes, but is not limited to”:

a)   Victim-Impact: “[E]vidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of the offense committed by the accused.”

b)   Mission-Impact: “[E]vidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense.”

c)   Hate-Crime Evidence: “[E]vidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.”

3.         United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018).  Holding that R.C.M. 1001A belongs to the victim, and is separate and distinct from the government’s right to offer victim impact statements in aggravation under R.C.M. 1001(b)(4). (emphasis in original)

4.    United States v. Nourse, 55 M.J. 229 (C.A.A.F. 2001). The CAAF held that it was permissible to admit evidence of other uncharged larcenies of property from the same victim by the accused because such evidence “directly related to the charged offenses as part of a continuing scheme to steal from the . . . [victim].”  This evidence showed the “full impact of appellant’s crimes” upon the victim. See also United States v. Shupe, 36 M.J. 431 (C.M.A. 1993); United States v. Mullens, 29 M.J. 398 (C.M.A. 1990).   

5.         United States v. Patterson, 54 M.J. 74 (C.A.A.F. 2000).  Testimony by government expert regarding patterns of pedophiles, to include “grooming” of victims, admissible even though expert did not expressly testify the accused was a pedophile.  Compare with United States v. McElhaney, 54 M.J. 120 (2000) (holding that the military judge erred when he allowed a child psychiatrist to testify about future dangerousness).

6.         United States v. Sittingbear, 54 M.J. 737 (N-M. Ct. Crim. App. 2001).  Victim’s testimony that she sustained a rectal tear during a rape is admissible even where a sodomy charge had been withdrawn and dismissed.

7.  United States v. Alis, 47 M.J. 817 (A.F. Ct. Crim. App. 1998).  Accused’s awareness of magnitude of crime, and remorseless attitude toward offenses, is admissible in sentencing.

8.  United States v. Wilson, 47 M.J. 152 (1997).  Accused convicted of disrespect for commenting to another party that, “Captain Power, that f_____g b____h is out to get me.” Officer testified at sentencing to “concern” statement caused her. The CAAF held that the testimony was properly admissible.

9.  United States v. Zimmerman, 43 M.J. 782 (Army Ct. Crim. App. 1996).  Evidence that accused was motivated by white supremacist views when he wrongfully disposed of military munitions to what he believed was a white supremacist group constituted aggravating circumstances directly related to the offense. 

10.  United States v. Gargaro, 45 M.J. 99 (1996).  Evidence that civilian drug dealer triggered the investigation when he was arrested with an AK-47 that he said he obtained from a Fort Bragg soldier showed the extent of the conspiracy and the responsibility of the accused’s commander. Any unfair prejudice stemming from the fact that the weapon was found in the hands of a drug dealer was outweighed by the probative value showing the facts and circumstances surrounding the investigation of the charged offenses. 

11.  United States v. Hollingsworth, 44 M.J. 688 (C.G. Ct. Crim. App. 1996).  Testimony of child victim to offense which was the basis of a withdrawn specification admissible when it showed extent of scheme with evidence of other transactions. Also, testimony of expert child psychologist that sexual abuse victim’s recovery was affected or hindered by the pendency of legal proceedings admissible where defense raised factors affecting a victim’s recovery rate and expert’s testimony provided a “more complete” explanation of the victim’s prognosis.

12.  United States v. Scott, 42 M.J. 457 (1995).  Initial findings to involuntary manslaughter and assault with a dangerous weapon set aside (accused fired into a crowd). On appeal, the charge that remained was carrying a concealed weapon. Evidence of death and injuries showed circumstances “directly related to or resulting from” the accused’s carrying of a concealed weapon.

13.  United States v. Terlep, 57 M.J. 344 (2002).  Appellant, initially charged with burglary and rape, plead to unlawful entry and assault. On sentencing, victim testified she awoke from what she thought was a “sex dream” only to discover the appellant on top of her. She testified, in part, that “when I told him to get off of me, he had to take his private part out of me and get off. . . .” She also testified “He admitted—he said what he had done. He said, ‘I raped you.’” The CAAF found that the victim’s testimony did not constitute error. The court noted that although the appellant entered into a pretrial agreement to lesser offenses, the victim could testify to “her complete version of the truth, as she saw it” limited only by the terms of the pretrial agreement and stipulation of fact. Neither the pretrial agreement nor the stipulation of fact limited the evidence the government could present on sentencing. The court noted that “absent an express provision in the pretrial agreement or some applicable rule of evidence or procedure barring such evidence, this important victim impact evidence was properly admitted.” R.C.M. 1001(b)(4) provides for “accuracy in the sentencing process by permitting the judge to fully appreciate the true plight of the victim in each case.”

14.  United States v. Marchand, 56 M.J. 630 (C.G. Ct. Crim. App. 2001).  Expert testimony describing impact of child pornography upon minors depicted in images admissible notwithstanding that expert did not establish that the particular victims in the images viewed by accused actually suffered any adverse impact, only that there was an increased risk to sexually abused minors generally of developing complications from abuse.

15.  United States v. Smith, 56 M.J. 653 (Army Ct. Crim. App. 2001).  Unwarned testimony by appellant to U.S.D.B. Custody Reclassification Board where appellant said “‘it’s an inmates duty to try and escape, especially long-termers” and that he is “‘an escape risk and always will be’” admissible on aggravation. 

16.  United States v. Gogas, 58 M.J. 96 (2003).  Letter from accused to his Congressman complaining about being prosecuted for LSD use admissible under 1001(b)(4) as directly related to the offense of drug use. The letter highlighted the appellant’s “indifference to anything other than his own pleasure.” The court did not rule on whether the evidence was also admissible on the issue of rehabilitative potential.

17.  United States v. Dezotell, 58 M.J. 517 (N-M. Ct. Crim. App. 2003).  Witness’ testimony that appellant’s unauthorized absence and missing movement adversely affected ship’s mission and efficiency during a period of heightened responsibilities proper testimony despite the fact that the appellant, at the time, was not working for the witness and the witness’ testimony was not subject “to precise measurement or quantification.” All that is required is a “direct logical connection or relation between the offense and the evidence offered.”

