IN THE CASE OF
UNITED STATES, Appellee
v.
Raymond T. SATTERLEY, III, Airman First Class
U.S. Air Force, Appellant
No. 00-0283
Crim. App. No. 33214
United States Court of Appeals for the Armed Forces
Argued October 10, 2000
Decided June 18, 2001
SULLIVAN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and BAKER, JJ., joined. EFFRON, J.,
filed a dissenting opinion.
Counsel
For Appellant: Captain Shelly W. Schools (argued); Colonel Jeanne M. Rueth,
Lieutenant Colonel James R. Wise, and Major Thomas R. Uiselt (on brief);
Lieutenant Colonel Timothy W. Murphy.
For Appellee: Captain Christa S. Cothrel (argued); Colonel Anthony P. Dattilo
and Lieutenant Colonel Ronald A. Rodgers (on brief).
Military Judge: Steven A. Gabrial
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Satterley, 00-0283/AF
Judge SULLIVAN delivered the opinion of the Court.
During February of 1998, appellant was tried by a general
court-martial composed of officer members at Travis Air Force
Base, California. In accordance with his pleas, he was found
guilty of absence without leave, willful destruction of military
property (3 specifications), and larceny of military property (4
specifications), in violation of Articles 86, 108, and 121,
Uniform Code of Military Justice, 10 USC §§ 886, 908, and 921,
respectively. He was sentenced to a dishonorable discharge,
confinement for 42 months, total forfeitures, and reduction to
the lowest enlisted grade. On April 29, 1998, the convening
authority disapproved the forfeitures but otherwise approved the
sentence, and on December 14, 1999, the Court of Criminal Appeals
affirmed. 52 MJ 782 (1999).
On May 10, 2000, this Court granted review on the following
issue:
WHETHER THE MILITARY JUDGE ABUSED HIS
DISCRETION BY DENYING DEFENSE COUNSEL’S
REQUEST TO REOPEN THE DEFENSE CASE TO MAKE
AN ADDITIONAL UNSWORN STATEMENT TO ADDRESS
A COURT MEMBER’S QUESTION.
We hold that the military judge’s denial of the defense request
to make an additional unsworn statement was not an abuse of his
discretion. See United States v. Martinsmith, 41 MJ 343 (1995);
cf. United States v. Provost, 32 MJ 98 (CMA 1991).
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United States v. Satterley, 00-0283/AF
Appellant pleaded guilty to several specifications of
larceny, in violation of Article 121, UCMJ. As part of those
pleas, he entered into a stipulation of fact concerning the
stolen property. It was stipulated that he stole nine computers
but only five were recovered by the Government. (Prosecution
Exhibit 1). No other evidence was presented as to the
whereabouts of the four remaining computers. Prior to
sentencing, appellant made a lengthy unsworn statement which at
least indirectly referenced the unrecovered computers. He
stated: “Last fall I took several computers from buildings 241
and 242. I took them without permission and without leaving any
indication of their whereabouts.” (R. 242).
The Court of Criminal Appeals found additional facts
concerning the granted issue. It said:
I. Background
After both sides rested and the military
judge had given his instructions on
sentencing, members of the court-martial
posed several questions. One question was
what happened to the four laptop computers
not recovered by the government. Five
computers had been recovered. During an
Article 39(a), UCMJ, 10 USC § 839(a),
session, the military judge suggested to
counsel for both sides that the answer to
the member’s question is, “we don’t know.”
Defense counsel, however, responded:
DC: Right. There is no evidence.
I believe that you have the
discretion to allow us to answer
that question.
MJ: Oh.
DC: We have not decided yet what’s
in our client’s best interest.
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United States v. Satterley, 00-0283/AF
We’ve discussed it and we’d like to
talk about it. We do have the
right. I believe if he wanted to
tell them, the members can ask for
additional information.
MJ: That is true. But they can’t
ask somebody who has given an
unsworn statement.
DC: Exactly. But they can’t force
him to do it, but I think if he
wanted to volunteer that
information, he could.
MJ: Well the best I will allow you
to do, defense counsel, is if you
decide that you want to provide that
information to the court members, if
both sides are willing to stipulate
to that, then I will certainly allow
you to present a stipulation of
fact. Other than that, I am not
going to allow your client just to
answer a question like that. Even
though I agree, I think I could. He
gave an unsworn statement and as
I’ve instructed a couple of times,
they can’t interrogate him on that
or ask him any questions about that,
including a question like this. So
I am not inclined to let him just
answer it. But that doesn’t mean
that you two can’t work out a
stipulation of fact or even a
stipulation of expected testimony,
although I don’t know who it would
be the expected testimony of. But I
will let you worry about that
tonight and see if you can come up
with an answer to that.
The next morning, after determining the
counsel had no other suggestions for
answering the member’s question, the
military judge instructed the members
there was no evidence before them as to
the disposition of the other computers.
