## Facts

- Airman First Class Thomas E. Barker pleaded guilty at a judge-alone general court-martial to knowingly and wrongfully possessing and viewing child pornography, in violation of Article 134, UCMJ.
- In a stipulation of fact, Barker admitted downloading and viewing approximately 155 videos and 12 photographs depicting children engaged in sexually explicit conduct over a several-month period.
- Some depicted children were identifiable, including a victim referenced as KF.
- During presentencing, trial counsel offered written victim-impact statements attributed to KF as unsworn victim statements under R.C.M. 1001A.
- Trial counsel obtained redacted copies of KF’s previously prepared statements from the FBI and did not contact KF, seek her participation, or identify a designee or counsel acting for her in Barker’s case.
- Barker objected, arguing that R.C.M. 1001A requires victim (or designee/counsel) election and presentation, not unilateral government submission.
- The military judge overruled the objections, conducted a Military Rule of Evidence 403 balancing, and admitted the statements as R.C.M. 1001A material.
- The military judge sentenced Barker to 30 months’ confinement, reduction to E-1, forfeiture of all pay and allowances, and a bad-conduct discharge.
- On appeal, the Air Force Court of Criminal Appeals found noncompliance with R.C.M. 1001A but affirmed the findings and sentence; further review was granted on whether prejudice was properly assessed.

## Issues

1. Whether unsworn victim-impact statements may be admitted under R.C.M. 1001A when introduced by the government without the victim’s participation, designee, or counsel.
2. If admission under R.C.M. 1001A was erroneous, whether the error substantially influenced the sentence, requiring relief.

## Decision

- The court held the victim-impact statements were improperly admitted under R.C.M. 1001A because the rule implements the victim’s personal right to be reasonably heard and contemplates introduction by the victim, a properly appointed designee, or the victim’s counsel.
- The court concluded the error was harmless because it did not substantially influence the sentence in this judge-alone case.
- The decision affirming the findings and sentence was affirmed.

## Legal Principles

- R.C.M. 1001A is a victim-rights mechanism implementing Article 6b, UCMJ; it is separate from the government’s presentencing case and is not a prosecutorial tool.
- Unsworn statements under R.C.M. 1001A may be presented only by the victim, a designee appointed under the rule, or the victim’s counsel; the government may not introduce such statements unilaterally as R.C.M. 1001A material.
- Improper admission of sentencing material is reviewed as nonconstitutional evidentiary error; relief is warranted only if the error substantially influenced the adjudged sentence.
- In judge-alone sentencing, courts may consider the presumption that military judges know and apply the law when assessing prejudice.

## Conclusion

The court held that R.C.M. 1001A unsworn victim statements cannot be introduced by the government absent victim (or designee/counsel) participation, but affirmed the sentence because the erroneous admission did not substantially influence the military judge’s sentencing decision.


United States v. Barker, 77 M.J. 377 (C.A.A.F. 2018)