TRIAL STAGES: Merits:  Pretrial Agreements

2012 (September Term)

United States v. Riley, 72 M.J. 115 (it is the military judge’s responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness). 

2011 (September Term)

United States v. Ballan, 71 M.J. 28 (where the convening authority refers one offense to court-martial on the charge sheet, but enters into a pretrial agreement whereby he agrees to accept a plea of guilty from appellant to a different charge that is also not an LIO of the original charge, a court-martial has jurisdiction over the latter offense because implicit in the convening authority’s entry into a pretrial agreement was his personal decision that the charge be referred to court-martial; the convening authority’s entry into the pretrial agreement was the functional equivalent of a referral order). 

2010 (September Term)

United States v. Soto, 69 M.J. 304 (as part and parcel of the providence of an accused’s guilty plea, the military judge shall inquire to ensure that the accused understands the pretrial agreement, and that the parties agree to the terms of the agreement; this is necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty).

 

(it is the military judge’s responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness; it is for this reason that the RCM 910(f)(3) requires that the military judge shall require disclosure of the entire agreement excepting the quantum limitations before accepting a plea of guilty; further, as required by RCM 910(h)(3), after the sentence is announced, the military judge shall both inquire into any parts of the PTA not previously examined and ensure that an accused understands all material terms; an inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the agreement is error). 

 

(military judges need to be ever vigilant in fulfilling their responsibility to scrutinize pretrial agreement provisions to ensure that they are consistent with statutory and decisional rules, and basic notions of fundamental fairness). 

 

(a fundamental principle on pretrial agreements is that the agreement cannot transform the trial into an empty ritual; judicial scrutiny of PTA provisions at the trial level helps to ensure that this principle is fulfilled). 

 

(not every procedural failure in reviewing a pretrial agreement results in an improvident plea). 

 

(in this case, a provision in the pretrial agreement required that appellant request a BCD during the sentencing phase of the court-martial; this provision was placed in the quantum portion of the PTA, notwithstanding the fact that it was not a quantum limitation on the sentence; the provision was neither disclosed to the military judge prior to his accepting appellant’s plea of guilty (although the military judge specifically asked whether there were any conditions in the quantum portion), nor was it discussed with appellant before, during, or after the providence inquiry; examining the quantum portion of the agreement after the announcement of sentence, the military judge did not acknowledge the term requiring appellant to request a punitive discharge during sentencing, let alone discuss it with appellant; where the provision in question is one that goes directly to the sentence requested by an accused and imposed by the military judge, the provision is tucked away in the quantum portion of the PTA (although it is not a sentence limitation), and the parties fail to disclose the provision in response to a direct question by the military judge, the integrity of the guilty plea process itself is undermined; under the facts and circumstances of this case, it appears that the military judge was unaware that appellant’s request for a BCD was required by the PTA; thus, it cannot be said that the request did not influence the sentence imposed; under the particular facts of this case, there is a substantial basis in law to question the providence of appellant’s plea and the plea inquiry was improvident).

2009 (September Term)

United States v. Morton, 69 M.J. 12 (the convening authority’s entry into a pretrial agreement that calls for pleas of guilty to offenses different from those charged is the functional equivalent to an order referring those offenses to the court-martial).

2008 (September Term)

United States v. Smead, 68 M.J. 44 (a PTA in the military justice system establishes a constitutional contract between the accused and the convening authority; in a typical PTA, the accused foregoes certain constitutional rights in exchange for a reduction in sentence or other benefit; as a result, when interpreting PTAs, contract principles are outweighed by the Constitution’s Due Process Clause protections for an accused; in a criminal context, the government is bound to keep its constitutional promises). 

 

(at trial, the military judge must ensure that the accused understands the PTA, the parties agree to the terms of the agreement, the agreement conforms to the requirements of RCM 705, and the accused has freely and voluntarily entered into the agreement and waived constitutional rights). 

