(concurring in part, dissenting in part).
I respectfully dissent as to the majority’s resolution of the assignment of error regarding the military judge’s limitation on the appellant’s unsworn statement. I believe that the military judge abused his discretion and committed prejudicial error. As a result, I would set aside the sentence and authorize a rehearing on sentence. However, I concur with the majority’s denial of the other seven assignments of error. See United States v. Sowell, 59 M.J. 552 (N.M.Ct.Crim.App.2003).
*960A. Unsworn Statement
The appellant contends that the military judge erred to her substantial prejudice when he would not permit her to mention in her unsworn statement that a co-conspirator, Fire Controlman Third Class (FC3) Michelle Elliott, had been acquitted of the same allegations.
FC3 Elliott was acquitted, at a special court-martial the week before the appellant’s trial, of the same two specifications of which the appellant was convicted. Fellow co-eonspirators, Airman Apprentice (AA) David Schwey and Seaman (SN) Kevin Cormier, were not tried by court-martial or otherwise disciplined for their roles in the misconduct, but were administratively separated prior to the appellant’s trial.
B. Military Judge’s Ruling
After the appellant was convicted, the trial counsel (TC) asked the military judge to warn all parties not to reveal FC3 Elliott’s acquittal to the court members during sentencing. The trial defense counsel (TDC) objected, contending that the appellant should be allowed to mention the co-conspirator’s acquittal in her unsworn statement for consideration of the members in determining a proper sentence. In support, the TDC cited the case of United States v. Grill, 48 M.J. 131 (C.A.A.F.1998).
The military judge stated his ruling on the record as follows:
MJ: I’m not going to allow it. She can mention she [FC3 Elliott] went to court-martial. I’ll make specific findings in that regard.
I find what we’re doing here [the appellant’s request to mention the acquittal] is a direct impeachment of the members’ determination. I don’t allow that if I make a determination. I have no problem with her saying that the others got off easy and you can identify that in the unsworn statement. You can — and you can identify the fact that Petty Officer Elliott went to a court-martial, but I personally don’t believe, and I don’t believe this particular case [Grill] constrains me in limiting that right regarding the outcome of that other court-martial. Like I said, had there been an outcome in the sentence of the coconspirator [sic] I believe you’re on solid ground. I don’t see it in this case. I find that that would be information that, under 403, would be irrelevant and a direct impeachment of the verdict of the members at this time and I’m not going to allow it.
I further find that the case that you’ve cited to me [Grill] addresses disparate treatment by various convening authorities or a particular convening authority in addressing similar conduct and treatment of those particular individuals. And in this case you have full reign to discuss what did or did not happen to Cormier and Schwey and you have free reign to indicate that FC3 Elliott went to a court-martial, but you’re not going to provide information regarding the verdict.
DC: So, sir, if I understand your ruling correctly, my client can mention in her unsworn statement that FC3 Elliott went to a court-martial, period, but cannot mention anything beyond that?
MJ: I am not going to allow the verdict to be mentioned. And you can mention all you want about Schwey not going to anything, but I think the issue is disparate treatment and I don’t think it’s been disparate. I find that the notion of acquittal versus non-acquittal under the same general, almost identical facts to be inappropriate in a sentencing determination. I’m not going to allow that.
Record at 418-19.
The TDC did not make an offer of proof, nor did the military judge request an offer of proof, regarding how the appellant would have mentioned the acquittal in her unsworn statement if she had been permitted to do so. Nor was there any discussion of a limiting instruction.
The appellant complied with the military judge’s ruling by stating the following in her unsworn statement:
Please consider neither Mr. Cormier or Mr. Schwey were charged with any crime. You asked in one of your questions while Petty Officer Elliott was on the stand if *961she went to court. Yes, she went to court-martial last week.
Record at 423.
C. Standard of Review
During sentencing, the accused may “testify, make an unsworn statement, or both in extenuation, in mitigation or to rebut matters presented by the prosecution, or for all three purposes____” Rule for Courts-Martial 1001(c)(2)(A), Manual for Courts-Martial, United States (1998 ed.). “The accused may make an unsworn statement and may not be cross-examined by the trial counsel upon it or examined upon it by the court-martial. The prosecution may, however, rebut any statements of facts therein.” R.C.M. 1001(c)(2)(C).
