TRIAL STAGES: Sentence and Punishment: Instructions

2013 (September Term)

United States v. Frey, 73 M.J. 245 (whether it is useful rather than confusing to also instruct members to use their knowledge of “the ways of the world” to assess the credibility of evidence is a matter of discretion for the military judge; however, what military judges cannot do is invite members to substitute their understanding of the “ways of the world” for evidence or for the military judge’s instructions on sentencing; one person’s perception of the ways of the world might vary dramatically from another’s, based on education, experience, and personal bias; the phrase “common sense” is sufficient, and more accurate, to convey the sort of personal knowledge members can rely upon when weighing evidence and formulating their decisions; though language encouraging members to rely upon their knowledge of the “ways of the world” is present in the Military Judges’ Benchbook, it was stricken from the 1984 version of the MCM and is not part of the current MCM). 

United States v. Talkington, 73 M.J. 212 (sex offender registration operates independently of the sentence adjudged and is a collateral consequence of the conviction alone, not the sentence; 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). 

(a military judge abuses his discretion when the instructions are based on an erroneous view of the law or are not tailored to the case’s facts and circumstances). 

(appellant is permitted to mention sex offender registration in his unsworn statement; in turn, the military judge has discretion to temper the unsworn statement with appropriate instructions). 

(while the military judge’s discretion in choosing whether to instruct upon collateral matters is broad, he or she is required to give legally correct instructions that are tailored to the facts and circumstances of the case). 

(in instructing the court members on how to make use of appellant’s unsworn statement in sentencing for sex offenses, the military judge did not abuse his discretion by placing the sex offender registration mentioned during appellant’s unsworn statement in its proper context, by 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). 

2012 (Septermber Term)

United States v. Riley, 72 M.J. 115 (although the Military Judges’ Benchbook is not binding as it is not a primary source of law, the Benchbook is intended to ensure compliance with existing law; an individual military judge should not deviate significantly from the instructions in the Benchbook without explaining his or her reasons on the record). 

United States v. Garner, 71 M.J. 430 (the military judge has an independent duty to determine and deliver appropriate instructions). 

(RCM 1005(a) provides that the military judge shall give the members appropriate instructions on sentence; RCM 1009(e)(1) provides that the military judge shall instruct the members on the procedure for reconsideration when a sentence has been reached by members and reconsideration has been initiated; the text of RCM 1009(e) provides that any member may propose reconsideration of a sentence but does not address whether a military judge can initiate reconsideration; the analysis to RCM 1009 in Appendix 21 of the MCM, however, indicates that when reconsideration is initiated by the military judge, a formal vote on reconsideration is necessary). 

(except in limited circumstances, RCM 1009 provides that a sentence may be reconsidered at any time before such sentence is announced in open session of the court; the review of the completed sentence worksheet by the military judge does not constitute an announcement of the sentence). 

(the confinement portion of the sentence worksheet that included both 35 years of confinement and confinement for life without eligibility for parole was clearly ambiguous as to the period of confinement adjudged, and the military judge did not err in returning the members to their deliberations to clarify the ambiguity; however, when the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence that included confinement for life, it was obvious that the panel had “reconsidered” the initial sentence and had adopted a sentence that was not reflected on the initial sentence worksheet; regardless of which of the two initial sentences the members intended, the second sentence either increased or decreased that sentence, and therefore reconsideration occurred; at that point, the military judge erred by not suasponte providing the members with appropriately tailored instructions for reconsideration and returning them to deliberations to ensure compliance with RCM 1009(e)). 

(based on a plain reading of the current RCM 1009 (with revisions promulgated in the 1995 MCM), the term “reconsideration” no longer applies to the clarification of an ambiguous sentence either before or after the sentence is announced in open session of the court). 

(the military judge’s error in failing to give reconsideration instructions after she examined the sentence worksheet, returned it to the members to clarify an ambiguity, and the members returned from their deliberations with a revised sentence worksheet that did not merely clarify the ambiguity but rather reflected a “new” sentence, was neither plain nor obvious error and, in any event, there was no prejudice; RCM 1009(e)(3) provides the procedures to be followed when a sentence is reconsidered and RCM 1009(e)(3)(A) specifically provides that the members may reconsider a sentence with a view of increasing it only if at least a majority vote for reconsideration; accordingly, if the initial sentence to confinement was thirty-five years, as urged by appellant, as opposed to confinement for life without eligibility for parole, reconsideration of that sentence with a view of increasing it would have required four of the seven members to vote for reconsideration; when the military judge provided her initial instructions on possible punishments to the members, she instructed them that a sentence of confinement for life required the concurrence of three-fourths or six members; because the “new” sentence that included confinement for life would have required more than a simple majority (four of seven), i.e., the concurrence of three-fourths of the members (six of seven), appellant was not prejudiced). 