During the next Article 39(a), UCMJ,
session, trial defense counsel informed
the military judge that it appeared to him
that a court member was not happy with the
answer and offered to have his client say
what happened if the military judge
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United States v. Satterley, 00-0283/AF
wouldn’t prohibit his client from telling
the court members.
The military judge responded:
No, I didn’t say that. What I said
is he can’t provide that information
to them over the objection of the
trial counsel in the form of an
unsworn statement. 1/ If your
client wants to get on the stand and
testify under oath as to those
matters, I will let you reopen your
case on that. But then, of course,
he would be subject to cross-
examination by trial counsel and
questioning by the court members. I
will certainly consider that. Also
if both sides were able to work out
some kind of stipulation of fact, I
would certainly allow that as well.
Trial defense counsel then requested the
military judge provide the members a
curative instruction. Upon reconvening
with the members present, the military
judge instructed the members that the
information regarding the unrecovered
computers was not available, they were not
to speculate with regards thereto, and
then repeated the instruction on an
unsworn statement to ensure that no
adverse inference would be drawn against
the accused.
_________
1/
Trial counsel did not interpose an
objection.
52 MJ at 783-84 (emphasis added).
Appellant submitted a post-trial affidavit to this Court. He
asserted that he would have told the court members in an unsworn
statement that he “disposed of the four unrecovered computers by
placing them into two different dumpsters which were located off-
base in Fairfield, California.”
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United States v. Satterley, 00-0283/AF
___ ___ ___
Appellant contends that the military judge erred by “refusing
to permit the defense to reopen its case after resting in order
to make an additional unsworn statement.” (Final Brief at 6).
He notes that a similar issue was raised, but not decided, in
United States v. Martinsmith, 41 MJ at 349, and that various
service courts have split on this question. Compare United
States v. Whitt, 9 MJ 953, 958 (NCMR 1980) (an accused may
present further unsworn testimony), with United States v.
Blackmon, 39 MJ 1091, 1093 (ACMR 1994) (not an abuse of
discretion to deny further unsworn testimony). Appellant asserts
that the trial judge had discretion in this matter, but he argues
that the judge abused that discretion when the judge denied his
request without good cause. (Final Brief at 5-6); see United
States v. Satterley, 52 MJ at 784. 1
The unsworn statement of a military accused is provided for
in RCM 1001(c)(2)(A), Manual for Courts-Martial, United States
(1995 ed.). 2 It states:
(2) Statement by the accused.
(A) In general. The accused may
testify, make an unsworn statement, or
both in extenuation, in mitigation or to
1 The military judge did not hold that appellant was per se
barred from answering the members’ questions or responding to
those questions with an additional unsworn statement. (“I will
certainly allow you to present a stipulation of fact. Other than
that, I am not going to allow your client just to answer a
question like that. Even though I agree, I think I could.”) 52
MJ at 783 (emphasis added).
2 All Manual provisions are cited to the version applicable at
trial. The current version is unchanged unless otherwise
indicated.
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United States v. Satterley, 00-0283/AF
rebut matters presented by the
prosecution, or for all three purposes
whether or not the accused testified prior
to findings. The accused may limit such
testimony or statement to any one or more
of the specifications of which the accused
has been found guilty. This subsection
does not permit the filing of an affidavit
of the accused.
(Emphasis added); see also RCM 1001(c)(2)(C) (prohibition on
trial counsel cross-examination and member questioning an accused
on his unsworn statement but providing for rebuttal by
prosecution).
Here, appellant was initially allowed to make an unsworn
statement without any limitation by the military judge. Cf.
United States v. Rosato, 32 MJ 93, 95-96 (CMA 1991) (military
judge improperly limited unsworn statement of an accused based on
collateral consequences doctrine). However, after he rested his
case, he was not allowed to make a second unsworn statement in
response to later questions by court members. See United States
v. Martinsmith, 41 MJ at 348-49. We have held that it is error
under the above rules for a military judge to deny an additional
unsworn statement in surrebuttal circumstances. See United
States v. Provost, 32 MJ at 99 (holding additional unsworn
statement in surrebuttal must be permitted where Government
presented substantial evidence rebutting an accused’s initial
unsworn statement); see also RCM 1001(d) (rebuttal and
surrebuttal may continue in discretion of military judge).
This Court has considered a soldier’s right of allocution to
be a traditional and valuable right (see United States v. Rosato,
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United States v. Satterley, 00-0283/AF
supra at 96) and has broadly applied it in this light. See
United States v. Grill, 48 MJ 131, 133 (CMA 1998). Moreover, we
have long recognized a military judge’s general responsibility to
ensure a fair trial in light of the unique circumstances of the
case before him. See generally United States v. Graves, 1 MJ 50,
53 (CMA 1975). Accordingly, we conclude that there may be other
circumstances beyond legitimate surrebuttal which may warrant an
additional unsworn statement. See generally RCM 801(a)(3)
(“Subject to the code and this Manual, [the military judge shall]
exercise reasonable control over the proceedings to promote the
purposes of these rules and this Manual”); Mil. R. Evid. 611(a),
Manual, supra.