18.  United States v. Powell, 45 M.J. 637 (N.M. Ct. Crim. App. 1997), aff’d, 49 M.J. 360 (1998).  Uncharged misconduct that accused lost government property, was financially irresponsible, and passed worthless checks was not directly related to offenses of which convicted - i.e., failure to report to work on time and travel and housing allowance fraud - and therefore not admissible at sentencing under R.C.M. 1001(b)(4). The court also noted that “MRE 404(b) does not determine the admissibility of evidence of uncharged misconduct during sentencing . . . admissibility of such evidence is determined solely by R.C.M. 1001(b)(4) . . . .”  Id. at 640.

19.  United States v. Rust, 41 M.J. 472 (1995).  Prejudicial error to admit suicide note in aggravation phase of physician’s trial for dereliction of duty and false official statement. The murder-suicide was too attenuated even if the government could establish link between accused’s conduct and murder-suicide, and clearly failed M.R.E. 403’s balancing test.

20.  United States v. Davis, 39 M.J. 281 (C.M.A. 1994).  Victim’s testimony as to how he would feel if the accused received no punishment not admissible as evidence of impact evidence under R.C.M. 1001(b)(4) or as evidence regarding accused’s rehabilitative potential under R.C.M. 1001(b)(5).

21.  United States v. Hardison, 64 M.J. 279 (2007).  The military judge committed plain error in admitting evidence of Appellant’s pre-service drug use and a service waiver for that drug use.  Admissible evidence in aggravation must be “directly related” to the convicted crime. 

E.   Opinion evidence regarding past duty performance and rehabilitative potential.  R.C.M. 1001(b)(5).

1.         What does “rehabilitative potential” mean?

a)   The term “rehabilitative potential” means potential to be restored to “a useful and constructive place in society.”  R.C.M. 1001(b)(5).

b)   United States v. Williams, 41 M.J. 134 (C.M.A. 1994).  Psychiatric expert’s prediction of future dangerousness was proper matter for consideration in sentencing under rule providing for admission of evidence of accused’s potential for rehabilitation under R.C.M. 1001(b)(5).

2.         Foundation for opinion testimony. R.C.M. 1001(b)(5)(B).

a)   The witness must possess sufficient information and knowledge about the accused’s “character, performance of duty, moral fiber, determination to be rehabilitated, and nature and severity of the offenses” in order to offer a “helpful,” rationally based opinion.  R.C.M. 1001(b)(5)(B), codifying United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989).

b)   United States v. Powell, 49 M.J. 460 (1998). In laying a foundation for opinion evidence of an accused’s rehabilitative potential, a witness may not refer to specific acts.

c)   Quality of the opinion depends on the foundation. United States v. Boughton, 16 M.J. 649 (A.F.C.M.R. 1983). Opinions expressed should be based on personal observation, but may also be based on reports and other information provided by subordinates.

3.         Basis for opinion testimony R.C.M. 1001(b)(5)(C).

a)   Opinion evidence of rehabilitative potential may not be based solely on the severity of the offense; must be based upon relevant information and knowledge possessed by the witness of the accused’s personal circumstances. R.C.M. 1001(b)(5)(C); United States v. Horner, 22 M.J. 294 (C.M.A. 1986). 

4.         Proper scope of opinion testimony R.C.M. 1001(b)(5)(D).

a)   The scope “is limited to whether the accused has rehabilitative potential and to the magnitude or quality of any such potential. A witness may not offer an opinion regarding the appropriateness of a punitive discharge or whether the accused should be returned to the accused’s unit.”  R.C.M. 1001(b)(5)(D).

b)   It is improper for a witness to use a euphemism for a punitive discharge in commenting on an accused’s rehabilitative potential. United States v. Ohrt, 28 M.J. 301 (C.M.A. 1989).  United States v. Warner, 59 M.J. 590 (C.G. Ct. Crim. App. 2003). On cross-examination of appellant’s supervisor (whom the defense called to establish that the appellant had rehabilitation potential), the government asked the witness about the appellant’s rehabilitative potential “in the Coast Guard, given his drug abuse.”  The government’s questions were improper because they linked the witness’ opinion on rehabilitative potential with award of a punitive discharge.

c)   The same rules do not apply to the defense.

(1)        United States v. Griggs, 61 M.J. 402 (2005). Appellant tried and convicted of various drug-related offenses. On sentencing, the DC offered six letters with opinions on to appellant’s rehabilitative potential in the Air Force rather than as a productive member of society. The TC objected on the grounds that the statements were recommendations for retention and would confuse the members. The military judge ordered the disputed language redacted. The AFCCA held that the MJ did not abuse his discretion by ordering the redaction and, even if he did, the error was harmless (i.e., there was no prejudice to the appellant). The court cited confusion in this area of law as to whether such evidence is proper from the accused as a basis for its conclusion. The court also noted that the DC conceded that R.C.M. 1001(b)(5) applied to the defense letters.   CAAF granted review and concluded “the better view is that R.C.M. 1001(b)(5)(D) does not apply to defense mitigation evidence, and specifically does not preclude evidence that a witness would willingly serve with the accused again.”  However, CAAF further restated, as in Aurich, “if an accused ‘opens the door’ by bringing witnesses before the court to testify that they want him or her backing the unit, the Government is permitted to prove that that is not a consensus view of the command.”  31 M.J. at 96-97.

d)   Specific acts?  R.C.M. 1001(b)(5)(E) and (F).

(1)        On direct, government may not introduce specific acts of uncharged misconduct that form the basis of the opinion.  See United States v. Rhoads, 32 M.J. 114 (C.M.A. 1991).

