UNITED STATES, Appellee

                                       v.

                         Stacie M. SOWELL, Seaman
                           U.S. Navy, Appellant


                                 No. 03-0688
                          Crim. App. No. 9901777


       United States Court of Appeals for the Armed Forces

                           Argued March 8, 2005

                        Decided September 30, 2005

BAKER, J., delivered the opinion of the Court, in which GIERKE,
C.J., and EFFRON, J., joined. ERDMANN, J., filed a separate
concurring opinion. CRAWFORD, J., filed a dissenting opinion.



                                   Counsel

For Appellant: Captain James D. Valentine, USMC (argued);
Captain E.V. Tipton, USMC.

For Appellee: Captain Glen R. Hines, USMC (argued); Lieutenant
Colonel William K. Lietzau, USMC, and Lieutenant Frank L. Gatto,
JAGC, USNR (on brief).



Military Judge:     Mark S. Utecht




        THIS   OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sowell, No. 03-0688


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by members at a special court-martial.

Contrary to her pleas, she was convicted of conspiracy and

larceny in violation of Articles 81 and 121, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 881, 921 (2000),

respectively.   These offenses arose from the theft of two

government personal computers.    The adjudged and approved

sentence included a bad-conduct discharge, confinement for

thirty days, and a fine of $550.       This Court granted review on

the following issue:

     WHETHER THE LOWER COURT ERRED WHEN IT HELD THAT THE
     MILITARY JUDGE DID NOT ABUSE HIS DISCRETION WHEN HE
     RESTRICTED APPELLANT’S UNSWORN STATEMENT BY NOT
     ALLOWING HER TO STATE THAT HER CO-CONSPIRATOR HAD BEEN
     ACQUITTED.

     Two of Appellant’s three alleged co-conspirators were not

criminally charged and were subsequently administratively

separated from the service.   The third, Fire Controlman Third

Class (FC3) Elliott, was tried by a separate court-martial prior

to Appellant’s trial on substantively identical charges and

found not guilty.   Elliott testified on Appellant’s behalf at

trial, stating among other things that she and Appellant never

talked about stealing computers, that she herself never took any

computers, and that she never saw Appellant take any computers.

Subsequent to her testimony, a panel member proffered the

following question for Elliott:    “What legal actions have been


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United States v. Sowell, No. 03-0688


taken/or are pending against you for this incident?”   Trial

counsel objected to the relevance of the question, and the

military judge disallowed it.

     Trial counsel later challenged the credibility of Elliott’s

testimony during her findings argument stating:

     Motives. Let’s talk about motives just for a second.
     I’ll come back to that later when I talk about each of
     the witnesses and any motive they may have. Petty
     Officer Elliott. Who has the biggest motive to come
     in here and say they didn’t do it? The co-
     conspirator, that’s who. Not Miller, not Schwey, the
     co-conspirator. She’s the one that has the best
     motive to lie . . . . She wants to help her friend
     and if her friend goes down?

Emphasis added.   Defense counsel made no objection and Appellant

was ultimately found guilty.

     At a session held pursuant to Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2000), following the announcement of the

findings, trial counsel noticed that Elliot was present in the

courtroom.   She then asked the military judge to warn the

defense that Elliot’s acquittal should not be disclosed to the

members.   In response, defense counsel asserted that if his

client wished to mention it in her unsworn statement, it was her

right to do so.   When pressed for authority for this position,

defense counsel cited United States v. Grill, 

(C.A.A.F. 1998), arguing that the right to allocution is broad

and included the right to reference Elliott’s acquittal in the

unsworn statement.   The military judge granted the Government’s


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United States v. Sowell, No. 03-0688


request finding that reference to Elliott’s acquittal would be

“irrelevant and a direct impeachment of the verdict of the

members. . . .”

