(concurring in part and dissenting in part):
I concur with the majority in affirming the findings, but I must respectfully dissent from the decision to set aside the sentence. I do not agree that the military judge abused his discretion by denying the appellant the opportunity to tell the members that a co-accused had been acquitted of similar charges. Since the case law and Rule for Courts-Martial 1001, Manual for Courts-Martial, United States (1998 ed.), support the military judge’s ruling, I can only surmise that the majority’s decision is based on speculation as to the direction our superior court may take on this issue in future eases, rather than reviewing the issue under the high degree of deference required by the clear abuse of discretion standard.
The Right of Allocution
An accused’s right of allocution is considered an important right, and its curtailment “is not to be lightly countenanced.” United, States v. Martinsmith, 41 M.J. 343, 349 (C.A.A.F.1995). Although the right to make an unsworn statement is broadly construed, it is not wholly unconstrained. United States v. Grill, 48 M.J. 131 (C.A.A.F.1998). “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.” Id. at 133.
Since the accused’s right to make a statement in allocution is not Constitutionally required, it is not only granted, but also defined, by the Manual for Courts-Martial. See United States v. Partyka, 30 M.J. 242, 246 (C.M.A.1990); Grill at 48 M.J. 134 (Crawford, C.J., dissenting). Our superior Court has observed that the President has the authority to provide guidance in the implementation of this right. Grill, at 48 M.J. 133. Thus, any existing constraints on the right of allocution are likely to be found in the Manual for Courts-Martial.
The Manual establishes three relevant subject areas for the accused’s right to make a statement, whether sworn or unsworn. They are the same three subject areas allowed for the defense case during the pre-sentencing *559phase of trial: matters in extenuation, in mitigation, and in rebuttal of matters presented by the prosecution. R.C.M. 1001(c)(1) and (2). Evidence that falls outside these broad categories is, by definition of these terms, irrelevant to the defense case on presentencing — even for an accused’s unsworn statement. Thus, the President has already provided guidance for limiting unsworn statements by defining “matter in extenuation” and “matter in mitigation” in R.C.M. 1001(c)(1)(A) and (B), respectively. Unless relevant for rebuttal, the fact that a co-accused was acquitted of the same or similar charges is not within the permissible scope of an unsworn statement, because it does not fall under the definition of either of these terms.
Discussion
A co-accused’s acquittal is not a “matter in extenuation,” because it does not “serve[ ] to explain the circumstances surrounding the commission of the offense.” R.C.M. 1001(c)(1)(A) (emphasis supplied). Indeed, since the same Manual provision specifically limits “matter in extenuation” to “reasons for committing the offense which do not constitute a legal justification or excuse ” (emphasis supplied), the Rule impliedly bars such evidence inasmuch as it tends to argue that the accused should have been justified or excused by the court’s findings on the merits.
A co-accused’s acquittal is not a “matter in mitigation” either, since this category is defined as evidence “introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency.” R.C.M. 1001(c)(l)(B)(emphasis supplied). The logical relevance of a co-accused’s acquittal is not an argument that the accused should receive a lesser punishment, either by the judge or later by the convening authority. It is simply that the accused should not be found guilty at all, since another person facing similar charges and evidence was found not guilty.
There was no allegation in this case that the prosecution presented evidence that could be rebutted by informing the members of a co-actor’s acquittal. The result is that FC3 Elliott’s acquittal did not fit under any of the three permissible categories of “matters to be presented by the defense” under R.C.M. 1001(c). This information was therefore outside the proper scope of the appellant’s right of allocution, according to the President’s existing guidance implementing this Manual-based right.
In addition to R.C.M. 1001(c), the military judge could properly rely on the case of United States v. Teeter, 16 M.J. 68, 73 (C.M.A.1983). There our superior court held that an accused cannot use the right of allocution to challenge the court’s findings of guilt in a litigated ease. As the court stated in that case,
We are aware of no obligation, either under the Constitution or elsewhere, to provide an accused two chances to defend on the merits. In our opinion, the procedures established by the Uniform Code of Military Justice, as implemented by the Manual for Courts-Martial, are generally sufficient to satisfy due-process requirements. As appellant’s alibi testimony did not even marginally relate to matters in extenuation or mitigation, the military judge did not err in excluding such irrelevant testimony. (Citing United States v. Tobita, 3 C.M.A. 267, 12 C.M.R. 23, 1953 WL 2174 (1953)).
Teeter involved an accused’s sworn testimony rather than an unsworn statement, but it is still controlling precedent. The evidence ruled inadmissible in Teeter was excluded because it was outside the relevant scope of inquiry during the sentencing stage of trial, not because it violated technical rules of evidence inapplicable to an unsworn statement. Simply put, R.C.M. 1001(e)(1) defines the permissible subject matter under the Manual for any statement by the accused, sworn or unsworn, and information that challenges a court’s findings of guilt is neither logically relevant to the issue of an appropriate sentence nor allowed by the stated parameters of the Rule.
United States v. Grill
The majority’s reliance on Grill to effectively overrule Teeter is misplaced. Grill was not a contested ease, and the excluded evidence in that ease could not have been construed to challenge the court’s findings of *560guilt, based as they were on the accused’s own plea. The evidence excluded by the military judge in that case also dealt with more lenient dispositions of co-actors, but not with an acquittal, and thus was properly admissible as matter in mitigation; that is, evidence “introduced to lessen the punishment to be adjudged by the court-martial, or to furnish grounds for a recommendation of clemency.” Finally, the majority seems to read Grill’s language as ushering in a new era in which unsworn statements are not only free of many of the evidentiary rules of admissibility, but are also unlimited in their scope as regards to relevance.
I am concerned that the majority’s holding will open a “Pandora’s box” of mischief, by eliminating one of the very few clear limitations on unsworn statements. If it is an abuse of discretion for a military judge to rely on the three broad categories of R.C.M. 1001(c) as well as case precedent in ruling inadmissible portions of an accused’s unsworn statement, what is to stop an accused from using the unsworn statement to mount a massive attack on the findings, using everything that was not allowed in under the Military Rules of Evidence? Why not make bald assertions of dubious relevance or reliability concerning a rape victim’s past sexual conduct? Why not use the unlimited scope of an unsworn statement to “gray mail” the Government in a classified case by threatening to bring out highly classified information otherwise not admissible, or to introduce privileged and inadmissible information in a politically sensitive case tried in a foreign country? If courts are reluctant to enforce the few existing limitations on an unsworn statement as they are clearly set forth in the Manual that created this right, the unsworn statement will become an all-powerful sword, rather than the protective shield it was designed to be.
Conclusion
The military judge correctly discerned the difference between the mitigating effect of relatively light punishment for some of the appellant’s co-actors, on one hand, and the attack on the findings of guilt posed by informing the members of another co-actor’s acquittal, on the other. At the very least, it was within the military judge’s discretion to determine that the proffered information was not extenuating, mitigating, or proper rebuttal evidence. R.C.M. 1001(c) and Teeter support his decision, and with such existing legal authority, I cannot agree with the majority’s conclusion that he clearly abused his discretion. I therefore respectfully dissent.
Chief Judge OLIVER took final action in this case prior to his retirement on 1 July 2003.