(2)        If the defense opens the door during cross-examination, on redirect the trial counsel should also be able to address specific incidents of conduct.  United States v. Clarke, 29 M.J. 582 (A.F.C.M.R. 1989). See also United States v. Gregory, 31 M.J. 236 (C.M.A. 1990) (R.C.M. 1001(b)(5) witness cannot testify about specific instance of misconduct as basis for opinion until cross-examined on specific good acts).

e)   Future Dangerousness.

(1)        United States v. Williams, 41 M.J. 134 (C.M.A. 1994). Psychiatric expert’s prediction of future dangerousness was proper matter for consideration in sentencing under rule providing for admission of evidence of accused’s potential for rehabilitation under R.C.M. 1001(b)(5).

(2)        Rebuttal Witnesses. United States v. Pompey, 33 M.J. 266 (C.M.A. 1991). The Ohrt/Horner rules apply to government rebuttal witnesses to keep unlawful command influence out of the sentencing proceedings (a rational basis for expressing opinion is still required). But see United States v. Aurich, 32 M.J. 95 (C.M.A. 1990) (observing that where defense witnesses testify they want accused back in unit, the government may prove that that is not a consensus of the command). 

(3)        Absence of rehabilitative potential is a factor for consideration in determining a proper sentence; that absence is NOT a matter in aggravation. United States v. Loving, 41 M.J. 213 (C.M.A. 1994), aff’d, 517 U.S. 748 (1996).  MJ’s characterization of accused’s disciplinary record and his company commander’s testimony about accused’s duty performance as aggravating circumstances was error since lack of rehabilitative potential is not an aggravating circumstance.

F.   Matters admitted into evidence during findings.  R.C.M. 1001(f).

1.         R.C.M. 1001(f)(2). The court-martial may consider any evidence properly introduced on the merits before findings, including evidence of other offenses or acts of misconduct even if introduced for a limited purpose.

2.         Statements from providence inquiry.

a)   United States v. Figura, 44 M.J. 308 (1996). There is no demonstrative right way to introduce evidence from the providence inquiry, but MJ should permit parties to choose method of presentation.  How to do it: authenticated copy of trial transcript, witness, tapes. See United States v. Irwin, 42 M.J. 479 (1995). Admissibility of various portions of providence inquiry should be analyzed in same manner as any other piece of evidence offered by the government under R.C.M. 1001.

b)   United States v. English, 37 M.J. 1107 (N.M.C.M.R. 1993). MJ does not have authority to consider statements of accused made during providence inquiry, absent offering of statements, and defense opportunity to object to consideration of any or all of providence inquiry.

G.  “Aggravation evidence” in stipulations of fact.

1.         United States v. Glazier, 26 M.J. 268 (C.M.A. 1988).  Inadmissible evidence may be stipulated to (subject to R.C.M. 811(b) “interests of justice” and no government overreaching).  Stipulation should be unequivocal that all parties agree stipulation is “admissible.”

2.         United States v. DeYoung, 29 M.J. 78 (C.M.A. 1989).  Military judge must affirmatively rule on defense objections, even if the stipulation states that the contents are admissible.  Parties cannot usurp the MJ’s role.

3.         United States v. Vargas, 29 M.J. 968 (A.C.M.R. 1990).  The stipulated facts constitute uncharged misconduct not closely related to the facts alleged; therefore, they were “generally” inadmissible.  BUT, the accused agreed to permit their use in return for favorable sentence limits, and there was no evidence of government overreaching.

H.  Three-step process for analyzing sentencing matter presented by the prosecution per R.C.M. 1001(b):

1.         Does the evidence fit one of the enumerated categories of R.C.M. 1001(b)?  Evidence inadmissible under one theory (e.g., prior conviction under 1001(b)(4)) may be admissible under another theory (e.g., personnel record under 1001(b)(2)).  See e.g., United States v. Ariail, 48 M.J. 285 (1998); United States v. Douglas, 57 M.J. 270 (2002); United States v. Gogas, 58 M.J. 96 (2003).

2.         Is the evidence in an admissible form? United States v. Bolden, 34 M.J. 728 (N.M.C.M.R. 1991).

3.         Is the probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence?  M.R.E. 403. See United States v. Zengel, 32 M.J. 642 (C.G.C.M.R. 1991); United States v. Martin, 20 M.J. 227 (C.M.A. 1985).

III.           THE DEFENSE CASE.  R.C.M. 1001(c)/R.C.M. 1001(d)

A.     Matters in extenuation. R.C.M. 1001(c)(1)(A)/R.C.M. 1001(d)(1)(A).  Explains circumstances surrounding commission of the offense, including those reasons that do not constitute a legal justification or excuse.

B.      Matters in mitigation. R.C.M. 1001(c)(1)(B)/R.C.M. 1001(d)(1)(B).

1.                   Personal factors concerning the accused introduced to lessen the punishment; e.g., evidence of the accused’s reputation or record in the service for efficiency, fidelity, temperance, courage, etc. 

2.                   United States v. Demerse, 37 M.J. 488 (C.M.A. 1993). Counsel should pay particular attention to awards and decorations based on combat service.

3.                   United States v. Bray, 49 M.J. 300 (1998). Proper mitigation evidence under R.C.M. 1001(c) included the possibility that the accused suffered a psychotic reaction as a result of insecticide poisoning. Such evidence might lessen the adjudged sentence, and is therefore relevant.

4.                   Retirement benefits.

a)   United States v. Washington, 55 M.J. 441 (2001). At time of trial, accused was a senior airman (E-4) who could retire during her current enlistment. The military judge excluded defense evidence that estimated the accused’s retirement pay if she retired after twenty years in the pay grades of E-4 and E-3. The military judge erred by refusing to admit a summary of expected lost retirement of approximately $240,000.00 if accused was awarded a punitive discharge.

b)   United States v. Boyd, 55 M.J. 217 (2001). The military judge declined to give a requested defense instruction on the loss of retirement benefits that could result from a punitive discharge. The accused had fifteen and a half years active service. The court held that there was no error in this case, but stated “we will require military judges in all cases tried after the date of this opinion (10 July 2001) to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.”

c)   United States v. Greaves, 46 M.J. 133 (1997). The military judge should give some instructions when the panel asks for direction in important area of retirement benefits.