     On appeal, a split panel of the United States Navy-Marine

Corps Court of Criminal Appeals reversed the military judge’s

ruling and remanded for a rehearing on sentence.   United States

v. Sowell, 

(N-M. Ct. Crim. App. 2003).     The

Government sought and obtained an en banc rehearing.    On

rehearing, a 4-3 majority reversed the earlier panel’s decision,

reinstating the military judge’s ruling and Appellant’s

sentence, on the ground that any mention of Elliott’s acquittal

in her unsworn statement would have challenged the decision of

the members on findings and was otherwise beyond the “relevant

scope of inquiry . . . as defined by R.C.M. 1001(c)(1).”     United

States v. Sowell, 

, 959 (N-M. Ct. Crim. App. 2004.)

     Whatever the general rule regarding verdict impeachment and

sentence comparison, Appellant’s case is distinct, because the

Government implied that Elliott was guilty of the very offense

for which the accused was on trial.    Therefore, we now consider

whether the military judge correctly limited Appellant’s

statement regarding the disposition of Elliott’s case because

such information would have impeached the verdict, or

alternatively, whether the military judge erred because this




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United States v. Sowell, No. 03-0688


information was a fair response in rebuttal to trial counsel’s

findings argument.

                             Discussion

       We review a military judge’s decision to restrict an

accused’s sentencing statement for abuse of discretion.      See

generally 

.       The Manual for Courts-Martial,

United States (2002 ed.), provides an accused with the right to

“testify, make an unsworn statement, or both in extenuation, in

mitigation or to rebut matters presented by the prosecution . .

. .”   Rule for Courts-Martial (R.C.M.) 1001(c)(2)(A).     This

traditional right has been described as “broadly construed” and

“largely unfettered.”   

.      However, while

“the scope of an unsworn statement may include matters that are

otherwise inadmissible under the rules of evidence, the right to

make an unsworn statement is not wholly unconstrained.”      United

States v. Tschip, 

, 276 (C.A.A.F. 2003); United

States v. Jeffery, 

, 230 (C.A.A.F. 1998).

       In Grill, while describing the right of allocution as

largely unfettered, we also stated that the right, while

“generally considered unrestricted,” “was not wholly

unrestricted.”   

added); see also 

.   In United States v. Teeter, 

, 72-73

(C.M.A. 1983)(no obligation to provide accused two chances to

defend on the merits through unsworn statement), and more


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United States v. Sowell, No. 03-0688


recently in United States v. Barrier, 61 M.J.__ (C.A.A.F.

2005)(information in unsworn statement must be relevant as

extenuation, mitigation or rebuttal), we identified specific

limitations on the right of allocution.   We also recognized that

the unsworn statement remains a product of R.C.M. 1001(c) and

thus remains defined in scope by the rule’s reference to matters

presented in extenuation, mitigation, and rebuttal.   And, as

early as United States v. Tobita, 

, 271-72, 

, 27-28 (1953), it was held that on sentencing, the

accused cannot impeach the findings.

     The Government argues before this Court, as it did before

the military judge, that reference to Elliott’s acquittal would

have impeached the findings, as Appellant and Elliott were

charged with the same offenses involving the same facts.

Moreover, the Government argues, such information would also

have been precluded under United States v. Mamaluy, 

, 

(1959), as impermissible sentence comparison.

     Ordinarily, such information might properly be viewed in

context as impeaching the members’ findings.   As the Court of

Criminal Appeals concluded, Teeter and Mamaluy remain good law.

However, we conclude under the limited circumstances of this

case, that the Government’s argument on findings opened the door




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United States v. Sowell, No. 03-0688


to proper rebuttal during Appellant’s unsworn statement on

sentencing.1

      The function of rebuttal is “to explain, repel, counteract

or disprove the evidence introduced by the opposing party.”

United States v. Banks, 

, 166 (C.M.A. 1992)(quoting

United States v. Shaw, 

, 271, 

, 51

(1958)(Ferguson, J., dissenting)).         Trial counsel was aware of

Elliott’s acquittal on the same facts the week before.

