RCM 1001(b)(4)

uscourtmartiallawyers57A military judge has broad discretion in determining whether to admit evidence under 1001(b)(4). United States v. Rust , 41 M.J. 472, 478 (1995); United States v. Wilson , 47 M.J. 152, 155 (1997); United States v. Gogas , 58 M.J. 96 (2003).

  1. “. . . [E]vidence as to any aggravating circumstances directly relating to or resulting from the offenses of which the accused has been found guilty” (emphasis added). See United States v. Hardison , 64 M.J. 279 (2007)
  2. Three components – “Evidence in aggravation includes, but is not limited to”:
    1. Victim-Impact: “[E]vidence of financial, social, psychological, and medical impact on or cost to any person or entity who was the victim of the offense committed by the accused.”
    2. Mission-Impact: “[E]vidence of significant adverse impact on the mission, discipline, or efficiency of the command directly and immediately resulting from the accused’s offense.”
    3. Hate-Crime Evidence: “[E]vidence that the accused intentionally selected any victim or any property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.”
  3. United States v. Nourse , 55 M.J. 229 (C.A.A.F. 2001). The CAAF held that it was permissible to admit evidence of other uncharged larcenies of property from the same victim by the accused because such evidence “directly related to the charged offenses as part of a continuing scheme to steal from the . . . [victim].” This evidence showed the “full impact of appellant’s crimes” upon the victim. See also United States v. Shupe, 36 M.J. 431 (C.M.A. 1993); United States v. Mullens, 29 M.J. 398 (C.M.A. 1990).
  4. United States v. Patterson , 54 M.J. 74 (C.A.A.F. 2000). Testimony by government expert regarding patterns of pedophiles, to include “grooming” of victims, admissible where the expert did not expressly testify that the accused was a pedophile. Compare with United States v. McElhaney , 54 M.J. 120 (2000) (holding that the military judge erred when he allowed a child psychiatrist to testify about future dangerousness).
  5. United States v. Maynard , 66 M.J. 242 (C.A.A.F. 2008). Absent defense objection, the court will apply the plain error test to determine if a military judge erred in admitting aggravation evidence.
  6. United States v. Anderson , 60 M.J. 548 (A.F. Ct. Crim. App. 2004). The court affirmed the MJ’s decision to permit the TC to introduce portions of a Senate report detailing its findings related to child pornography (appellant convicted of various offenses related to child pornography). The excerpt specifically addressed the impact of child pornography on the children involved, particularly the physical and psychological harm they experience. The court observed that the children depicted are victims for RCM 1001(b)(4) purposes and the information in the report was sufficiently direct to qualify for admission as impact evidence under the same rule. “The increased predictable risk that child pornography victims may develop psychological or behavioral problems is precisely the kind of information the sentencing authority needs to fulfill” its function of discerning a proper sentence.
  7. United States v. Sittingbear , 54 M.J. 737 (N-M. Ct. Crim. App. 2001). Victim’s testimony that she sustained a rectal tear during a rape is admissible even where a sodomy charge had been withdrawn and dismissed.
  8. United States v. Cameron, 54 M.J. 618 (A.F. Ct. Crim. App. 2000). Uncharged false statements about charged offenses, as a general rule, are not proper evidence in aggravation. But see United States v. Driver , 57 M.J. 760 (N-M. Ct. Crim. App. 2002). False official statement to NCIS agent relating to conspiracy to commit arson and arson charge admissible in aggravation despite appellant’s acquittal of the Article 107 offense provided: there is sufficient evidence that the act (i.e., false official statement occurred); the MJ properly does an MRE 403 balancing; and the sentencing authority is fully aware of the acquittal on the charged offense.