C.      Statement by the accused. R.C.M. 1001(c)(2)/R.C.M. 1001(d)(2).

1.                   Sworn statement. R.C.M. 1001(c)(2)(B)/R.C.M. 1001(d)(2)(B).

a)   Subject to cross-examination by trial counsel, military judge, and members.

b)   Rebuttable by:

-          Opinion and reputation evidence of character for untruthfulness. R.C.M. 608(a).

-          Evidence of bias, prejudice, or any motive to misrepresent. R.C.M. 608(c).

-          Extrinsic evidence of prior inconsistent statements.  R.C.M. 613.

2.                   Unsworn statement by accused. R.C.M. 1001(c)(2)(C)/R.C.M. 1001(d)(2)(C), not subject to cross

a)   May be oral, written, or both.

b)   May be made by accused, counsel, or both.

c)   Matters covered in unsworn statement.

(1)  United States v. Grill, 48 M.J. 131 (1998). The right of an accused to make a statement in allocution is not wholly unfettered, but must be evaluated in the context of statements in specific cases. It was error to sustain the government’s objection to the accused making any reference to his co-conspirators being treated more leniently by civilian jurisdictions (i.e., not prosecuted, deported, probation). “The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution.”

(2)  United States v. Jeffery, 48 M.J. 229 (1998). An accused’s rights in allocution are broad, but not wholly unconstrained. The mere fact, however, that an unsworn statement might contain otherwise inadmissible evidence –  e.g., the possibility of receiving an administrative rather than punitive discharge – does not render it inadmissible.

(3)  United States v. Britt, 48 M.J. 233 (1998).  There are some limits on an accused’s right of allocution, but “comments that address options to a punitive separation from the service . . . are not outside the pale.”  Error for the military judge to redact portion of the accused’s unsworn statement telling panel that commander intended to discharge him administratively if no punitive discharge imposed by court-martial.

(4)  United States v. Johnson, 62 M.J. 31 (2005).  Prior to trial, Appellant took a privately administered polygraph examination arranged by the defense.  The examiner concluded that appellant was not deceptive when he denied knowing that he transported marijuana.  During the sentencing hearing he sought to refer to his “exculpatory” polygraph test during his unsworn statement.  The military judge ruled that the test results were inadmissible.  The CAAF found that polygraph evidence squarely implicates its own admonition against impeaching or relitigating the verdict on sentencing.  Furthermore, the court was not persuaded that exculpatory polygraph information qualifies as extenuation, mitigation, or rebuttal under R.C.M. 1001(c).

(5)  United States v. Barrier, 61 M.J. 482 (2005).  The military judge did not err when, over defense objection, he gave the “Friedmann” instruction.  During appellant’s unsworn statement, the military judge called the panel members’ attention to the sentence received in an unrelated similar case.  The military judge gave an instruction which essentially told the panel members that that part of the accused’s unsworn statement was irrelevant and that they should not consider it in determining an appropriate sentence.

d)   United States v. Friedmann, 53 M.J. 800 (A.F. Ct. Crim. App. 2000), pet. denied, 54 M.J. 425 (2001). Proper for military judge to provide sentencing instruction to clarify for the members comments made in the accused’s unsworn statement.

3.                   The defense may not present evidence or argument that challenges or re-litigates the prior guilty findings of the court. United States v. Teeter, 16 M.J. 68 (C.M.A. 1983).

4.                   If accused made an unsworn statement, government may only rebut statements of fact.

a)   United States v. Manns, 54 M.J. 164 (2000). “I have tried throughout my life, even during childhood, to stay within the laws and regulations of this country,” was held to be a statement of fact and could be rebutted by evidence of the accused’s admission to marijuana use.

b)   United States v. Willis, 43 M.J. 889 (A.F. Ct. Crim. App. 1996), aff’d, 46 M.J. 258 (1997). Government allowed to rebut accused’s expression of remorse with inconsistent statements made previously by accused on psychological questionnaire and audio tape of telephone message to brother of victim.

c)   United States v. Cleveland, 29 M.J. 361 (C.M.A. 1990).  “Although I have not been perfect, I feel that I have served well and would like an opportunity to remain in the service. . . .”           The court determined that the statement was more in the nature of an opinion, “indeed, an argument;” therefore, not subject to rebuttal.

d)   United States v. Thomas, 36 M.J. 638 (A.C.M.R. 1992).  Accused’s unsworn statement commented on his upbringing, pregnant girlfriend, reasons for enlisting in the Army, and the extenuating circumstances surrounding his offenses. The accused also apologized to the Army and the victim. The court held that it was improper rebuttal to have the 1SG testify that the accused was not truthful since character for truthfulness was not at issue.

5.                   Relaxed rules of evidence. R.C.M. 1001(c)(3)/R.C.M. 1001(d)(3). United States v. Saferite, 59 M.J. 270 (2003). The rules of evidence apply at sentencing, but the MJ may relax the rules of evidence upon request of defense counsel. A relaxation of the rules, however, goes toward whether evidence is reliable and authentic; otherwise inadmissible evidence is still not admitted (citing United States v. Boone, 49 M.J. 187, 198 n.14 (1998)). See also United States v. Steward, 55 M.J. 630 (N-M. Ct. Crim. App. 2001) (observing that relaxed rules of evidence is not limited to only documentary evidence). Relaxing the rules for defense also relaxes the rules to the same extent for trial counsel.

