                        UNITED STATES, Appellee

                                    v.

              Korey J. TALKINGTON, Airman First Class
                     U.S. Air Force, Appellant

                               No. 13-0601

                          Crim. App. No. 37785

       United States Court of Appeals for the Armed Forces

                       Argued December 17, 2013

                         Decided April 7, 2014

RYAN, J., delivered the opinion of the Court, in which ERDMANN
and STUCKY, JJ., joined. BAKER, C.J., filed a separate opinion
concurring in the result, in which OHLSON, J., joined.


                                 Counsel

For Appellant: Captain Thomas A. Smith (argued); Lieutenant
Colonel Jane E. Boomer and Captain Travis K. Ausland.

For Appellee: Captain Matthew J. Neil (argued); Colonel Don M.
Christensen; Lieutenant Colonel C. Taylor Smith and Gerald R.
Bruce, Esq. (on brief); Major Charles G. Warren.



Military Judge:    Jefferson B. Brown



     THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Talkington, 13-0601/AF


     Judge RYAN delivered the opinion of the Court.

     We   granted   Appellant’s    petition   to   review   the    following

issue:

     WHETHER THE MILITARY JUDGE ERRED BY INSTRUCTING THE
     MEMBERS THAT CONSIDERATION OF SEX OFFENDER
     REGISTRATION IS “NOT A MATTER BEFORE THEM” AND
     “FRAUGHT WITH PROBLEMS.”

     Sex offender registration is a collateral consequence of

the conviction alone, not the sentence.        While an accused may

raise a collateral consequence in an unsworn statement, United

States v. Rosato, 32 M.J. 93, 95-96 (C.M.A. 1991), our precedent

also makes clear that the military judge may instruct the

members essentially to disregard the collateral consequence in

arriving at an appropriate sentence for an accused.          United

States v. Barrier, 61 M.J. 482, 485-86 (C.A.A.F. 2005); United

States v. Tschip, 58 M.J. 275, 277 (C.A.A.F. 2003).          Because the

military judge took such action here, the decision of the United

States Air Force Court of Criminal Appeals (AFCCA) is affirmed.

                              I.    FACTS

     The facts relevant to the granted issue are few.             Contrary

to his pleas, a general court-martial composed of officer and

enlisted members convicted Appellant of two specifications of

attempted aggravated sexual assault and one specification of

attempted abusive sexual contact, both in violation of Article

80, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 880



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United States v. Talkington, 13-0601/AF


(2012). 1   The underlying facts were that Appellant touched the

victim’s breasts and penetrated her vagina while he believed

that she was sleeping, and thus substantially incapable of

declining participation.    At the court-martial, in his unsworn

statement during sentencing, Appellant stated:    “I will have to

register as a sex offender for life . . . I am not very sure

what sort of work I can find.”

     The military judge instructed the members as follows on how

to make use of Appellant’s unsworn statement:

     The court will not draw any adverse inference from the fact
     that the accused has elected to make a statement which is
     not under oath. An unsworn statement is an authorized
     means for an accused to bring information to the attention
     of the court, and must be given appropriate consideration.

          The accused cannot be cross examined by the
     prosecution or interrogated by court members or me upon an
     unsworn statement, but the prosecution may offer evidence
     to rebut statements of fact contained in it. The weight
     and significance to be attached to an unsworn statement
     rests within the sound discretion of each court member.
     You may consider that the statement is not under oath, its
     inherent probability or improbability, whether it is
     supported or contradicted by evidence in the case, as well
     as any other matter that may have a bearing upon its
     credibility. In weighing an unsworn statement, you are
     expected to use your common sense and your knowledge of
     human nature and the ways of the world.

          The accused’s unsworn statement included the accused’s
     personal belief that he would be administratively
     discharged if he did not received [sic] a punitive
     discharge and his belief that he would be required to

1
  Consistent with his plea, the panel acquitted Appellant of a
charge of sodomy, in violation of Article 125, UCMJ, 10 U.S.C. §
925 (2012).

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United States v. Talkington, 13-0601/AF


     register as a sex offender. An unsworn statement is a
     proper means to bring information to your attention, and
     you must give it appropriate consideration. Your
     deliberations should focus on an appropriate sentence for
     the accused for the offense of which the accused stands
     convicted.

