                                    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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United States v. Satterley, No. 00-0283/AF




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.




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