Nonetheless, her references to Elliott as a co-conspirator, a

term connoting criminal liability, during her findings argument

implied that Elliott was guilty of the same offense as

Appellant, and therefore had a motive to lie in order to protect

herself from prosecution.       Absent the inference raised in trial

counsel’s argument, the military judge might well have found

reference to Elliot’s acquittal irrelevant to any sentencing

issue.   However, the members were instructed on sentencing that

“all the evidence you have heard in this case is relevant on

sentencing.”    R.C.M. 1001(f)(2).        It is true that argument by

counsel is not evidence.       However, it would seem in this case,

with the members having been instructed concerning all the

evidence, that the right to rebuttal on sentencing should extend



1
 We note that during her unsworn statement Appellant helped to mitigate the
concern the military judge may have had about impeachment of the guilty
findings when she said during her statement, “I accept your judgment against
me.”


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United States v. Sowell, No. 03-0688


to allowing comment upon trial counsel’s characterization of

that evidence during findings.        After all, R.C.M. 1001(c)(2)(A)

affords an accused the right to “rebut matters presented by the

prosecution,” suggesting a somewhat broader reading than one

limiting the right only to rebut “evidence.”2           Thus, the tenor of

trial counsel’s argument opened the door to the accused to

“explain” Elliot’s true status.        Moreover, in this case,

Elliot’s status was already an issue with at least one member of

the panel and remained an open question in light of Appellant’s

reference to the other two co-conspirators.           In this context,

Appellant should have been permitted an opportunity to fairly

respond to the implications of trial counsel’s argument on

findings.    In the terms of the well-worn metaphor, the

Government was not only using Teeter as a shield to prevent the

members from learning of Elliott’s acquittal, but also as a

sword to imply that Appellant’s co-conspirator was guilty.              This

was unfair in the context presented.

      We are cognizant that Appellant failed to object to trial

counsel’s argument during findings.         This could suggest that

counsel concluded that the implications of the argument had not

registered with the members.        However, at least one member had

already asked a specific question regarding the disposition of



2
 Of course, an accused would be prohibited from attempting to relitigate the
findings in the guise of rebuttal. See Tobita, 

, 

.


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United States v. Sowell, No. 03-0688


Elliott’s case.    Moreover, defense counsel squarely placed the

issue before the military judge on sentencing.    Finally, during

her unsworn statement, Appellant was allowed to make specific

reference to the disposition of the cases of two of her three

co-actors.   Elliott’s status, however, was left hanging and

subject to the members’ speculation.

     In this context, the military judge erred by not allowing

Appellant to address the disposition of Elliott’s case.    This

might have been followed by an instruction to the members on the

appropriate inferences that could be drawn from the information,

citing the principles enunciated in Teeter and Mamaluy.     In

turn, any statement made by Appellant on this point would have

been subject to rebuttal.

     Having determined that the military judge erred, we must

determine whether the error had a “substantial influence” on the

sentence adjudged.   United States v. Pablo, 

, 359

(C.A.A.F. 2000).   Although the members might have drawn the

inference that Elliott was acquitted or received no punishment

on account of her presence in the courtroom, they might also

have reasonably inferred that she had yet to be tried for the

same offense as Appellant.   Because Elliott was an alleged co-

conspirator with Appellant based on the same facts, trial

counsel’s argument and its implications necessarily reached to

the core of Appellant’s own case.     As a result, we are not


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United States v. Sowell, No. 03-0688


convinced that, in the narrow circumstances of this case, the

failure to permit Appellant to address the disposition of

Elliott’s case in her unsworn statement did not have a

substantial influence on the members’ sentencing decision.

                             DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to the findings but reversed

as to the sentence.   The record of trial is returned to the

Judge Advocate General of the Navy.     A rehearing on sentence may

be ordered.