          However, as a general evidentiary matter, evidence
     regarding possible registration as a sex offender or the
     potential of an administrative discharge, and the
     consequences thereof, would be characterized as a
     collateral consequences [sic], and thus inadmissible
     outside of the context of an unsworn statement. This is so
     because your duty in sentencing is to adjudge an
     appropriate sentence for this accused, under these facts,
     in accordance with my instructions. Possible collateral
     consequences of the sentence, beyond those upon which you
     are instructed, should not be a part of your deliberations
     other than as I have earlier discussed.

          As to sex offender registration requirements, they may
     differ between jurisdictions such that registration
     requirements, and the consequences thereof, are not
     necessarily predictable with any degree of accuracy. Even
     if such requirements were predictable, whether or not the
     accused will be or should be registered as a sex offender
     and whether he will be or should be administratively
     discharged is not a matter before you. Rather, determining
     an appropriate sentence for this accused, in accordance
     with my instructions, is your charge. In short, use of
     this limited information is fraught with problems.
     Therefore, after due consideration of the unsworn statement
     and my prior instructions [on] the nature of an unsworn
     statement, the consideration and weight you give the
     reference is up to you in your sound discretion.

     Appellant’s counsel objected to the military judge’s

proposed instruction related to sex offender registration on the

ground that its language:

     goes beyond just a matter of letting the members know that
     this is evidence only appropriate through an unsworn
     statement or commentary in an unsworn statement and goes to
     another level really insinuating to the members that they
     should give it very little weight.

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United States v. Talkington, 13-0601/AF


Defense counsel continued:

       collateral matters that are brought up by the accused are
       matters that may be considered and that’s in light of
       [United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998),
       which] mentions nothing regarding the military judge in any
       regard trying to limit or dissuade them from paying
       attention to what’s in the accused’s unsworn statement.

The military judge overruled the objection explaining, “The

court does not read [Grill] as broadly as you do.”

       The maximum available sentence for Appellant’s convictions

was forty-seven years and a dishonorable discharge; trial

counsel argued for a sentence of not less than three years of

confinement and a dishonorable discharge.     Manual for Courts-

Martial, pt. IV, paras. 4.e, 45.f(2), 45.f(5) (2008 ed.).     The

members adjudged a sentence of confinement for eight months, a

bad-conduct discharge, forfeiture of all pay and allowances, and

reduction to E-1.

       The AFCCA affirmed the findings and sentence as approved by

the convening authority.    United States v. Talkington, No. ACM

37785, 2013 CCA LEXIS 357, at *27, 2013 WL 1858584, at *8 (A.F.

Ct. Crim. App. Apr. 26, 2013) (unpublished).     On appeal to the

AFCCA, Appellant did not raise the issue granted by this Court.

                           II.   DISCUSSION

       The Court reviews a military judge’s sentencing

instructions for an abuse of discretion.      Barrier, 61 M.J. at

485.    In this context, a military judge abuses his discretion



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United States v. Talkington, 13-0601/AF


when the instructions are based on an erroneous view of the law

or are not tailored to the case’s facts and circumstances.

United States v. Duncan, 53 M.J. 494, 499 (C.A.A.F. 2000);

United States v. Greaves, 46 M.J. 133, 139 (C.A.A.F. 1997).

Appellant argues that the military judge erred in his

instruction related to Appellant raising the prospect of sex

offender registration in his unsworn statement.    In his view,

the military judge abused his discretion in instructing the

members that sex offender registration was irrelevant in

arriving at the sentence in his case for two reasons.    First, he

asserts that consideration of sex offender registration during

sentencing is required by this Court’s holding in United States

v. Riley, 72 M.J. 115, 116-17 (C.A.A.F. 2013).    Brief for

Appellant at 3-4, United States v. Talkington, 73 M.J. __

(C.A.A.F. 2014).   Second, and relatedly, he asserts that sex

offender registration is similar to the impact of a punitive

discharge on retirement benefits, which the Court has deemed

akin to “a direct and proximate consequence of the sentence,”

United States v. Griffin, 25 M.J. 423, 424 (C.M.A. 1988), so

that an instruction to the members to disregard it as a

collateral consequence was an abuse of discretion.    We disagree.

     The holding in Riley is inapposite in this separate

context, and the military judge’s instructions were not an abuse

of discretion under the precedent of this Court.

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United States v. Talkington, 13-0601/AF


                                 A.

     Rule for Courts-Martial (R.C.M.) 1001 permits the

presentation of matters in extenuation, mitigation, or rebuttal

by an accused through an unsworn statement.    R.C.M. 1001(c).