2011 (Septermber Term)

United States v. Barnett, 71 M.J. 248 (once evidence of pretrial punishment was introduced during sentencing by the accused, in the interests of reliable and truthful sentencing, it was within the military judge’s discretion to initially instruct the members of the Article 13 credit and how it would be credited). 

(the military judge correctly responded to the members’ question about whether they could increase the accused’s sentence to offset the 100 days of pretrial confinement Article 13 credit the accused received by instructing the members that they had a duty to adjudge an appropriate sentence that they regarded as fair and just when imposed, not one whose fairness depended upon the actions of others; nothing in the instruction invited the members, either expressly or by inference, to either impose extra confinement to offset the pretrial confinement Article 13 credit or impose less confinement in consideration for the pretrial punishment).

(the military judge did not abuse his discretion in declining to specifically instruct the members that they could not increase the amount of the accused’s confinement to offset or nullify some or all of the accused’s pretrial confinement Article 13 credit, where the issue as to how the members should consider the credit was substantially covered in the instructions provided; if the military judge had instructed the members that they could not consider the Article 13 confinement credit in determining an appropriate sentence, that instruction would have been in conflict with the standard instruction properly informing the members that they should consider all matters in extenuation and mitigation as well as those in aggravation in determining an appropriate sentence). 

2010 (Septermber Term)

United States v. Eslinger, 70 M.J. 193 (retention evidence is classic matter in mitigation, which is expressly permitted to be presented by the defense in sentencing; however, there can be a thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge; concerns raised with respect to this distinction can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again). 

(a commander may testify in rebuttal to defense retention evidence that the accused’s retention is not a consensus view of the command, but it is essential for the military judge to be on guard for the possibility, intended or not, that a commander’s testimony could convey undue command influence to the members; while not an absolute requirement, a tailored instruction from the military judge can ameliorate these risks and clarify the scope of permissible opinions). 

United States v. Marsh, 70 M.J. 101 (generally, potential harm from improper comments can be cured through a proper curative instruction).

2005

United States v. Griggs
, 61 M.J. 402 (with respect to retention evidence offered by the defense on sentencing, any concerns raised about the thin line between an opinion that an accused should be returned to duty and the expression of an opinion regarding the appropriateness of a punitive discharge can be addressed with a tailored instruction focusing on the distinction between a punitive discharge, which is for the members to decide, and the willingness of a servicemember to serve with an accused again, which may mitigate the range of punishments available at courts-martial).

United States v. Barrier
, 61 M.J. 482 (an instruction may not suggest that the members may consider the possibility of convening authority action in determining an accused’s sentence). 

(if a military judge has not limited an accused’s unsworn statement that invokes sentence comparison, a military judge may instruct the members that in the military justice system: (1) the members are required to adjudge a sentence based upon their evaluation of the evidence without regard to the disposition of other cases; (2) to the extent that the system provides for sentence comparison, that function is not part of the members’ deliberations; it is a power assigned to the convening authority and Court of Criminal Appeals; and (3) in the course of determining an appropriate punishment, the panel may not rely upon the possibility of sentence reduction by the convening authority or the Court of Criminal Appeals). 

(it has long been the rule of law that the sentences in other cases cannot be given to court-martial members for comparative purposes; this rule seeks to keep courts-martial from becoming engrossed in collateral issues and recognizes the UCMJ’s emphasis on individualized consideration of punishment; proper punishment should be determined on the basis of the nature and seriousness of the offense and the character of the offender, not on many variables not susceptible of proof; here, in his unsworn statement on sentencing, the accused brought the sentence from another case to the attention of the members for comparative purposes; case law precludes such comparison; thus, the military judge acted within his discretion in instructing the members that the comparative sentencing information offered by the accused was irrelevant; this is so even though the military judge’s instruction effectively nullified this portion of the accused’s statement; because the information in question was not otherwise relevant as mitigation, extenuation, or rebuttal, it was beyond the scope of RCM 1001, and the military judge could correctly advise the members that the comparative sentencing information was irrelevant; there is a general preference for contextual instruction rather than outright preclusion).