D.     Right to a “Complete Sentencing Proceeding.” United States v. Libecap, 57 M.J. 611 (C.G. Ct. Crim. App. 2002) [Libecap I]. On appeal, the appellant argued that a term of his pretrial agreement that required him to request a punitive discharge was both a violation of R.C.M. 705 and contrary to public policy. The court agreed, setting aside the sentence and authorizing a rehearing on sentence. The court found that the provision violated R.C.M. 705(c)(1)(B) because “as a practical matter, it deprived the accused of a complete sentencing proceeding.” The court also found that the provision was contrary to public policy. 

E.      Mental Impairment.  United States v. Doss, 57 M.J. 182 (2002).  Noting that defense counsel was ineffective for failing to present “extant” psychological evidence. 

F.      Rebuttal. R.C.M. 1001(d)/R.C.M. 1001(e).  Government rebuttal evidence must actually “explain, repel, counteract or disprove the evidence introduced by the opposing party.”  United States v. Wirth, 18 M.J. 214, 218 (C.M.A. 1984).

1.                   United States v. Hursey, 55 M.J. 34 (C.A.A.F. 2001). The military judge abused his discretion when he admitted the testimony of NCOIC of the base Military Justice Division to testify that the accused was late for his court-martial as rebuttal to defense evidence of the accused’s dependability at work (where NCOIC unable to say whether the accused was at fault or whether his being late was unavoidable). Testimony had little probative value, was potentially misleading, and time wasting.

2.                   Horner and Ohrt apply to government rebuttal witnesses. See United States v. Pompey, 32 M.J. 547 (A.F.C.M.R. 1990).  The basic foundational requirements from those cases govern rebuttal witnesses who are testifying about rehabilitation potential; R.C.M. 1001(b)(5) does not expressly apply.  United States v. Griggs, 61 M.J. 402 (C.A.A.F. 2005); United States v. Eslinger, 70 M.J. 193 (C.A.A.F. 2011).

3.                   When to allow rebuttal? United States v. Tilly, 44 M.J. 851 (N-M. Ct. Crim. App. 1996). The military judge began to deliberate on sentence, then granted trial counsel motion to reopen sentencing to allow rebuttal with newly-discovered evidence. The court found that the beginning of the judge’s deliberation was not a bar to reopening the taking of evidence for rebuttal.

G.     Surrebuttal. R.C.M. 1001(d)/R.C.M. 1001(e).  United States v. Provost, 32 M.J. 98 (C.M.A. 1991). After government rebuttal to accused’s first unsworn statement, accused was entitled to make a second unsworn statement. But see United States v. Satterley, 55 M.J. 168 (2001).

H.     Witnesses. R.C.M. 1001(e)/R.C.M. 1001(f).

1.                   Who must the government bring?

a)   United States v. Mitchell, 41 M.J. 512 (A.C.M.R. 1994). The military judge did not err by denying accused’s request for Chief of Chaplains as character witness. While acknowledging accused’s right to present material testimony, court upheld judge’s exercise of discretion in determining the form of presentation. Proffered government stipulation of fact detailed the witness’s background, strong opinions favoring the accused, and the government’s refusal to fund the witness’s travel.

b)   United States v. Briscoe, 56 M.J. 903 (A.F. Ct. Crim. App. 2002). The appellant alleged the military judge erred by not ordering the government to produce the appellant’s father as a sentencing witness. The court held that there was no evidence of “extraordinary circumstances” that required the production of a live witness; therefore, the military judge’s ruling, in light of the government’s offer to enter into a stipulation of fact, was not an abuse of discretion.

IV.            STATEMENTS BY THE VICTIM.  R.C.M. 1001A/R.C.M. 1001(c)

A.     For purposes of this rule, a “crime victim” is an individual who has suffered direct physical, emotional, or pecuniary harm as a result of the commission of an offense of which the accused was found guilty.  R.C.M. 1001A(b)(1)/R.C.M. 1001(c)(2)(A). This definition touches all classes of victims and is not limited to sexual assault victims.

B.      Right to be reasonably heard. R.C.M. 1001A(b)(4)/R.C.M. 1001(c)(2)(D).

1.       Capital cases. In capital cases, for purposes of this rule, the “right to be reasonably heard” means the right to make a sworn statement.

2.       Non-capital cases. In non-capital cases, for purposes of this rule, the “right to be reasonably heard” means the right to make a sworn statement, an unsworn statement, or both (the last provision, allowing both, is a MJA 2016 change).

C.      Content. R.C.M. 1001A(C)/R.C.M. 1001(c)(3). Can include victim impact or matters in mitigation.

1.               United States v. Hamilton, 77 M.J. 579 A.F. Ct. Crim. App. 2017), aff'd on other grounds, 78 MJ 335 (C.A.A.F. 2019). Holding that victim impact statements offered pursuant to R.C.M. 1001A are not evidence, and therefore not subject to M.R.E. 403.  But see United States v. Tyler, 2020 CAAF LEXIS 517 (Sept. 22, 2020) (granting review of whether victim impact statments are evidence).

D.     Victim may give a sworn or unsworn statement.   Under the MJA 2016, the rule will change slightly for unsworn statements.  The crime victim will only be required to provide a written proffer (as opposed to a copy of the statement) to both counsel (no longer requires service on the MJ).  If the victim’s unsworn statement contains factual matter not previously disclosed to both counsel, the MJ may take “appropriate action.”

V.   SENTENCING DETERMINATION. R.C.M. 1002

A.     The MJA 2016 will make substantial changes to Articles 53 and 56 and their implementing Rule, R.C.M. 1002. This includes changes to forum election, and, perhaps most important, unitary sentencing, which will be retained only in cases involving member sentencing. Art. 56 will also include commonly held sentencing principles, referred to as “factors” in the MJA 2016 Executive Summary, to guide the imposition of sentences in a court-martial.

VI.            PERMISSIBLE PUNISHMENTS.  R.C.M. 1003

A.     Reprimand. R.C.M. 1003(b)(1). “A court-martial shall not specify the terms or wording of a reprimand. A reprimand, if approved, shall be issued, in writing, by the convening authority [CA].” The reprimand, when issued, is placed in the CA’s action.