Despite the limits of this rule, the Court has, on the one hand,

held that the right to present an unsworn statement is

“generally considered unrestricted.”    Rosato, 32 M.J. at 96.     On

the other hand, an unsworn statement “may be tempered by

appropriate instructions from the military judge.”    Barrier, 61

M.J. at 484.    This Court has explained that while the right of

allocution includes the right to present evidence that is not

relevant as extenuation, mitigation, or rebuttal, the military

judge may “put the information in proper context by effectively

advising the members to ignore it.”    Id. at 486 (internal

quotation marks omitted).

     A collateral consequence is “‘[a] penalty for committing a

crime, in addition to the penalties included in the criminal

sentence.’”    United States v. Miller, 63 M.J. 452, 457 (C.A.A.F.

2006) (alteration in original) (quoting Black’s Law Dictionary

278 (8th ed. 2004) (citing as 1999 in original)), overruled in

part by Riley, 72 M.J. at 120-21. 2   “The general rule concerning


2
  In contrast, a “[m]atter in extenuation of an offense serves to
explain the circumstances surrounding the commission of an
offense,” R.C.M. 1001(c)(1)(A), and a matter in mitigation is:


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United States v. Talkington, 13-0601/AF


collateral consequences is that ‘courts-martial [are] to concern

themselves with the appropriateness of a particular sentence for

an accused and his offense, without regard to the collateral

administrative effects of the penalty under consideration.’”

Griffin, 25 M.J. at 424 (alteration in original) (quoting United

States v. Quesinberry, 12 C.M.A. 609, 612, 31 C.M.R. 195, 198

(1962)).   The collateral consequences of a court-martial do not

constitute R.C.M. 1001 material, and while they may be

referenced in an unsworn statement, Rosato, 32 M.J. at 96

(C.M.A. 1991) (finding error where a military judge precluded an

appellant from mentioning collateral consequences of a court-

martial –- a rehabilitation program -- in an unsworn statement),

they should not be considered for sentencing.   United States v.

McNutt, 62 M.J. 16, 19-20 (C.A.A.F. 2005); see also Barrier, 61

M.J. at 486 (noting general preference for a “contextual

instruction” for matters raised in an unsworn statement “rather



     introduced to lessen the punishment to be adjudged by the
     court-martial, or to furnish grounds for a recommendation
     of clemency. It includes the fact that nonjudicial
     punishment under Article 15 has been imposed for an offense
     growing out of the same act or omission that constitutes
     the offense of which the accused has been found guilty,
     particular acts of good conduct or bravery and evidence of
     the reputation or record of the accused in the service for
     efficiency, fidelity, subordination, temperance, courage,
     or any other trait that is desirable in a servicemember.

R.C.M. 1001(c)(1)(B). All of the above examples of mitigation
focus on particular traits of the accused, or prior punishment.

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United States v. Talkington, 13-0601/AF


than outright preclusion”); Tschip, 58 M.J. at 277 (permitting

military judge to instruct that administrative discharge was a

collateral matter when referenced in unsworn statement and that

the members had discretion to disregard the reference to the

collateral matter); Griffin, 25 M.J. at 424 (citing Quesinberry,

12 C.M.A. at 612, 31 C.M.R. at 198).

      This is both because the proper focus of sentencing is on

the offense and the character of the accused, R.C.M. 1001(b)-

(c), and “to prevent ‘the waters of the military sentencing

process’ from being ‘muddied’ by ‘an unending catalogue of

administrative information.’”   Rosato, 32 M.J. at 96 (quoting

Quesinberry, 12 C.M.A. at 612, 31 C.M.R. at 198). 3

      To be sure, there is a “tension between the scope of pre-

sentencing unsworn statements and the military judge’s

obligation to provide proper instructions.”    Barrier, 61 M.J. at

487 (Erdmann, J., concurring in the result).   However, Appellant

does not take issue with this precedent or ask us to overrule

it.   Instead he argues that sex offender registration is not a

collateral consequence and, therefore, the precedent that

3
  Sex offender registration directly implicates these concerns of
“minitrials” and “muddied waters” because the requirements for
sex offender registration are not “precise” and “[e]ach state
has different rules as to when registration is required and how
compliance is monitored and measured,” which make it difficult
for members to make an informed decision. United States v.
Datavs, 70 M.J. 595, 604 (A.F. Ct. Crim. App. 2011), aff’d on
other grounds, 71 M.J. 420, 422, 426 (C.A.A.F. 2012).