United States v. McNutt, 62 M.J. 16 (although military judges and members should not generally consider collateral consequences in assessing a sentence, this is not a bright-line rule; in certain circumstances, it may be appropriate for the military judge to instruct on collateral matters).

(in deciding whether the military judge erred in giving instructions on collateral matters in sentencing, an appellate court will take a flexible approach, focusing on the military judge’s responsibility to give legally correct instructions that are tailored to the facts and circumstances of the case).   

(the availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members; however, in such a situation, the military judge should then instruct the members that although the possibility of parole exists in the military justice system, they cannot consider it in arriving at an appropriate sentence for the accused).

2003

United States v. Rasnick, 58 M.J. 9 (although the word "ineradicable" is an appropriate means of describing the future impact of a punitive discharge in an instruction to members on sentencing, it is not the exclusive means of doing so; instructions are sufficient to require members to consider the enduring stigma of a punitive discharge if they adequately advise the members that such a discharge is a severe punishment, that it would entail specified adverse consequences, and that it would affect the accused's future with regard to his legal rights, economic opportunities, and social acceptability).

United States v. Tschip, 58 MJ 275 (military judges have broad authority to give instructions on the meaning and effect of the accused’s unsworn statement, both to ensure that the members place such a statement in the proper context and to provide an appropriate focus for the members’ attention on sentencing).

(the military judge instructed the members that the subject of an administrative discharge was a collateral matter, that they should give that aspect of appellant’s unsworn statement due consideration, and that they had discretion to disregard the reference to an administrative discharge if they saw fit to do so; in view of appellant’s unfocused, incidental reference to an administrative discharge, the military judge did not err by providing instructions that placed appellant’s statement in the appropriate context for purposes of their decision-making process).

United States v. Miller, 58 MJ 266 (a military judge is required to give the members appropriate instructions on sentence; appropriate instructions must be tailored to the facts of a case and must include, in part, a statement that the members should consider all matters in extenuation, mitigation, and aggravation, whether introduced before or after findings, and matters under R.C.M. 1001(b)(1), (2), (3) and (5)).

(R.C.M. 1005 provides three separate bases for instructing on pretrial restraint: (1) trial counsel shall inform the court-martial of the data on the charge sheet relating to the duration and nature of any pretrial restraint; R.C.M. 1005(e)(5) then requires the military judge to instruct the members to consider this information; (2) R.C.M. 1005(e)(5) requires the military judge to instruct the members to consider personal data of the accused submitted by the trial counsel pursuant to R.C.M. 1001(b)(2); as noted above, trial counsel provided the court-martial with a Personal Data Sheet reflecting appellant’s pretrial restraint; and (3) although pretrial restraint is not specifically referenced in R.C.M. 1005(e)(5), the discussion to that rule states that tailored instructions should bring attention to any pretrial restraint imposed on the accused).

(we have previously held that the military judge’s rote sentencing instructions that omitted any instruction on considering pretrial confinement were inadequate as a matter of law).

(where an accused has served pretrial confinement, the military judge must instruct the members that the pretrial confinement is a factor to consider in fashioning an appropriate sentence).

(R.C.M. 1005 carries the President’s direction to instruct on pretrial confinement as a factor to consider in adjudging an appropriate sentence; a military judge must instruct that the members in adjudicating an appropriate sentence should consider pretrial confinement; because in this case the military judge did not instruct the members that they should consider appellant’s pretrial confinement in adjudging an appropriate sentence, the military judge erred; the instructions, as given, were inadequate as a matter of law).

(although appellant did not object to the instructions as given, waiver is inapplicable; we have held that R.C.M. 920(f)’s waiver rule is inapplicable to certain mandatory instructions such as reasonable doubt, the elements of the offenses, and affirmative defenses; similarly, we hold that R.C.M. 1005(f)’s rule of waiver does not serve to forfeit review of this issue; the military judge bears the primary responsibility for ensuring that mandatory instructions, including the pretrial confinement instruction mandated by the President in R.C.M. 1005(e) and by this Court’s decision in United States v. Davidson, 14 M.J. 81 (C.M.A. 1982), are given and given accurately).

(while counsel may request specific instructions, the military judge has substantial discretion in deciding on the instructions to give and whether the requested instruction is appropriate; this discretion must be exercised in light of correct principles of law as applied to the facts and circumstances of the case).