B.      Forfeiture of pay and allowances. R.C.M. 1003(b)(2).

1.                   Adjudged Forfeitures. At a general court-martial (GCM), the court may adjudge forfeiture of ALL pay and allowances (a.k.a., “total forfeitures”). At a special court-martial (SPCM), the court may adjudge forfeiture of 2/3 pay only. Allowances at a special court-martial are NOT subject to forfeiture. 

2.                   United States v. Dewald, 39 M.J. 901 (A.C.M.R. 1994).  Forfeitures may not exceed two-thirds pay per month during periods of a sentence when an accused is not in confinement. Accordingly, during periods that adjudged confinement is suspended, forfeitures are limited to two-thirds pay per month. See R.C.M. 1107(d)(2).

3.                   Partial forfeitures. Unless total forfeitures are adjudged (i.e., forfeiture of ALL pay and allowances), partial forfeitures MUST be stated in whole dollar amounts for a specific number of months and the number of months the forfeitures will last. R.C.M. 1003(b)(2).

4.                   Forfeitures are calculated at reduced pay grade WHETHER suspended or not. United States v. Esposito, 57 M.J. 608 (C.G. Ct. Crim. App. 2002).  See also R.C.M. 1003(b)(2).

5.                   United States v. Stewart, 62 M.J. 291 (2006).  Where a sentence to forfeiture of all pay and allowances is adjudged, such sentence shall run until such time as the Servicemember is discharged or returns to a duty status, whichever comes first, unless the sentencing authority expressly provides for partial forfeitures post-confinement.

C.      Fine. R.C.M. 1003(b)(3). 

1.         United States v. Tualla, 52 M.J. 228 (2000). A special court-martial is not precluded from imposing a sentence that includes both a fine and forfeitures as long as the combined fine and forfeitures do not exceed the maximum two-thirds forfeitures that can be adjudged at a special court-martial. (A 2002 amendment to R.C.M. 1003(b)(3) reflects this holding.)

D.     Reduction in grade. R.C.M. 1003(b)(4).  An enlisted Servicemember may be reduced to the lowest enlisted grade, or any intermediate grade, as part of a sentence.  Any automatic reduction of UCMJ Art. 58a is not a part of the sentence. 

E.      Restriction. R.C.M. 1003(b)(5). No more than 2 months; confinement and restriction may be adjudged in the same case but together may not exceed maximum authorized confinement (where 1 month confinement equals 2 months restriction).

F.      Hard labor without confinement. R.C.M. 1003(b)(6). No more than 3 months; confinement and hard labor may be adjudged in the same case but together may not exceed maximum authorized confinement (where 1 month confinement equals 1.5 months hard labor w/o confinement); enlisted members only; court-martial does not prescribe the hard labor to be performed.

G.     Confinement. R.C.M. 1003(b)(7).

H.     Punitive Separation. R.C.M. 1003(b)(8).

1.                   Dismissal.  Applies to commissioned officers and warrant officers who have been commissioned. United States v. Carbo, 37 M.J. 523 (A.C.M.R. 1993).

2.                   DD is available for non-commissioned warrant officers or enlisted.

3.                   BCD is available only for enlisted.

4.                   The 2014 National Defense Authorization Act mandated dishonorable discharge or dismissal for Servicemembers convicted of rape, sexual assault; rape or sexual assault of a child; forcible sodomy, or attempts of any of these offenses. Article 56.

I.        Death. R.C.M. 1003(b)(9).

1.                   Death may be adjudged in accordance with R.C.M. 1004 (mechanics, aggravating factors, votes). Loving v. United States, 517 U.S. 748 (1996).

2.                   Specifically authorized for thirteen different offenses, including aiding the enemy, espionage, murder, and rape.  The MJA 2016 will eliminate death for spying in war.

3.                   Requires the concurrence of all the members as to:  (1) findings on the merits of capital offense, (2) existence of at least one aggravating factor under R.C.M. 1004(c), (3) extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including aggravating factors, and (4) sentence of death.

J.        Maximum Punishment. See Manual for Courts-Martial, Appendix 12.

1.                   Generally – lesser of jurisdiction of court or punishment in Part IV.

2.                   Offenses not listed in the Table of Maximum Punishments.

a)   Included or related offenses.

b)   United States Code.

3.                   Habitual offenders. R.C.M. 1003(d).

a)   Three or more convictions within one year – DD, TF, one year confinement.

b)   Two or more convictions within three years – BCD, TF, three months confinement.

c)   Two or more offenses which carry total authorized confinement of 6 months automatically authorizes BCD and TF.

K.     Article 133 punishment. United States v. Hart, 32 M.J. 101 (C.M.A. 1991). In mega-article 133 specification, the maximum possible punishment is the largest maximum punishment for any offense included in the mega-specification.

L.      Prior NJP for same offense.  United States v. Pierce, 27 M.J. 367 (C.M.A. 1989). Accused must be given credit for prior Article 15 punishment for same offense: day for day, dollar for dollar, and stripe for stripe.

M.    Prior board proceedings. United States v. Blocker, 30 M.J. 1152 (A.C.M.R. 1990). Accused entitled to credit for consequences of administrative board proceedings arising from same misconduct that is the subject of the court-martial.

VII.        INSTRUCTIONS.  R.C.M. 1005

A.     United States v. Boyd, 55 M.J. 217 (2001). Military judges must instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.

B.      United States v. Duncan, 53 M.J. 494 (2000). The members interrupted their deliberations to ask the military judge if rehabilitation/therapy would be required if the accused were incarcerated, and if parole or good behavior were available to someone with a life sentence. Instructions on collateral consequences are permitted, but need to be clear and legally correct. It is appropriate for the judge to answer questions if he/she can draw upon a reasonably available body of information which rationally relates to sentencing considerations (here the panel members’ questions related to both aggravation evidence (heinous nature of the crimes) and rehabilitation potential (his potential unreformed release into society).