 

(appellant bears the burden of establishing that a PTA term is material and that the circumstances establish governmental noncompliance; in the event of noncompliance with a material term, an appellate court considers whether the error is susceptible to remedy in the form of specific performance or in the form of alternative relief agreeable to appellant; if such a remedy does not cure the defect in a material term, the plea must be withdrawn and the findings and sentence set aside).

 

(under RCM 705(a), an accused and the convening authority may enter into a PTA in accordance with the provisions of RCM 705, subject to such limitations as the Secretary concerned may prescribe; RCM 705(b) provides that a PTA may include a variety of promises by the accused and the convening authority; the phrase “may include” reflects that the President has not limited the nature of agreements under the rule to the items listed in RCM 705(b); among the promises that may be made by an accused, the rule includes: (1) a promise to plead guilty to one or more charges and specifications, and (2) a promise to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under the rule; among the promises that may be made by a convening authority, the rule includes: (1) a promise to withdraw one or more charges or specifications from the court-martial; (2) a promise to have the trial counsel present no evidence as to one or more specifications or portions thereof; and (3) a promise to take specified action on the sentence adjudged by the court-martial; under RCM 705(c)(1), a term or condition shall not be enforced: (1) if the accused did not freely and voluntarily agree to it; and (2) if it deprives the accused of the right to due process or certain other expressly enumerated rights; RCM 705(c)(2) adds that the prohibition on deprivation of certain rights in subsection (c)(1) does not preclude a voluntary agreement to: provide a stipulation of fact; testify in a subsequent proceeding; provide restitution; conform conduct to probation conditions through the period of any suspended sentence; or waive procedural requirements with respect to an investigation under Article 32, the composition of the court-martial, or the personal appearance of sentencing witnesses; the limitations of RCM 705(c)(1) are the only express limitations on terms of PTAs under the rule; other limitations may be provided under departmental regulations). 

 

(RCM 705, which governs PTAs, is not a rule of exclusion; RCM 705 provides broad authority as to the terms that the parties “may include” in an agreement; dismissal with prejudice as a term of a PTA does not come within the few express prohibitions in the rule). 

 

(an agreement in a PTA for a convening authority to withdraw and dismiss certain charges with prejudice upon announcement of sentence is not a legal nullity; the power of a convening authority to dismiss withdrawn charges with prejudice is consistent with the powers granted to convening authorities by Congress and the President in the final disposition of charges; for example, a convening authority may: (1) direct action resulting in a finding of not guilty by entering into a PTA providing that the prosecution will present no evidence on a charge under RCM 705(b)(2)(D); (2) grant transactional immunity under RCM 704 that precludes trial by court-martial of an immunized offense; and (3) disapprove any finding by a court-martial and substitute either a lesser included offense or a finding of not guilty under Article 60(c)(3), UCMJ). 

 

(a reviewing court may cure a government breach of a PTA in several ways: requiring specific performance of the initial PTA, providing the appellant with alternative relief, providing an adequate remedy to cure the breach, or allowing withdrawal of the pleas). 

 

(RCM 705(d)(4)(B) permits a convening authority to withdraw from a PTA if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review; the rule establishes a two-part test in which the decision of the appellate court must: (1) set aside findings; and (2) do so because the plea was improvident). 

 

(at a rehearing on findings and sentence, convening authority could not revive charges that had been dismissed with prejudice upon announcement of sentence at appellant’s first court-martial pursuant to a PTA; the remand for a rehearing did not return the parties to status quo ante, but was instead based on the government’s failure to comply with a PTA term involving the effective date of the reduction in rank).

 

United States v. Wiechmann, 67 M.J. 456 (pretrial agreements implicate distinctive responsibilities of the convening authority with respect to court-martial proceedings; in the military justice system, responsibility for the function of determining sentencing is shared by the court-martial and the convening authority; as an incident of the responsibility for sentencing, the convening authority may enter into a pretrial agreement that imposes a legal limitation on the scope of the sentence).