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United States v. Talkington, 13-0601/AF


recognizes a military judge’s discretion to put collateral

consequences in a proper context does not apply in this case.

                                B.

     Appellant argues that after this Court’s recent Riley

decision, sex offender status is no longer a collateral

consequence for any purpose.   Riley is not so broad.    In Riley,

the trial defense counsel and the military judge did not inform

the appellant that pleading guilty to kidnapping of a child

would subject her to registration as a “sex offender,” and this

Court held that “in the context of a guilty plea inquiry, sex

offender registration consequences can no longer be deemed a

collateral consequence of the plea.”   Riley, 72 M.J. at 121.

     Riley, however, was a guilty plea case in which we sought

to apply the reasoning of Padilla v. Kentucky, 559 U.S. 356

(2010), to the different fact of sex offender registration.     72

M.J. at 121.   Consequently, we considered the providence of a

guilty plea where neither the defense counsel nor the military

judge informed the defendant that pleading guilty would require

sex offender registration.   Riley, 72 M.J. at 118-19.    We

concluded that it was not a provident plea, and emphasized the

requirement to ensure a “plea was a ‘knowing, intelligent act[]

done with sufficient awareness of the relevant circumstances and

likely consequences.’”   Id. at 122 (alteration in original)

(quoting Brady v. United States, 397 U.S. 742, 748 (1970)).

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United States v. Talkington, 13-0601/AF


     Appellant now asks us to extend the Riley rationale to

sentencing and prohibit a military judge from informing the

members that they need not consider sex offender registration in

arriving at a sentence.   We decline this invitation for two

reasons.   First, unlike the context of a plea inquiry, nothing

about the sentence has any impact on the requirement or duty to

register as a sex offender.   Sex offender registration operates

independently of the sentence adjudged and remains a collateral

consequence.   See, e.g., 42 U.S.C. § 16911 (2012) (defining sex

offender categories by the fact of conviction and the length of

corresponding maximum sentences available, and not the sentences

imposed); cf. United States v. Pena, 64 M.J. 259, 265 (C.A.A.F.

2007) (“[T]he collateral administrative consequences of a

sentence, such as early release programs, do not constitute

punishment for purposes of the criminal law.”).

     Moreover, and despite Appellant’s arguments to the

contrary, sex offender registration is markedly different than

retirement benefits, which can directly be affected by the

imposition of a punitive discharge -- loss of military

retirement benefits is one possible result of the sentence

itself, as opposed to the conviction.     See, e.g., Griffin, 25

M.J. at 424 (“[I]t is only in a theoretical sense that the

effect a punitive discharge has on retirement benefits can be

labeled collateral. . . . [T]he impact on benefits -- whatever

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United States v. Talkington, 13-0601/AF


it may be -- can only be a direct and proximate consequence of

the sentence.”); see also Greaves, 46 M.J. at 139 (“[W]here a

servicemember is perilously close to retirement . . . a general

collateral-consequences instruction disregarding the effects of

a punitive discharge on retirement will not suffice.”).   Thus,

unlike the loss of retirement benefits, which would be a direct

consequence of the imposition of a punitive discharge, there is

no causal relation between the sentence imposed and the sex

offender registration requirement.   Whether Appellant received

no punishment or the maximum available punishment he would be

required to register as a sex offender based on the fact of his

conviction alone.

     Second, even after Padilla v. Kentucky, which considered

the question whether it was ineffective assistance of counsel

not to inform an accused of the deportation consequences of a

guilty plea, a case whose reasoning we relied upon in Riley, 72

M.J. at 119-21, the Supreme Court continues to categorize sex

offender registration as a collateral consequence.   Chaidez v.

United States, 133 S. Ct. 1103, 1108 n.5 (2013) (stating that

the “effects of a conviction commonly viewed as collateral

include . . . sex offender registration”).   While this has no

bearing on our treatment of sex offender registration in the

context of determining the providence of a guilty plea within

the military justice system, we have been presented with no

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United States v. Talkington, 13-0601/AF


unique military reason to extend the reasoning of Padilla or

Riley further.   In the context of sentencing, Miller remains

good law to the extent it recognizes that “the requirement that

Appellant register as a sexual offender is a consequence of his

conviction that is separate and distinct from the court-martial

process.”   Miller, 63 M.J. at 457.

                                C.

