United States v. Rowe, ACM 38880

Background

Appellant, an Airman, pleaded guilty at a general court-martial to attempted abusive sexual contact, attempted forcible sodomy, abusive sexual contact, and forcible sodomy; sentence: dishonorable discharge and 20 years confinement.
These charges were preferred and referred while Appellant remained in confinement from an earlier court-martial; the Government placed Appellant into pretrial confinement on the scheduled release date from the prior confinement.
During presentencing, one victim submitted an unsworn statement read by the victim’s special victims’ counsel and admitted as a written exhibit; defense objected to the form and content (arguing the victim should be sworn, the statement was cumulative, and some content exceeded plea admissions).
The military judge ruled Article 6b (10 U.S.C. § 806b) permits a victim to provide an unsworn statement as part of the right to be reasonably heard, performed a Mil. R. Evid. 403 balancing, and admitted the unsworn statement.
On appeal Appellant raised two issues: (1) lack of personal jurisdiction because his enlistment term had expired before government action “with a view to trial,” and (2) whether permitting the unsworn victim statement in presentencing was an abuse of discretion.
The court affirmed both findings and sentence, holding jurisdiction remained (no discharge certificate or final pay delivered) and the military judge did not abuse discretion in admitting the unsworn statement under Article 6b and applicable precedent.

Issues

Issue	Appellant's Argument	Government's Argument	Held
Personal jurisdiction after enlistment expiration	Grostefon: Government had not acted with a view to trial before enlistment expired; thus court-martial lacked personal jurisdiction	Jurisdiction continued because Appellant was not discharged—no delivery of discharge certificate or final pay—and charges were preferred while subject to UCMJ	Jurisdiction valid: mere expiration of enlistment does not terminate jurisdiction absent a discharge certificate/final pay; charges were preferred while subject to UCMJ
Victim’s unsworn presentencing statement	Unsworn statement read by counsel prejudiced Appellant; victim should have been sworn and content exceeded plea admissions	Article 6b gives victims the right to be reasonably heard; federal and military precedent support permitting unsworn statements; judge performed Mil. R. Evid. 403 balancing	No abuse of discretion: Article 6b’s “reasonably heard” includes unsworn statements at presentencing; judge properly balanced relevance and prejudice

Key Cases Cited

United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982) (standards for raising jurisdictional defenses under the UCMJ)
Solorio v. United States, 483 U.S. 435 (U.S. 1987) (jurisdiction determined by military status of accused)
Webb v. United States, 67 M.J. 765 (A.F. Ct. Crim. App. 2009) (discharge effective upon delivery of discharge certificate and final pay requirements)
Kenna v. United States Dist. Court, 435 F.3d 1011 (9th Cir. 2006) (CVRA interpretation: right to be reasonably heard includes unsworn victim statements at sentencing)
Terlep, 57 M.J. 344 (C.A.A.F. 2002) (victim testimony in sentencing prior to Article 6b)