 

(RCM 705, the MCM rule dealing with pretrial agreements, underscores the vital role of counsel at the pretrial stage of the proceedings by providing that government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel; the rule further provides that a pretrial agreement shall be signed by the accused and defense counsel, if any). 


United States v. Gladue, 67 M.J. 311 (in the absence of an explicit prohibition, a party may knowingly and voluntarily waive such a nonconstitutional right in a pretrial agreement).

 

(although the President has prohibited the waiver of certain fundamental rights in a pretrial agreement, neither multiplicity nor the unreasonable multiplication of charges is among them). 

 

(appellant’s pretrial agreement expressly waiving any waivable motions waived claims of multiplicity and unreasonable multiplication of charges, and extinguished his right to raise these issues on appeal). 


United States v. Dean, 67 M.J. 224 (in military practice, the convening authority’s rights to withdraw are set out in RCM 705(d)(4)(B); that rule provides that a convening authority may withdraw from a pretrial agreement for the following reasons:  any time before the accused begins performance of promises contained in the agreement; failure by the accused to fulfill any material promise or condition in the agreement; when inquiry by the military judge discloses a disagreement as to a material term in the agreement; and if the findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review). 

 

(in this case, the convening authority’s right to withdraw from the pretrial agreement terminated when appellant began to perform several of the promises listed in the agreement, including entering into a stipulation of fact with the trial counsel, submitting a request to be tried by military judge alone, and waiving the personal appearance of certain witnesses; the beginning of performance was not limited to entry of a plea). 

 

(in addition to allowing the convening authority to withdraw from a pretrial agreement at any time before the accused begins performance, RCM 705(d)(4)(B) also provides that the convening authority may withdraw when inquiry by the military judge discloses a disagreement as to a material term in the agreement). 

 

(in this case, the parties’ disagreement about the meaning of the “begin performance” term in the pretrial agreement was not a disagreement over a material term in the agreement so as to entitle the convening authority to withdraw from the agreement under RCM 705(d)(4)(B); although the military judge held a hearing on the convening authority’s right to withdraw before appellant began to perform, at no point during the hearing or in his ruling did the military judge address whether the “begin performance” term was material to the agreement; the hearing and the military judge’s ruling focused on interpretation of the rule itself, which was a legal rather than a factual inquiry; the record in the case demonstrated that the parties’ disagreement over the “begin performance” term had nothing to do with the government’s decision to withdraw, and the trial counsel confirmed during the hearing that the only reason the government withdrew was because appellant refused to modify the stipulation of fact to include additional misconduct; accordingly, the government could not rely on the component of the rule concerning a disagreement over a material term in the agreement to justify the convening authority’s withdrawal on appeal).  

 

(in order for the government, on appeal, to rely on the “disagreement as to a material term” component of RCM 705(d)(4)(B) to justify its withdrawal from a pretrial agreement, the record must reflect either that the government relied on that basis at trial or that the military judge made a finding to that effect). 

 

(the convening authority did not have the right to withdraw from the pretrial agreement based on appellant’s alleged commission of crimes while under the terms of a pretrial agreement in violation of an implied obligation of good faith, where the government chose not to avail itself of the opportunity to include a misconduct provision in appellant’s pretrial agreement, leaving the convening authority without recourse to cancel the pretrial agreement on the grounds of alleged acts of new misconduct). 

 

(a pretrial agreement does not carry with it an implied condition that the government will be bound only if the accused behaves well; however, RCM 705(c)(2)(D) allows the government to include as a condition of the pretrial agreement an express promise to conform the accused’s conduct to certain conditions of probation before action by the convening authority). 

 

(the pretrial agreement’s requirement that the accused enter into a written stipulation of fact with the trial counsel as to the circumstances of the offenses did not require the accused to include recent acts of alleged misconduct in the stipulation, so as to permit the convening authority to withdraw from the agreement when the accused refused to modify the stipulation to include alleged acts of new misconduct; the stipulation provision in the pretrial agreement made no reference to the facts or circumstances of any misconduct other than that charged in the offenses, and the modification proposed by the government was outside the scope of the parties’ agreement; because the pretrial agreement did not include a misconduct provision authorized in RCM 705(c)(2)(D), the convening authority could not rely on alleged acts of new misconduct to justify its withdrawal). 