     While Riley altered this Court’s treatment of sex offender

registration in the context of the providence of a guilty plea,

it did not alter this Court’s definition of a collateral

consequence, and sex offender registration remains one outside

the context of a guilty plea inquiry.   See, e.g., United States

v. Lindsey, No. ACM 37894, 2013 CCA LEXIS 503, at *16-*17, 2013

WL 3353908, at *5 (A.F. Ct. Crim. App. June 18, 2013)

(unpublished) (distinguishing Riley’s conclusion that sex

offender registration is not a collateral consequence in a

guilty plea context from collateral consequences at sentencing).

     Consequently, Appellant was permitted to mention sex

offender registration in his unsworn statement.   See Duncan, 53

M.J. at 499; Rosato, 32 M.J. at 96; see also United States v.

Macias, 53 M.J. 728, 732 (A. Ct. Crim. App. 1999) (concluding

that a military judge abused her discretion when she failed to

permit the accused to mention in an unsworn statement that the

accused may have to register as sex offender for a non-sex

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United States v. Talkington, 13-0601/AF


offense crime).   In turn, the military judge had discretion to

“temper[]” the unsworn statement with “appropriate

instructions.”    Barrier, 61 M.J. at 484.   “While the military

judge’s discretion in choosing whether to instruct upon such

‘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.”   Duncan, 53 M.J. at 499.

     Relevant to the arguments raised on appeal, nothing in the

instructions complained of was an inaccurate statement of either

the law or the facts.   Our precedent authorized the military

judge to place 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.    See

Barrier, 61 M.J. at 485-86; Rosato, 32 M.J. at 96.     Accordingly,

the military judge did not abuse his discretion.

                           III.   DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Talkington, No. 13-0601/AF


     BAKER, Chief Judge, with whom OHLSON, Judge, joins

(concurring in the result):

     Like the consequence of deportation, sex offender
     registration is not a criminal sanction, but it is a
     particularly severe penalty. . . . Moreover, sex
     offender registration is intimately related to the
     criminal process. The automatic result of sex
     offender registration for certain defendants makes it
     difficult to divorce the penalty from the conviction.

United States v. Riley, 72 M.J. 115, 120-21 (C.A.A.F. 2013)

(internal quotation marks omitted).    Appendix 4 to Enclosure 2

of Department of Defense Instruction 1325.07 1 makes this point

clearly and emphatically:

     A Service member who is convicted in a general or
     special court-martial of any of the offenses listed in
     Table 4, must register with the appropriate
     authorities in the jurisdiction . . . in which he or
     she will reside, work, or attend school upon leaving
     confinement, or upon conviction if not confined.

Emphasis added.   Indeed, sex offender registration is required

in all fifty states. 2   Sex offender registration also addresses

at least four of the recognized purposes of sentencing:

1
  See Dep’t of Defense, Instr. 1325.07, Administration of
Military Correctional Facilities and Clemency and Parole
Authority app. 4 Enclosure 2 (Mar. 11, 2013) [hereinafter Dep’t
of Defense Instr. 1325.07].
2
  The Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act (the Wetterling Act) required
all states to implement a sex offender and crimes against
children registry. Pub L. No. 103-322, 108 Stat. 2038 (1994)
(codified as amended at 42 U.S.C. § 14071 (2006)), repealed by
Sex Offender Registration and Notification Act, Pub. L. No. 109-
248 § 129, 120 Stat. 587, 600 (2006). It was enacted as part of
the Federal Violent Crime Control and Law Enforcement Act of
1994. Id.
United States v. Talkington, No. 13-0601/AF


rehabilitation of the wrongdoer, punishment of the wrongdoer,

protection of society and preservation of good order and

discipline. 3   Furthermore, it may be the most significantly

stigmatizing and longest lasting effect arising from the fact of

conviction.     Therefore, in my view, it is not good enough to

call it collateral and leave it to the members to sort out what

to make of it based on their own perceived, received, and often

erroneous understanding of registration.     A tailored and

appropriate instruction is required.     The question raised in

this case is how, if at all, should a military judge instruct on

the subject in the context of an unsworn statement.

       At present, military judges are left to instruct their way

through and around the rocks and shoals of inconsistent case law

and ambiguous rules.     On the one hand, members must give due

consideration to an accused’s unsworn statement, which in this

case made reference to sex offender registration.     Moreover,

because sex offender registration is addressed to the purposes

of sentencing, in many cases it is also appropriate as

mitigation, and potentially as rebuttal.     The right to present

an unsworn statement is “generally considered unrestricted.”