  9. United States v. Alis, 47 M.J. 817 (A.F. Ct. Crim. App. 1998). Accused’s awareness of magnitude of crime, and remorseless attitude toward offenses, is admissible in sentencing. 10. United States v. Sanchez , 47 M.J. 794 (N-M. Ct. Crim. App. 1998). Victim’s testimony about assault, extent of injuries suffered, hospitalization, and general adverse effects of assault admissible against accused found guilty of misprision of offense. TC also offered pictures of wounds and record of medical treatment of victim. Navy-Marine Court noted this evidence in aggravation under RCM 1001(b)(4) did not result from misprision conviction, but did directly relate to the offense and was therefore admissible. 11. United States v. Wilson , 47 M.J. 152 (1997). Accused convicted of disrespect for commenting to another party that, “Captain Power, that f_____g b____h is out to get me.” Officer testified at sentencing to “concern” statement caused her. The CAAF held that the testimony was properly admissible. 12. United States v. Jones , 44 M.J. 103 (1996). HIV-positive accused charged with aggravated assault and adultery; convicted only of latter in judge alone trial and sentenced to the maximum punishment. In imposing his sentence, the MJ criticized the accused’s “disregard for the health and safety of an unknown victim and this purposeful conduct committed immediately after being made aware of the circumstances . . . .” The CAAF held medical condition was a fact directly related to the offense under RCM 1001(b)(4) and essential to understanding the circumstances surrounding the offense. 13. United States v. Zimmerman , 43 M.J. 782 (Army Ct. Crim. App. 1996). Evidence that accused was motivated by white supremacist views when he wrongfully disposed of military munitions to what he believed was a white supremacist group constituted aggravating circumstances directly related to the offense. 14. United States v. Gargaro , 45 M.J. 99 (1996). Evidence that civilian drug dealer triggered the investigation when he was arrested with an AK-47 that he said he obtained from a Fort Bragg soldier showed the extent of the conspiracy and the responsibility of the accused’s commander. Any unfair prejudice stemming from the fact that the weapon was found in the hands of a drug dealer was outweighed by the probative value showing the facts and circumstances surrounding the investigation of the charged offenses. 15. United States v. Hollingsworth , 44 M.J. 688 (C.G. Ct. Crim. App. 1996). Testimony of child victim to offense which was the basis of a withdrawn specification admissible when it showed extent of scheme with evidence of other transactions. Also, testimony of expert child psychologist that sexual abuse victim’s recovery was affected or hindered by the pendency of legal proceedings admissible where defense raised factors affecting a victim’s recovery rate and expert’s testimony provided a “more complete” explanation of the victim’s prognosis. 16. United States v. Scott , 42 M.J. 457 (1995). Initial findings to involuntary manslaughter and assault with a dangerous weapon set aside (accused fired into a crowd). On appeal, the charge that remained was carrying a concealed weapon. Evidence of death and injuries showed circumstances “directly related to or resulting from” the accused’s carrying of a concealed weapon. 17. United States v. Terlep , 57 M.J. 344 (2002). Appellant, initially charged with burglary and rape, plead to unlawful entry and assault. On sentencing, victim testified she awoke from what she thought was a “sex dream” only to discover the appellant on top of her. She testified, in part, that “when I told him to get off of me, he had to take his private part out of me and get off. . . .” She also testified “He admitted—he said what he had done. He said, ‘I raped you.’” The CAAF found that the victim’s testimony did not constitute error. The court noted that although the appellant entered into a pretrial agreement to lesser offenses, the victim could testify to “her complete version of the truth, as she saw it” limited only by the terms of the pretrial agreement and stipulation of fact. Neither the pretrial agreement nor the stipulation of fact limited the evidence the government could present on sentencing. The court noted that “absent an express provision in the pretrial agreement or some applicable rule of evidence or procedure barring such evidence, this important victim impact evidence was properly admitted.” RCM 1001(b)(4) provides for “accuracy in the sentencing process by permitting the judge to fully appreciate the true plight of the victim in each case.” 18. United States v. Marchand , 56 M.J. 630 (C.G. Ct. Crim. App. 2001). Expert testimony describing impact of child pornography upon minors depicted in images admissible notwithstanding that expert did not establish that the particular victims in the images viewed by accused actually suffered any adverse impact, only that there was an increased risk to sexually abused minors generally of developing complications from abuse. 19. United States v. Smith , 56 M.J. 653 (Army Ct. Crim. App. 2001). Unwarned testimony by appellant to U.S.D.B. Custody Reclassification Board where appellant said “‘it’s an inmates duty to try and escape, especially long-termers” and that he is “‘an escape risk and always will be’” admissible on aggravation. 20. United States v. Gogas , 58 M.J. 96 (2003). Letter from accused to his Congressman complaining about being prosecuted for LSD use admissible under 1001(b)(4) as directly related to the offense of drug use. The letter highlighted the appellant’s “indifference to anything other than his own pleasure.” The court did not rule on whether the evidence was also admissible on the issue of rehabilitative potential. 21. United States v. Dezotell , 58 M.J. 517 (N-M. Ct. Crim. App. 2003). Witness’ testimony that appellant’s unauthorized absence and missing movement adversely affected ship’s mission and efficiency during a period of heightened responsibilities proper testimony despite the fact that the appellant, at the time, was not working for the witness and the witness’ testimony was not subject “to precise measurement or quantification.” All that is required is a “direct logical connection or relation between the offense and the evidence offered.” 