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United States v. Sowell, No. 03-0688/NA


     ERDMANN, Judge (concurring):

     I concur.   I write separately to emphasize my view

that the right to make an unsworn statement is specifically

defined and limited by the Manual for Courts-Martial,

United States (2002 ed.) (MCM).     The scope of pre-sentence

allocution through an unsworn statement includes

extenuation, mitigation, and matters in rebuttal.    Rule for

Courts-Martial 1001(c)(2)(A), MCM.     See United States v.

Barrier, 61 M.J. ___, ___ (C.A.A.F. 2005)(Erdmann, J.,

concurring in the result).   I agree that the Government

opened the door for Sowell to refer to her co-actor’s

acquittal in an unsworn statement.    Sowell’s unsworn

reference to Elliott’s acquittal would have rebutted the

Government’s suggestion that as a “co-conspirator” Elliott

had a motive to lie.   Under the facts of this case, it was

prejudicial error for the military judge to exclude this

information from Sowell’s pre-sentence unsworn statement.
United States v. Sowell, No. 03-0688/NA


     CRAWFORD, Judge (dissenting):

     I respectfully dissent because the majority does not

examine the context in which this issue arises, mixes findings

with sentencing evidence, neglects the burdens that are placed

on the parties at various stages of the trial, and fails to

analyze the standard of review.

     Perhaps most importantly, this decision again raises a fair

question regarding the extent to which courts-martial are to be

tried according to established rules of law and then evaluated

on appeal according to those same rules.    In what has become a

familiar theme of late,1 I again must question how we can expect

the Rules for Courts-Martial and the Military Rules of Evidence

to provide structure and stability to military trials when this

Court continues to apply those rules with a malleability that

must lend to our decisions, from a practitioner’s point of view,

certain characteristics of a sweepstakes.



1
  See, e.g., United States v. McNutt, __ M.J. __ (C.A.A.F.
2005)(rejecting three decades of settled law on sentencing by
military judge alone); United States v. Brewer, 61 M.J. __
(C.A.A.F. 2005)(rejecting MCM provisions on inferences and re-
interpreting settled character evidence rules); United States v.
Warner, __ M.J. __ (C.A.A.F. 2005)(rejecting five decades of
Article 46, UCMJ, interpretation to redefine “reasonably
comparable” defense expert); United States v. Kreutzer, 

(C.A.A.F. 2005)(finding new right of constitutional
magnitude to capital mitigation specialist despite at least six
related experts on defense team); United States v. Collins, 

(C.A.A.F. 2004)(reinterpreting R.C.M. 706 to impose new
requirements on military judge).
United States v. Sowell, No. 03-0688/NA


       The majority holds “the military judge erred because this

information [the acquittal of a co-conspirator] was a fair

response in rebuttal to trial counsel’s findings argument.”

United States v. Sowell, __ M.J. __, __ (4) (C.A.A.F. 2005).

This holding overlooks the required foundational predicates for

the admissibility of evidence.   Military Rule Of Evidence

103(a)(2) provides that the party seeking to admit evidence will

make a proffer as to the admissibility of the evidence.   What

proffer was made in this case?

       At trial, the defense counsel noted prior to sentencing

that the acquittal of the co-conspirator would be an appropriate

subject for Appellant’s unsworn statement.   “[I]f in my client’s

unsworn statement she desires to bring that to the member’s

[sic] attention that’s certainly well within her rights to do

so.”   The military judge inquired as to the basis for that, and

the defense replied that admissibility was based on United

States v. Grill, 

(C.A.A.F. 1998), because:

       [T]he Court said it was reversible error for the judge
       to deny the individual servicemember to provide in an
       unsworn statement testimony about other individuals
       who are involved in a conspiracy and the fact that
       some individuals did not have charges brought against
       them; some other individuals received only probation;
       and other individuals had lesser and lenient
       treatment. And certainly the facts of this case are
       similar to this.