(denial of a requested instruction is error if: (1) the requested instruction is correct; (2) it is not substantially covered in the main charge; and (3) it is on such a vital point in the case that the failure to give it deprived the defendant of a defense or seriously impaired its effective presentation).

(turning to whether the military judge erred in not giving the requested pretrial confinement credit instruction in this case, appellant meets the first two requirements of the test; first, the requested instruction was correct; the military judge said he would use the "standard" instructions in the Benchbook and the standard pretrial confinement credit instruction is consistent with the instruction we approved in United States v. Balboa, 33 M.J. 304 (C.M.A. 1991); second, the pretrial confinement credit instruction was not covered elsewhere in the sentencing instructions; as noted, the military judge did not instruct on pretrial confinement as a sentencing factor and he did not instruct on pretrial confinement credit)

(however, in this case, the requested pretrial confinement credit instruction was not on such a vital point in the case that the failure to give it deprived the defendant of a defense or seriously impaired its effective presentation; in fact, the three days in pretrial confinement were a negligible part of the defense sentencing case; appellant did not highlight the nature or duration of his pretrial confinement as a mitigating factor; there was no evidence relating to appellant’s good conduct while incarcerated under civilian control; appellant did not even argue that the pretrial confinement should be considered in adjudging an appropriate sentence; under these circumstances, there was no abuse of discretion in not giving the requested pretrial confinement instruction).

(although the military judge erred by not giving the general sentencing instruction on pretrial confinement, and even if he erred by not giving the requested pretrial confinement instruction as he said he would, we are convinced that appellant suffered no prejudice; the record reveals no evidence to suggest that the nature of the pretrial confinement was unduly harsh or rigorous; in the scheme of the defense sentencing case, three days in pretrial confinement was de minimis; the issue of three days in pretrial confinement was obviously of little consequence to either party; finally, given the facts of this case, we note that the adjudged sentence was favorable to appellant; under the circumstances, appellant was not prejudiced by the absence of the standard Benchbook instructions on pretrial confinement and pretrial confinement credit).

2002

United States v. Burt, 56 MJ 261 (defense counsel’s tactical decision to reject the proposed instruction concerning loss of retirement benefits represented a logical choice which forced the members to come to grips with the hard decision of whether to impose a punitive discharge and strip appellant of his retirement pay and benefits without being told (and perhaps reassured) that the Secretary of the Air Force could override their sentence and allow appellant to retire and receive the fruits of that retirement).

United States v. Hopkins, 56 MJ 393 (the military judge must give the members appropriate instructions on sentence, including a statement that the members should consider certain designated matters, including all matters in extenuation and mitigation, and the judge must tailor his instructions on the sentence to the law and the evidence, just as in the case of prefindings advice).

(the military judge has considerable discretion in tailoring instructions to the evidence and law, and the decision as to how that discretion should be applied to statements of an accused, such as expressions of remorse, regret, or apology, depends on the facts and circumstances of each particular case).

(military judge did not abuse is discretion in tailoring sentencing instructions concerning appellant’s expression of remorse by making a general reference to his unsworn statement, rather than through a more particularized instruction, where:  (1) appellant's remarks were made in the course of an unsworn statement; (2) appellant was the only defense witness on sentencing, and his statement was relatively brief; (3) his expressions of remorse, regret, and apology were clear and direct and did not refer to unique or unusual facts that might have been overlooked by the members during sentencing deliberations; (4) neither the prosecution nor the defense placed significant reliance on appellant’s unsworn statement; and (5) military judge specifically mentioned appellant's unsworn statement as something the members should consider in their deliberations).

(an unsworn statement on sentencing is not made under oath, is not subject to cross-examination, and is not subject to the normal restrictions of the rules of evidence -- all of which argues for broad discretion in the military judge when determining how to tailor instructions to address an unsworn statement).

2001

United States v. Rush, 54 MJ 313 (military judge erred in refusing to give a defense-requested standard instruction on the ineradicable stigma of a punitive discharge without explaining the basis of his decision on the record).

(concern that military members be properly instructed as to the severe nature of a punitive discharge creates a duty for a military judge to explain why he or she refuses to give a standard instruction on the ineradicable stigma of a punitive discharge requested by the defense; meaningful appellate review on this important sentencing matter requires that a military judge articulate a reason for such a decision).