Nevertheless, whether such circumstances exist in a
particular case is a matter properly imparted to the sound
discretion of the trial judge. Id.; see also RCM 913(c)(5) and
921(b) (discretionary power of judge to reopen case). For
several reasons, we conclude that the military judge did not
abuse this discretion in refusing to allow appellant to make an
additional statement, not sworn under oath or subject to cross-
examination. See generally United States v. Travers, 25 MJ 61,
62-63 (CMA 1987) (general definition of a trial judge’s
discretion).
First, appellant had already exercised his right to make an
unsworn statement and elected not to particularly disclose the
whereabouts of the four missing computers in that statement. See
United States v. Martinsmith, 41 MJ at 349. Second, he also had
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United States v. Satterley, 00-0283/AF
rested his case, both sides had made closing arguments, and the
military judge had given final instructions to the court-martial
panel members. See generally United States v. Fisiorek, 43 MJ
244, 248 (1995) (delineating general considerations against
reopening a case). Third, the military judge gave protective
instructions that the requested information was not available and
no adverse inference should be drawn against appellant. Fourth,
whether the four computers were placed in off-base dumpsters, as
asserted by appellant in his post-trial affidavit, raised a
question of fact that could have been disputed by the
prosecution, thus belatedly protracting this litigation. See
United States v. Martinsmith, supra. Finally, the military judge
offered appellant reasonable alternatives to a second unsworn
statement which would promptly and reliably evidence the
whereabouts of the four computers, i.e., a stipulation of fact,
which had previously been used to evidence the whereabouts of the
five recovered computers, or sworn testimony. See Mil. R. Evid.
614. In these circumstances, we find that the judge did not
abuse his discretion in denying appellant’s request to make a
second unsworn statement.
This case is not like United States v. Provost, supra. As
noted above, we held there that it was error for a trial judge to
refuse to let the defense present an additional unsworn statement
in surrebuttal. However, in that case, the prosecution had
introduced substantial evidence rebutting the accused’s first
unsworn statement. See RCM 1001(c)(2)(A) (“The accused may
testify, make an unsworn statement, or both in extenuation, in
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United States v. Satterley, 00-0283/AF
mitigation or to rebut matters presented by the prosecution, . .
. .”) (emphasis added). This type of Manual violation was not
present in appellant’s case because the prosecution presented no
rebuttal evidence to appellant’s initial unsworn statement.
The decision of the United States Air Force Court of Criminal
Appeals is affirmed.
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EFFRON, Judge (dissenting):
The members of a court-martial panel serve as the decision
makers on findings and sentence. Art. 52, UCMJ, 10 USC § 852.
Members of the court-martial may interrogate witnesses through
the submission of questions to the military judge. Mil. R. Evid.
614(b), Manual for Courts-Martial, United States (2000 ed.); see
also Art. 46, UCMJ, 10 USC § 846 (providing that members of a
court-martial, trial counsel, and defense counsel have an equal
opportunity to obtain witnesses and other evidence). Given the
critical role of the court-martial panel, the nature of the
questions posed by members is a matter of vital importance to
the parties.
In a larceny case, if the members seek to ask a question
during findings or sentencing concerning the disposition of the
property at issue, the accused has the right to address that
matter during his or her unsworn statement on sentencing,
regardless of whether evidence has been introduced on that
matter. RCM 1001(c)(2)(C), Manual, supra; United States v.
Rosato, 32 MJ 93 (CMA 1991). The Government then has the
opportunity to submit matter in rebuttal, and the accused may
make a further unsworn statement in surrebuttal. RCM
United States v. Satterley, No. 00-0283/AF
1001(c)(2)(C); see United States v. Provost, 32 MJ 98 (CMA
1991).
In the context of the right to make a second unsworn
statement, we have emphasized that the opportunity of a military
accused to make an unsworn statement is a "valuable right" that
has been "generally considered unrestricted." Rosato, supra at
96, citing United States v. Partyka, 30 MJ 242, 246 (CMA 1990),
and William Winthrop, Military Law and Precedents 299 (2d ed.
1920 Reprint). That right is no less valuable when the members,
for the first time, raise an issue pertinent to sentencing after
an accused has provided an unsworn statement. Any concerns
about protracted litigation at that stage are not materially
different from the concerns that must be addressed when an
accused addresses the issue in his or her initial unsworn
statement. The military judge has the same means of controlling
the proceedings in either case.
Appellant in this case was deprived of the valuable right
to make an unsworn statement on a matter of import to the
sentencing authority. I would reverse and remand for a new
sentencing proceeding.
2