C.      United States v. Stargell, 49 M.J. 92 (1998). Court found proper curative instruction by military judge in response to trial counsel argument that accused with nineteen and a half years of service “will get an honorable retirement unless you give him a BCD.” In response to defense objection, judge instructed members that their decision “is not a vote to retain or separate the member but whether or not to give the accused a punitive discharge as a form of punishment.” The majority cited to common knowledge in the military that an accused at twenty years is eligible to retire, usually under honorable conditions, and if processed for administrative discharge following court-martial would be entitled to special consideration.

D.     United States v. Simmons, 48 M.J. 193 (1998). Absent direct evidence that the accused was “emotionally or physically abused during his childhood,” there was no requirement for the military judge to give an instruction to the panel to consider such information. The court noted a dispute over whether the accused actually suffered such abuse. Therefore, the instruction required modification so the members could, not must, consider such evidence if they found the accused had in fact been abused.

E.      United States v. Thompson, 43 M.J. 703 (A.F. Ct. Crim. App. 1995). Accused introduced evidence of child’s upcoming surgery, and offered medical testimony that accused should be present for surgery and a few weeks thereafter. In response to member question, the military judge informed panel that CA has discretion to defer confinement. No abuse of discretion or improper advice to panel on collateral matters where assisted panel in making informed decision.

VIII.    SENTENCE CREDIT

A.     United States v. Rock, 52 M.J. 154 (1999). The CAAF held the military judge did not err in applying the sentence credit received by the accused for illegal pretrial punishment against the accused’s adjudged sentence rather than the approved sentence (accused was awarded 240 days credit against his adjudged confinement as a result of pretrial conditions on his liberty not amounting to confinement; the military judge credited the 240 days against the accused’s adjudged sentence not the approved sentence; the accused was sentenced to sixty-one months of confinement, thus the judge only gave the accused fifty-three months; the accused’s pretrial agreement further reduced the sentence to thirty-six months, minus three days of actual pretrial confinement). The court distinguished between actual or constructive confinement credit and pretrial punishment credit.  Actual confinement credit and constructive confinement credit are administrative credits that come off of the approved sentence. Pretrial punishment credit for something other than confinement (like restrictions on liberty that do not rise to the level of being tantamount to confinement) is generally judicial credit and thus comes off of the adjudged sentence. If the military judge determines that Allen, Mason, or Suzuki credit is warranted, that sentence credit will be tacked on to the sentence after the pretrial agreement is considered.

B.      United States v. Smith, 56 M.J. 290 (2002).  No requirement that accused be given credit for lawful pretrial confinement when no confinement is adjudged.

C.      United States v. Mosby, 56 M.J. 309 (2002). Solitary confinement, in and of itself, does not equal an intent to punish warranting additional credit under Article 13, UCMJ.

D.     United States v. Bracey, 56 M.J. 387 (2002). Appellant was not entitled to Pierce credit since the offenses in question resulted from separate and distinct incidents despite their occurrence close in time and involving the same officer (i.e., victim). The CAAF, in holding that the appellant was not entitled to Pierce credit stated: “Neither the Constitution nor the UCMJ precludes a person from being convicted for multiples offenses growing out of the same transaction, so long as the offenses are not multiplicious . . . . Likewise, although Pierce precludes double punishment for the same offense, it does not preclude multiple punishments for multiple offenses growing out of the same transaction when the offenses are not multiplicious.”

E.      United States v. Spaustat, 57 M.J. 256 (2002). Accused sentenced to reduction to the grade of E-1, ten months confinement, and a BCD. The accused’s PTA had a confinement limitation of eight months. At trial, the accused successfully brought an Article 13 motion for his treatment while in pretrial confinement and was awarded ninety-two days Article 13 credit (day-for-day) as well as 102 days Allen credit, all of which the judge applied against the lesser sentence provided for in the PTA. In announcing the sentence, the judge initially announced a sentence, after incorporating the Article 13 credit of 202 days and then announced another sentence of 212 days after he was advised by the TC that the Article 13 violations did not begin until after day ten of the accused’s placement into pretrial confinement, thus reducing the Article 13 credit from 102 days to ninety-two days. Appellant argued that the judge, in increasing the sentence from 202 days to 212 days, unlawfully reconsidered the sentence. The CAAF held that the judge did not unlawfully reconsider the sentence. The sentence was always ten months. All that the judge did was correct his calculation of sentence credits and clarify his calculations.  Further, the judge did not err in applying the sentence credit to the lesser sentence provided for in the PTA. Recognizing the confusion created by its Rock decision, the court established a bright line rule for use by all courts effective 30 August 2002:

1.                   [I]n order to avoid further confusion and to ensure meaningful relief in all future cases after the date of this decision, this Court will require the convening authority to direct application of all confinement credits for violations of Article 13 or R.C.M. 305 and all Allen credit against the approved sentence, i.e., the lesser of the adjudged sentence or the sentence that may be approved under the pretrial agreement, as further reduced by any clemency granted by the convening authority, unless the pretrial agreement provides otherwise.

F.      United States v. Sherman, 56 M.J. 900 (A.F. Ct. Crim. App. 2002). Time spent in civilian confinement for offenses forming the basis of a subsequent court-martial warrant confinement credit under Allen.  See also United States v. West, 56 M.J. 626 (C.G. Ct. Crim. App. 2001).

IX.            DELIBERATIONS.  R.C.M. 1006

A.     What May be Considered.

1.                   Notes of the members.

2.                   Any exhibits.

3.                   Any written instructions.

a)   Instructions must have been given orally.

b)   Written copies, or any part thereof, may also be given to the members unless either party objects.