2008 (Transition)

United States v. Hunter, 65 M.J. 399 (as long as the procedural protections set forth in RCM 1109 are either followed or waived, a convening authority may withdraw before action from a PTA when the accused violates conditions established pursuant to RCM 705(c)(2)(D)). 

 

(when read together, RCM 705(c)(2)(D) and RCM 1109 do permit misconduct that occurred prior to the convening authority’s action to be used as the basis for a withdrawal from the confinement limitation of a PTA). 

 

(RCM 705(c)(2)(D)’s reference to RCM 1109 requires that the procedural protections for a suspension and vacation proceeding under RCM 1109 be extended to withdrawal from sentence limitations of a PTA based on allegations of misconduct). 

 

(while RCM 705(c)(2)(D) could have been drafted more precisely, the plain import of its reference to RCM 1109 is to require a convening authority to comply with the RCM 1109 procedural protections before the benefit of a PTA can be withdrawn). 

 

(in this case, the misconduct provision of appellant’s PTA complied with RCM 705, and the convening authority did not violate the PTA by withdrawing from a portion of the sentencing limitation in light of appellant’s post-trial misconduct where appellant waived the procedural protections to which he was otherwise entitled under RCM 1109). 

 

(military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his plea and the accused’s consent to do so must be ascertained; the accused must know and understand not only the PTA’s impact on the charges and specifications which bear on the plea, but also other terms of the agreement, including consequences of future misconduct or waiver of various rights; reflecting these concerns, RCM 910(f)(4) requires that where a plea agreement exists, the military judge shall inquire to ensure: (A) that the accused understands the agreement; and (B) that the parties agree to the terms of the agreement; this inquiry is part and parcel of the providence of an accused’s plea, and necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty; an inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the agreement is error). 

 

(although the military judge legally erred in failing to explain the pretrial misconduct provision of the PTA to appellant prior to accepting his guilty plea, despite the error, appellant was not entitled to relief because he failed to establish the material prejudice to a substantial right required under Article 59(a), UCMJ; there is no evidence that appellant misunderstood the meaning and effect of the misconduct provision within his PTA or that his understanding of it prejudiced his ability to make a fully informed decision to plead guilty). 

 

2007


United States v. Resch, 65 M.J. 233 (before a plea of guilty may be accepted, the military judge is obligated to ensure that an accused understands the provisions of any pretrial agreement, and to ensure that the parties agree to the terms set forth in the agreement; moreover, the military judge must ensure that the accused freely consents to enter into any stipulation of fact or stipulation of expected testimony). 


United States v. Tate, 64 M.J. 269 (RCM 705(c), which governs the scope of pretrial agreements, identifies both permissible and prohibited terms and conditions; with respect to prohibited terms, RCM 705(c) states that a term or condition in a pretrial agreement shall not be enforced if it deprives the accused of the right to counsel, the right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to complete sentencing proceedings, and the complete and effective exercise of post-trial and appellate rights).


(RCM 705(c)(1)(B) does not preclude an agreement to waive rights that may be waived in collateral or unrelated proceedings, such as the right to waive an administrative discharge board hearing, as provided in applicable administrative regulations). 


(under his pretrial agreement in which all confinement in excess of 50 years would be suspended, appellant agreed to waive both mandatory and discretionary consideration by the Navy Clemency and Parole Board for twenty years and to decline clemency or parole if offered during that period; under the Board’s rules, a person serving appellant’s sentence -- confinement for fifty years -- would be eligible for clemency consideration after five years, and for parole consideration after ten years; with respect to the requirement to refuse clemency or parole, the court of criminal appeals held that those terms were unenforceable as a violation of public policy, because the convening authority would be usurping the service secretary’s authority and the President’s authority to exercise their independent discretion in granting clemency; that decision is not challenged here; with respect to the agreement to not request clemency or parole, the CAAF found that RCM 705(c)(1)(B) precluded the use of pretrial agreement terms inconsistent with the complete and effective exercise of post-trial and appellate rights and that any terms and conditions that would deprive appellant of parole and clemency consideration under generally applicable procedures were unenforceable under RCM 705(c)(1)(B)).