The following colloquy took place between the military

judge and counsel:


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United States v. Sowell, No. 03-0688/NA


     MJ:   The issue for me in reading this is disparate
           handling and I concur with you with respect to
           identifying that nothing happened to Schwey,
           Cormier, would be appropriate. The handling of
           Petty Officer Elliott’s case took place in
           precisely the same way as this, so what’s the
           relevance of the information?

     DC:   Well, the relevance, sir, just as in that case,
           that it gives the members an opportunity and
           information on which to determine their sentence.
           And in those cases other individuals --

     MJ:   I had no problem with, if there was a sentence in
           the case, bringing that to the attention of the
           members, but we don’t have a sentence.

     DC:   That’s right, sir, and the fact that --

     MJ:   So what’s the fit?

     DC:   Well the fit would be then that Petty Officer
           Elliott has received no punishment whether --

     MJ:   Because she was found to have been not guilty of
           something. I mean, as I understand it, the
           verdict was a finding of not guilty.

     DC:   Yes, sir.   And for that reason --

     MJ:   And that is certainly not a receiving of no
           punishment by any sentencing authority.

     DC:   That’s what I’m saying, sir. She’s received no
           punishment because she was acquitted. She
           couldn’t be punished.

     MJ:   And if your client was found not guilty she
           couldn’t be punished, so what’s your point?

     DC:   I agree, sir. The point is, sir, the members
           should be aware of it so that they can make a
           decision based on all those circumstances.

     MJ:   You have an awful broad brush you’re painting
           here. I mean, it’s not -- I have no problem,
           like I said, if you’re talking disparate


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United States v. Sowell, No. 03-0688/NA


           treatment of individuals in the same class, and
           here you’re talking the same-class. Four
           coconspirators and you can identify to them that
           these two -- that two of the people that were at
           least allegedly involved, particularly given the
           findings of the court, received different
           sentences. But I’ve read the case pretty
           carefully and again, it goes back to treatment by
           members -- I mean treatment by the convening
           authority and one is saying, “Why I’ve received
           such favorable treatment and why I’m being
           treated so harshly.”

     DC:   Well, sir, I get --

     MJ:   Petty Officer Elliott and Seaman Sowell were
           treated precisely the same way. They were both
           sent to a court martial.

     DC:   I understand that, sir, and I’ll agree with you
           that the facts are different and can be
           distinguished as you’re saying, but the way I
           read what the court said is that the rights of
           allocution are broad enough that it could include
           a situation like this.

     MJ:   To include acquittal?

     DC:   Yes, sir.

     MJ:   I’m not going to allow it. She can mention she
           went to court-martial. I’ll make specific
           findings in that regard.

           I find what we’re doing here 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
           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 I believe you’re on solid


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United States v. Sowell, No. 03-0688/NA


            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 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.

     The essence of the defense argument at trial was that

Elliott’s acquittal was “fair game” under Grill, as applied to

“disparate treatment” cases.   There was no mention that it was

properly admissible to rebut the trial counsel’s finding

argument.   In fact, there was no mention of any “rebuttal

theory” at trial, nor was such a theory recognized by any of the

judges of the Court of Criminal Appeals in two separate divided

opinions.   The reason this rationale was not used even by the


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United States v. Sowell, No. 03-0688/NA


dissenting judges below was because this was not the context in

which the matter was litigated at trial.   There is a good reason

why that position was not advocated at the trial level or relied

upon by the Court of Criminal Appeals.    The argument of counsel

is not evidence.    See, e.g., United States v. Robles-Ramos, 

, 477 (C.A.A.F. 1998); United States v. Loving, 

, 238 (C.A.A.F. 1994); United States v. Clifton, 

,

29 (C.M.A. 1983).   Moreover, the trial counsel’s bias argument

relates solely to a witness credibility issue relevant only to

the findings and not the sentence in the case.   Further, the

disposition of the criminal case against Elliott does not

dictate or affect the standard that either party must meet in

order to make a good faith argument as to the co-conspirator’s

role and her bias in favor of Appellant’s acquittal.   These

different standards of proof were recognized in Dowling v.