(failure of the military judge to give a defense-requested instruction on the ineradicable stigma of a punitive discharge is not constitutional error, but rather a violation of a Manual provision promulgated by the President to ensure a military accused a fair trial; such an error will be tested to determine whether it substantially influenced the sentence proceedings such that it led to a bad-conduct discharge being unfairly imposed).

(appellant was not prejudiced by failure of the military judge to give a defense-requested instruction on the ineradicable stigma of a punitive discharge where:  (1) other instructions indicated that a bad-conduct discharge was a severe punishment; (2) three of the four offenses for which appellant was found guilty were aggravated in nature and individually authorized a punitive discharge; (3) defense counsel conceded to the members that appellant would be otherwise stigmatized by reason of his felony conviction; and (4) the case was tried before experienced members who could reasonably be expected to appreciate the severity of this punishment on their own).

United States v. Boyd, 55 MJ 217 (a military judge’s decision whether to instruct on a specific collateral consequence of a sentence is reviewed for abuse of discretion).

(in all cases tried after July 10, 2001, military judges are required to give an appropriately tailored instruction on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it; military judges may deny a request for such instruction only in cases where there is no evidentiary predicate for it or the possibility of retirement is so remote as to make it irrelevant to determining an appropriate sentence).

(even if it was error to deny appellant’s request for an instruction on the impact of a punitive discharge on retirement benefits, any error was harmless where:  (1) the evidentiary predicate for an instruction on retirement benefits was minimal; (2) appellant tendered no evidence pertaining to the projected value of his retirement; (3) appellant did not mention his hopes for retirement in his two unsworn statements; (4) neither appellant nor his defense counsel asked the court to save appellant’s retirement; (5) the court members asked no questions about retirement benefits; (6) defense counsel made no mention of retirement benefits until the parties were reviewing proposed sentencing instructions; and (7) the focus of the defense sentencing case was on preserving appellant’s ability to continue with his drug rehabilitation program and not upon the possibility of military retirement).

(where there was no request for an instruction on the impact of a punitive discharge on temporary disability retirement, military judge did not commit plain error by failing to instruct sua sponte where there was no factual predicate before the members for an instruction on temporary disability retirement).

2000

United States v. Taylor, 53 MJ 195 (instructions accompanying the admission of evidence given at the time of introduction do not vanish from the record; they follow the exhibit and limit its value throughout the trial).

United States v. Becker, 53 MJ 229 (instructions at sentence rehearing included one permitting confinement in lieu of a dishonorable discharge and another covering voting procedures for periods of confinement in excess of ten years; while these instructions arguably increased appellant’s vulnerability to confinement which was more severe in the abstract than dishonorable discharge, the members were unaffected and any error was harmless in light of the fact that members adjudged only a bad-conduct discharge and no confinement).

United States v. Duncan, 53 MJ 494 (there is no bright-line rule prohibiting a military judge from instructing on collateral consequences of a court-martial conviction; rather the rule is flexible and focuses on the military judge’s obligation to give appropriate, legally correct instructions, tailored to the facts and circumstances).

(where members ask whether an accused will be required to participate in a rehabilitation program, it is appropriate for the judge to answer if he or she can draw upon a body of information that is reasonably available and which is rationally related to the sentencing considerations in RCM 1005(e)(5)).

(the availability of parole and rehabilitation programs are issues of general knowledge and concern, and as such they may be instructed upon, especially when requested by the members).

(where members interrupted deliberations to ask about the possibility of parole and rehabilitation programs, it was not an abuse of discretion for the military judge to give instructions because the inquiries were reasonably related to consideration of the nature of the offenses and to the possibility that the accused might be released in the future unreformed into civilized society – matters of crucial military concern which were properly addressed by the military judge).

(even if military judge erred by instructing on parole and rehabilitation programs, any error was harmless where the judge also instructed the members not to consider parole in arriving at an appropriate sentence and suggested that appellant would participate in rehabilitation programs as a matter of prison exigency).

United States v. Jenkins, 54 MJ 12 (improper sentencing argument can often be cured by an appropriate limiting instruction).

1999

United States v. Simoy, 50 MJ 1 (members must be instructed to vote first on the lightest proposed sentence).

United States v. Gray, 51 MJ 1 (read as a whole, military judge’s sentencing instructions informed the members that the finding that the extenuating and mitigating circumstances are substantially outweighed by the aggravating factors must be unanimous).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site