We review the military judge’s decision to restrict the unsworn statement for an abuse of discretion, as we would for any other ruling admitting or excluding evidence. United States v. Sullivan, 42 M.J. 360, 363 (C.A.A.F.1995). In doing so, however, we must also consider that “an accused’s right to make an unsworn statement ‘is a valuable right ... [that has] long been recognized by military custom’ and that has been ‘generally considered unrestricted.’ ” Grill, 48 M.J. at 132 (quoting United States v. Rosato, 32 M.J. 93, 96 (C.A.A.F.1991)). In recent years, our superior court has consistently found error when the military judge limited the contents of an unsworn statement. The trend is clearly toward an expansive view of what can be included in unsworn statements. See Grill; United States v. Britt, 48 M.J. 233 (C.A.A.F.1998); United States v. Jeffery, 48 M.J. 229 (C.A.A.F.1998); Rosato.
D. Impeachment of the Findings
The majority holds that the military judge did not err in limiting the unsworn statement, because mentioning the acquittal would have been an impermissible challenge to the members’ findings of guilty, citing United States v. Teeter, 16 M.J. 68 (C.M.A.1983) and United States v. Mamaluy, 10 C.M.A. 102, 106, 27 C.M.R. 176, 180, 1959 WL 3587 (1959).
I agree with the majority that an appellant does not have an unlimited right to say anything in an unsworn statement. The majority notes that an appellant does not have the right to reveal otherwise inadmissible classified documents, privileged communications, or the reputation of a rape victim. I also agree that an appellant is not permitted to relitigate a defense, as the appellant attempted to do in Teeter. However, I believe that Mamaluy (holding that sentences in other cases cannot be given to court-martial members for comparative purposes) has either been overruled by Grill (as a dissenter opines) or the holding simply does not apply to unsworn statements:
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. If, in the future, the Manual’s traditional, largely unfettered right of allocution should lead to a plethora of mini-trials, the President has the authority to provide appropriate guidance in the Manual for Courts-Martial. Under the present rules, however, as we noted in [United States v.] Partyka, 30 M.J. [242] at 246 [C.M.A.1990], “(S)o long as this valuable right is granted by the Manual for Courts-Martial, we shall not allow it to be undercut or eroded.” See also United States v. Martinsmith, 41 MJ 343, 349 (1995)(right to make unsworn statement “considered an important right at military law, whose curtailment is not to be lightly countenanced”).
Grill, 48 M.J. at 133.
The majority finds that revealing the acquittal would have been, or was intended to be, an impeachment of the conviction. There was no indication in the record that the appellant intended to argue that she was innocent. Rather, the appellant offered the information for sentencing purposes. But, if she had tried to impeach the verdict, the military judge could have stopped her or advised the court members to disregard her comments.
Our superior court has expressed confidence that military judges are able to tailor instructions to avoid confusing and misleading the court members with information contained in an unsworn statement. “Military *962judges 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.’” United States v. Tschip, 58 M.J. 275 (C.A.A.F.2003)(quoting Grill, 48 M.J. at 133).
The U.S. Air Force Court of Criminal Appeals has approved a tailored instruction for situations in which the accused discusses the results of related cases or other such matters in his unsworn statement. United States v. Friedmann, 53 M.J. 800 (A.F.Ct.Crim.App.2000) , rev. denied, 54 M.J. 425 (C.A.A.F.2001) . “When an accused uses his virtually unrestricted unsworn statement to raise issues for the members to consider, the military judge does not err in providing the court members accurate information on how to appropriately consider those matters in their deliberations.” Friedmann, 53 M.J. at 803-04.
Further, I do not believe that the Grill case is limited to disparate treatment as stated by the military judge. The Grill opinion did not discuss disparate treatment. Rather, the court found that it was prejudicial error not to allow the appellant to mention the sentence of probation given to one of the co-conspirators, as well as the decision not to prosecute the other two. Thus, Grill refers both to sentence or punishment comparison as well as to disparate treatment of co-conspirators.
I would hold that Grill would allow an appellant to mention in an unsworn statement that a co-conspirator was acquitted, and thus, received no punishment.
D. Prejudicial Error
The majority holds that, even if the military judge erred in limiting the appellant’s unsworn statement, there was no prejudicial error because the excluded information was logically offered only to impeach the verdict by suggesting that the court members had no legal right to sentence her at all.
I find otherwise. It appears to me she offered the information in order to show that she was the only one of four co-conspirators that was to be sentenced.
In my opinion, such information, if presented, would have had a substantial impact on her sentence. Thus, I would find that the military judge committed prejudicial error.
Accordingly, I would have set aside the sentence and authorized a rehearing on sentence.
Judge VILLEMEZ and Judge SUSZAN concur.