United States, 

(1990), in which the Court noted

that an acquittal would not preclude the admissibility of

evidence for impeachment purposes under a far less demanding

standard.   An acquittal is based on the failure of proof beyond

a reasonable doubt, whereas, impeachment evidence is considered

for admission based on a preponderance standard.   Regardless,

the trial counsel’s argument went to findings, and was not a

theme repeated during the Government’s sentencing case.   Thus,

the acquittal and its mention by Appellant in her unsworn


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United States v. Sowell, No. 03-0688/NA


statement must be examined in the context of the evidence on

findings, as well as the matters presented by the Government in

their sentencing case.2

     Examined on its own merits, the acquittal of a co-

conspirator is not relevant for sentencing purposes.   “[I]t has

long been the rule that the sentences in other cases cannot be

given to the court-martial members for comparative purposes.”

United States v. Mamaluy, 

, 106, 

, 180

(1959).   Additionally, findings in other cases may not be used

to impeach the verdict.   See, e.g., United States v. Pearson, 

(C.M.A. 1984); see also, United States v. Tobita, 

, 

(1953)(appropriate for the military

judge to exclude testimony by the accused as to his denial of

the use of force after he had been convicted of rape); United

States v. Teeter, 

, 73 (C.M.A. 1983)(permissible to

exclude appellant’s alibi testimony during sworn statement and

sentencing).


2
  Rule for Courts-Martial (R.C.M.) 1001(b) “Matter to be
presented by the prosecution.” Given that R.C.M. 1001(a)(1)
provides that “[a]fter findings of guilty have been announced,
the prosecution and defense may present matter pursuant to this
rule to aid the court-martial in determining an appropriate
sentence,” and that both R.C.M. 1001(b) and (c) include
categories of information that are not evidence on the findings,
I am not willing to share the majority’s suggestion that such
“matters” may include trial counsel’s findings argument.
Similarly, I am unwilling to conclude that the Government should
be entitled under R.C.M. 1001(d) to offer evidence to rebut
defense counsel’s findings argument.

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United States v. Sowell, No. 03-0688/NA


     The majority notes that “[w]hatever the general rule

regarding verdict impeachment and sentence comparison,

Appellant’s case is distinct. . . .”   Sowell, __ M.J. at __ (4).

“Ordinarily such information [co-conspirator’s acquittal] might

properly be viewed in the context as impeaching the members’

findings.”   Id. at __ (6).   In this case, the very legitimate

comment on witness credibility made during argument on the

findings is converted to a basis upon which to permit mention by

Appellant in her unsworn statement of that which would otherwise

be prohibited during any part of the defense sentencing case,

even though this nascent “rebuttal theory” was not the argument

advanced at trial or considered by any military judge as a basis

upon which to permit mention of Elliott’s acquittal in

Appellant’s unsworn statement.

     In this fashion, the majority not only announces a further

interpretation of R.C.M. 1001(c)(2)(C) -– which was the subject

at hand –- but, gratuitously reinterprets R.C.M. 1001(c)(1) and

(2) in their entirety, as well as R.C.M. 1001(d).   Perhaps most

damaging is the majority’s revision of the relationship between

R.C.M. 919 and 1001(d) to suggest that the contents of argument

by either counsel on findings may now be the subject of rebuttal

evidence (or rebuttal unsworn statement) by either party during

the sentencing case.   To the contrary, it would be hard to say

there was an abuse of discretion by the military judge when one


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United States v. Sowell, No. 03-0688/NA


notes that argument of counsel has not been considered, until

this time, as either evidence or testimony, and thus could never

be subject to rebuttal.

     For all these reasons, and in particular for the air of

unpredictability that such decisions continue to inject into

military courtrooms around the world, I respectfully dissent.




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