United States v. Rosato, 32 M.J. 93, 96 (C.M.A. 1991).        On the

other hand, as the Court highlights, sex offender registration

is a collateral consequence of conviction rather than a

3
    See United States v. Ohrt, 28 M.J. 301, 305 (C.M.A. 1989).
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United States v. Talkington, No. 13-0601/AF


consequence of sentencing. 4   United States v. Talkington, __ M.J.

__, __ (2) (C.A.A.F. 2014).    This results in the Court’s

conclusion that sex offender registration is collateral and thus

inadmissible, and should not be part of their deliberations.

Id. at __ (14).

     I would conclude instead that a tailored instruction is

warranted, which recognizes the role of the unsworn statement,

the fact that registration is intimately related to the criminal

process, as well as the fact that sex offender registration is

not in fact a sentence imposed at court-martial.     The military

judge tried to thread this needle.    The military judge made a

genuine effort to distinguish the reference to sex offender

registration contained in the unsworn statement from evidence

regarding possible registration as a sex offender.    However,

this is a legal subtlety likely lost on the lay members of the

court-martial.    The result was a confusing, if not an

inconsistent and contradictory instruction.    The members were

instructed that “[t]he weight and significance to be attached to

an unsworn statement rests within the sound discretion of each

court member” and that “you must give it [the unsworn statement]

appropriate consideration,” while also being instructed that


4
  Therefore, I agree with the Court that Riley, which addressed
the providence of a guilty plea, does not stand for the
proposition that sex offender status is no longer a collateral
consequence for any purpose. Talkington, __ M.J. at __ (10).
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United States v. Talkington, No. 13-0601/AF


“whether or not the accused will be or should be registered . .

. is not a matter before you” and that “use of this limited

information is fraught with problems.”   This may have

unintentionally signaled the members that notwithstanding his

previous instruction, they really ought to ignore the reference

contained in the unsworn statement altogether.   As a result, I

would conclude that the instruction was internally inconsistent

and confusing and therefore erroneous.

     In my view, and as recognized in Riley and Dep’t of Defense

Instr. 1325.07, sex offender registration is integral to the

penalty landscape for certain sexual offenses.   Therefore, an

accused should be able to refer to sex offender registration in

an unsworn statement with an accompanying instruction at least

to the extent that the Dep’t of Defense Instr. 1325.07 addresses

the issue.   For example, a military judge might make the

following instructional references:

     Under DOD Instructions, when convicted of certain offenses,
     including the offenses here, the accused must register as a
     sex offender with the appropriate authorities in the
     jurisdiction in which he resides, works, or goes to school.

     Sex offender registration is required in all fifty states;
     however, sex offense registration requirements may differ
     between jurisdictions. As a result, the registration
     requirements and the consequences of doing so are not
     necessarily predictable.

     Sex offense registration is a consequence of conviction;
     however, it is not a sentence adjudged at court-martial.



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United States v. Talkington, No. 13-0601/AF


     Thus, while the consideration and weight you give the
     reference in Appellant’s unsworn statement to sex offender
     registration is up to you and in your discretion, your duty
     is to determine the criminal sentence to adjudge in this
     case, if any, for the offenses for which the accused has
     been found guilty.

This approach avoids the dilemma faced by the military judge in

this case of trying to navigate the accused’s right to make an

unsworn statement about a collateral matter that is nonetheless

a direct consequence of conviction.   As importantly, it prevents

the members from applying their own diverse understandings of

the sex offender registration requirement.

     Having found instructional error, I nonetheless concur in

the result.   The maximum authorized sentence for Appellant’s

convictions included forty-seven years of confinement and a

dishonorable discharge.   The Government argued for a sentence of

not less than three years of confinement and a dishonorable

discharge.    Manual for Courts-Martial, United States pt. IV,

paras. 4.e, 45.f(2), 45.f(5) (2008 ed.) (MCM).    The members

adjudged eight months of confinement, a bad-conduct discharge,

forfeiture of all pay and allowances, and reduction to E-1.

Thus, Appellant has not demonstrated sentencing prejudice from

any confusion generated by the instruction in this case.

Moreover, as the military judge noted, Appellant in fact never

did offer evidence that he would have to register under Dep’t of




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United States v. Talkington, No. 13-0601/AF


Defense Instr. 1325.07 or relevant state law.   Therefore,

Appellant was not prejudiced on sentencing and I would affirm.




                                6