4.                   Pretrial agreement (PTA) terms. According to the Executive Summary of the MJA 2016, the MJA 2016 will change R.C.M. 705 and R.C.M. 1006 to provide that in a members sentencing case in which the MJ accepts a plea agreement with a sentencing limitation, the members must vote on a sentence in accordance with that limitation.

a)   Under the old rules, R.C.M. 705(e) prohibited disclosing the existence of a PTA to members.  Under the new provision, R.C.M. 705(f), the members may be informed of a PTA at the request of the accused or when the MJ finds it “manifestly necessary.” There is no explicit provision about disclosing the quantum to members.

b)   United States v. Schnitzer, 41 M.J. 603 (Army Ct. Crim. App. 1994), aff’d 44 MJ 380 (1996).  Mention of sentencing limitation in co-actor’s PTA constituted unlawful command influence and plain error. Rehearing on sentencing required. See United States v. Royster, 9400201 (Army Ct. Crim. App. 15 June 1995) (unpub.), limiting Schnitzer to its facts.

B.      Voting on Sentence. UCMJ art. 52, R.C.M. 1006.

1.                   Number of votes required:

a)   Death – unanimous.

b)   All other sentences – at least three-quarters of the members (this is a MJA 2016 change; prior to this any sentence less than confinement for confinement for more than ten years required only two-thirds of the members).

X.   ANNOUNCEMENT OF SENTENCE.  R.C.M. 1007

A.     Sentence worksheet is used to put the sentence in proper form (See Appendix 11, MCM, Forms of Sentences).

B.      President or military judge makes announcement.  United States v. Dodd, 46 M.J. 864 (Army Ct. Crim. App. 1997). Announcement by court-martial president of sentence did not include bad conduct discharge, and court adjourned. When president notified the military judge of incorrect announcement within two minutes of adjournment, judge convened a proceeding in revision to include bad conduct discharge. The Army Court noted that proceeding in revision inappropriate where it increases severity of sentence, no matter how clear that announcement was erroneous. NOTE: Court commends to trial judges practice of enforcing requirement that president mark out all inapplicable language on findings and sentence worksheets, rather than pursuing own means to clarify intended sentence of court.

C.      Polling prohibited (M.R.E. 606; R.C.M. 1007(c)).

XI.            IMPEACHMENT OF SENTENCE.  R.C.M. 1008.

A.     Policy: Strong policy against the impeachment of verdicts.

1.                   Promotes finality.

2.                   Encourages full and free deliberation.

B.      General rule: Deliberative privilege – court deliberations are privileged (M.R.E. 509). United States v. Langer, 41 M.J. 780 (A.F. Ct. Crim. App. 1995) (observing that post-trial questionnaire purportedly intended for feedback to counsel improperly invaded members' deliberative process).

C.      Exceptions: Court members' testimony or affidavits cannot be used to impeach the verdict except in three limited situations. R.C.M. 1008; M.R.E. 606. See United States v. Loving, 41 M.J. 213 (C.M.A. 1994).

1.                   Outside influence (e.g. bribery, jury tampering).

2.                   Extraneous prejudicial information.

a)   United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983) (holding that it was improper for court member visit to crime scene).

b)   United States v. McNutt, 62 M.J. 16 (2005).   The military judge improperly considered the collateral administrative effect of the “good-time” policy in determining Appellant’s sentence and this error prejudiced Appellant.  “Courts-martial [are] to concern themselves with the appropriateness of a particular sentence for an accused and his offense, without regard to the collateral administrative effects of the penalty under consideration.”  United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1998).  The general preference for prohibiting consideration of collateral consequences is applicable to the military judge’s consideration of the Army “good-time” credits.

3.                   Unlawful command influence.

a)   United States v. Carr, 18 M.J. 297 (C.M.A. 1984) (holding that it was unlawful command control for president to order a re-vote after a finding of not guilty had been reached).

b)   United States v. Accordino, 20 M.J. 102 (C.M.A. 1985) (observing that president of court can express opinions in strong terms and call for a vote when discussion is complete or further debate is pointless; but improper for him to use superiority of rank to coerce a subordinate to vote in a particular manner).

c)   United States v. Dugan, 58 M.J. 253 (2003). Post-trial, member submitted R.C.M. 1105/6 memorandum to defense counsel expressing several concerns, two of which raised potential UCI during the sentencing phase: that some members believed a punitive discharge was “a given” and that mention was made of a commanders call and that the commander (i.e., convening authority) would review the sentence in the case and know what they decided to do. On receipt of the memorandum, the defense counsel sought a post-trial 39a session, which the military judge denied, citing the deliberative privilege, and finding no UCI. The lower court affirmed. The CAAF directed a DuBay hearing to examine the allegation of UCI in the sentencing phase with the following limitations: questions regarding the objective manifestation of the members during deliberations was permitted whereas questions surrounding the subjective manifestations were not.

D.     Threshold relatively high.  See United States v. Brooks, 41 M.J. 792 (Army Ct. Crim. App. 1995) (observing that there must be colorable allegations to justify judicial inquiry, and even then the judge must be very cautious about inquiring into voting procedures).

XII.        RECONSIDERATION OF SENTENCE.  R.C.M. 1009

A.     Time of reconsideration.

1.                   May be reconsidered any time before the sentence is announced.

2.                   After announcement, sentence may not be increased upon reconsideration unless sentence was less than mandatory minimum.

3.                   United States v. Jennings, 44 M.J. 658 (C.G. Ct. Crim. App. 1996).  Error in sentence may be corrected if announced sentence not one actually determined by court-martial. But confusion of military judge’s intended sentence and application of Allen credit arose from comments by judge after court closed. If ambiguity exists on record as to sentence, must be resolved in favor of accused.

B.      Procedure for reconsideration.

1.                   Any member may propose reconsideration.

2.                   Proposal to reconsider is voted on in closed session by secret written ballot.

C.      Number of votes required.

1.                   With a view to increasing sentence – may reconsider only if at least a majority votes for reconsideration.

2.                   With a view to decreasing sentence – may reconsider if the following vote:

a)   For death sentence, only one vote to reconsider required.

b)   For all other sentences, the MJA 2016 will change the rule to require more than one-fourth of the members. 

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