22. United States v. Pertelle , No. 9700689 (Army Ct. Crim. App., Jun. 30, 1998) (unpub.). Testimony of accused’s company commander that he intended to publicize results of court-martial in company did not constitute proper evidence in aggravation. Such evidence related only to prospective application of sentence, and did not “directly relate to or result from the accused’s offense.” 23. United States v. Powell , 45 M.J. 637 (N.M. Ct. Crim. App. 1997), aff’d , 49 M.J. 360 (1998). Uncharged misconduct that accused lost government property, was financially irresponsible, and passed worthless checks wasdirectly related to offenses of which convicted – i.e ., failure to report to work on time and travel and housing allowance fraud – and therefore not admissible at sentencing under RCM 1001(b)(4). The court also noted that “MRE 404(b) does not determine the admissibility of evidence of uncharged misconduct during sentencing . . . admissibility of such evidence is determined solely by RCM 1001(b)(4) . . . .” Id . at 640. 24. United States v. Rust , 41 M.J. 472 (1995). Prejudicial error to admit suicide note in aggravation phase of physician’s trial for dereliction of duty and false official statement. The murder-suicide was too attenuated even if the government could establish link between accused’s conduct and murder-suicide, and clearly failed MRE 403’s balancing test. 25. United States v. Davis , 39 M.J. 281 (C.M.A. 1994). Victim’s testimony as to how he would feel if the accused received no punishment not admissible as evidence of impact evidence under RCM 1001(b)(4) or as evidence regarding accused’s rehabilitative potential under RCM 1001(b)(5). 26. United States v. Lowe , 56 M.J. 914 (N-M. Ct. Crim. App. 2002). During the sentencing phase of trial, the MJ relaxed the rules of evidence for defense admitting DE A, a letter from a Navy psychologist which assessed appellant, concluding “‘in my professional opinion, he does not present a serious threat to society.’” In rebuttal, the MJ admitted over defense objection PE 3, a seventeen-page incident report with twenty- eight pages of attached statements alleging that appellant harassed and assaulted various women, only one of whom was the victim of an offense for which appellant was convicted. The MJ also admitted the evidence as aggravation evidence. Held – admission of PE 3 by the MJ was an abuse of discretion since the evidence did not directly relate to or result from the offenses. It involved different victims and did not involve a continuing course of conduct with the same victim. The court also found that despite the MJ’s relaxation of the rules of evidence, the introduction of PE 3 was not proper rebuttal evidence. “Inadmissible aggravation evidence cannot be introduced through the rebuttal ‘backdoor’ after the military judge relaxed the rules of evidence for sentencing.” Id . at 917. Specific instances of conduct are admissible on cross-examination to test an opinion, however, extrinsic evidence as to the specific instances is not. 27. United States v. Pope , 63 M.J. 68 (2006). Air Force recruiters who received training at “Recruiter Technical School” received a letter signed by the Commander of the Air Force Recruiting Service, stating that if they failed to treat applicants respectfully and professionally, they “should not be surprised when, once you are caught, harsh adverse action follows.” During the sentencing phase of appellant’s trial, the military judge allowed the Government to admit the letter in aggravation, over defense objection. The sentence was set aside and a rehearing on sentence was authorized. The CAAF reviews a military judge’s decision to admit evidence on sentencing for a clear abuse of discretion. United States v. Manns , 54 M.J. 164, 166 (2004). In the present case, CAAF was not convinced beyond reasonable doubt that the members were not influenced by the letter. 28. United States v. Bungert , 62 M.J. 346 (2006). After appellant’s misdeeds of drug use and distribution were discovered, he offered to identify other drug users with whom he worked in exchange for “a deal.” Appellant implicated eleven individuals, and in doing so, launched an extensive investigation by the Coast Guard Investigative Service that uncovered no evidence. During presentencing, two witnesses testified primarily about the nature and scope of the investigation brought about as a result of Appellant’s allegations. Defense counsel made no objection. Applying a plain error standard, CAAF found that Appellant offered no evidence that he was prejudiced in any substantial way by the testimony of the Government’s sentencing witnesses. 29. United States v. Hardison , 64 M.J. 279 (2007). The military judge committed plain error in admitting evidence of Appellant’s pre-service drug use and a service waiver for that drug use. Admissible evidence in aggravation must be “directly related” to the convicted crime. 30. United States v. Palomares , 2007 WL 2405293 (N-M. Ct. Crim. App. 2007) (unpublished): While serving in Afghanistan and engaged in combat operations, accused purchased and used valium. During sentencing, the CO talked about the nature of the unit’s combat operations, how the accused’s and other’s use complicated relief in place and required a unit urinalysis and search upon redeployment. No defense objection. Even though the accused was not the only Marine who used Valium, his offense had an unnecessary and harmful impact on the mission, discipline, and efficiency. 31. United States v. Chapman , 2007 WL 2059743 (NMCCA 2006) (unpublished): In missing movement case, sentencing witness allowed to testify about: (1) how accused’s absence caused another Marine to deploy with little notice and one year ahead of scheduled deployment, and (2) injuries witness received on deployment. Military judge did not abuse his discretion because he limited his consideration of the injury testimony to the nature of the environment to which the accused was suppose to go and the type of danger. Military judge also performed MRE 403 balancing. 32. United States v. McKeague , 2007 WL 2791701 (AFCCA 2007) (unpublished): No error when judicial notice taken that fatigue is a withdrawal symptom of methamphetamine. Supervisor testified, without objection, about how the accused was observed sleeping seven times in a two- person shop, thereby increasing the workload. It was a reasonable inference that Accused’s chronic sleepiness was caused by unlawful drug use

Three components

Victim-Impact: