UNITED STATES, Appellee
Steven TSCHIP, Airman First Class
U.S. Air Force, Appellant
Crim. App. No. ACM S30016
United States Court of Appeals for the Armed Forces
Argued April 9, 2003
Decided June 11, 2003
EFFRON, J., delivered the opinion of the Court, in which CRAWFORD, C.J., GIERKE, BAKER, and ERDMANN, JJ., joined.
For Appellant: Captain Antony B. Kolenc (argued); Colonel Beverly B. Knott and Major Terry L. McElyea (on brief).
For Appellee: Captain Shannon J. Kennedy (argued); Colonel LeEllen Coacher and Lieutenant Colonel Lance B. Sigmon (on brief).
Military Judge: Kurt D. Schuman
This opinion is subject to editorial correction before final publication.
A special court-martial composed of officer and enlisted members, convicted Appellant, pursuant to his pleas, of two specifications of dereliction of duty and one specification of dishonorably failing to maintain sufficient funds in his credit union account to pay for checks he uttered, in violation of Articles 92 and 134, Uniform Code of Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 892, 934 (2000). He was sentenced to a bad-conduct discharge, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Criminal Appeals affirmed in an unpublished opinion.
On Appellantís petition, we granted review of the following issue:
I. UNSWORN STATEMENTS DURING SENTENCING
During sentencing proceedings in a court-martial, the accused has the right to "testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution[.]" Rule for Courts-Martial 1001(c)(2)(A) [hereinafter R.C.M.]. Under R.C.M. 1001(c)(2)(C) the unsworn statement may be either oral or written, and it may be presented either by the accused or by counsel. The accused may not be cross-examined by the prosecution or questioned by the court-martial upon it, but the prosecution may introduce evidence to rebut statements of facts therein. Id. Although the scope of an unsworn statement may include matters that are otherwise inadmissible under the rules of evidence, the right to make an unsworn statement is not wholly unconstrained. See, e.g., United States v. Jeffery, 48 M.J. 229, 230 (C.A.A.F. 1998). Military judges have broad authority to give instructions on the "meaning and effect" of the accusedís unsworn statement, both to ensure that the members place such a statement "in the proper context" and "to provide an appropriate focus for the membersí attention on sentencing." United States v. Grill, 48 M.J. 131, 133 (C.A.A.F. 1998).
II. FACTUAL BACKGROUND
During sentencing, Appellant presented testimony and documentary evidence in extenuation and mitigation of his offenses, including an unsworn statement. The unsworn statement covered a wide range of issues. Appellant apologized to his wife, his family and the members of his unit; gave brief highlights from his childhood; talked about his fatherís service of twenty-seven years in the Army; detailed his involvement in the Air Force Junior Reserve Officer Training Corps in high school and Army Reserve Officer Training Corps in college; discussed his efforts to make restitution to the victims of his crimes; and outlined his service on active duty in the Air Force. Appellant concluded his unsworn statement by reading the following passage to the members:
In closing argument, defense counsel contended that a punitive discharge would be disproportionate, that Appellant possessed good rehabilitation potential, that the shame of a federal conviction constituted significant punishment, and that other punishment options were much more appropriate, such as "taking stripes," "restriction to base," or "hard labor without confinement." Defense counsel made no mention of the possibility of administrative discharge.
Following arguments by counsel, the military judge provided the members with instructions on sentencing, which tracked the instructions he previously reviewed with counsel. At the conclusion of instructions, the military judge asked whether either counsel objected to the instructions as given or wished to request any additional instructions. Both counsel responded in the negative.
In this appeal, Appellant contends that his right to give an unsworn statement was impermissibly impaired by the reference to administrative discharges in the military judgeís instructions. Such an issue is a question of law, which we review de novo. United States v. Hibbard, 58 M.J. 71, 75 (C.A.A.F. 2003). In the absence of an objection, we review deficiencies in the instruction for plain error. See United States v. Glover, 50 M.J. 476, 478 (C.A.A.F. 1999).
In the present case, Appellant made a passing, vague reference in his unsworn statement to the possibility that his commander might initiate administrative discharge proceedings against him. He did not specifically ask the members to take or refrain from any specific action in light of his comment, and defense counsel did not raise the subject of an administrative discharge during closing argument. Under these circumstances, we decline to speculate as to the message that Appellant was intending to convey to the members through a reference to an administrative discharge.
The military judge instructed the members that the subject of an administrative discharge was a collateral matter, that they should give that aspect of Appellantís 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 Appellantís unfocused, incidental reference to an administrative discharge, the military judge did not err by providing instructions that placed Appellantís statement in the appropriate context for purposes of their decision-making process. We need not decide whether the instructions provided by the military judge would be appropriate in a case involving different references to an administrative discharge. Under facts of this case, the instructions by the military judge did not constitute error, much less plain error. See Glover, 50 M.J. at 478.
The decision of the United States Air Force Court of Criminal Appeals is affirmed.