2006


United States v. Lundy, 63 M.J. 299 (a pretrial agreement is a contract between the accused and the convening authority; a court looks to the basic principles of contract law when interpreting pretrial agreements). 


(a pretrial agreement is a constitutional rather than a commercial contract; typically, an accused foregoes his constitutional rights, including the privilege against compulsory self-incrimination, the right to trial by members, and the right to confront witnesses against him in exchange for a reduction in sentence or other benefit; as a result, when interpreting pretrial agreements, contract principles are outweighed by the Constitution’s Due Process Clause protections for an accused; in a criminal context, the government is bound to keep its constitutional promises, whereas in a commercial context it might accept the financial consequences of breach; thus, financial remedies are not necessarily an appropriate or available remedy for breach of a plea agreement).    


(in this case, the pretrial agreement term in dispute obligated the convening authority to suspend and waive all automatic reductions and forfeitures, and pay them to appellant’s wife to the full extent of the law; because of an Army regulation, the convening authority failed to suspend the reduction at the time of his action, and appellant’s wife received payments based on the rate of pay of an E-1 rather than that of an E-6; only years later, after a Secretarial waiver of that regulation, did appellant’s wife receive the monetary benefit of the bargain; the agreement was silent as to the timing of performance; appellant argued that the timing of the government’s execution of this term was material to his agreement and to his decision to plead guilty and that he was entitled to withdraw his plea as improvident; but appellant failed to meet his burden of demonstrating that the timing of the payment to his wife of the difference between the two pay grades with interest was material to his agreement to plead guilty where the clause “to the full extent of the law” in the agreement suggested emphasis on the amount of payment and not necessarily the speed or timing of payment and where the third-party beneficiary, appellant’s wife, did not complain about the partial performance until 13 months after the fact; thus, the belated payment to appellant’s wife was not alternative relief, but constituted specific performance of the original pretrial agreement). 


United States v. Parker, 62 M.J. 459 (an accused and the convening authority may enter into a pretrial agreement, subject to RCM 705; under the rule, an accused may agree to plead guilty to one or more charges and specifications, and the convening authority may agree to limit, suspend, or mitigate all or portions of the sentence; when there is a plea agreement, the military judge must ensure that the accused understands the agreement, that any unclear terms are clarified, and that all parties agree to the terms of the agreement).

(an accused may withdraw from a pretrial agreement at any time, subject to the rules governing guilty pleas and confessional stipulations; after trial, and prior to the convening authority’s action, the accused may initiate a modification of the pretrial agreement, so long as the accused has the assistance of counsel, the modification is the product of a fully informed and considered decision, and it is not the product of a coercive atmosphere). 


(the convening authority may withdraw from a pretrial agreement under four specified circumstances:  (1) at any time before the accused begins performance of promises contained in the agreement; (2) upon the failure by the accused to fulfill any material promise or condition in the agreement; (3) when inquiry by the military judge discloses a disagreement as to a material term in the agreement; and (4) if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review).


(in this case, the convening authority acted within the terms of the pretrial agreement when he withdrew from it, and appellant is not entitled to enforcement of the agreement, where the pretrial agreement between appellant and the convening authority expressly provided that the convening authority could withdraw from the agreement if appellant’s plea did not remain in effect for any reason, and the military judge ruled that appellant’s plea was improvident, a ruling well within the range of his discretion).

2005

 

United States v. Williams, 60 MJ 360 (under R.C.M. 705(d)(4)(B), the convening authority may withdraw from a pretrial agreement: (1) at any time before an accused begins performance of his or her promises under the agreement; (2) upon the failure of an accused to fulfill any material promise or condition in the agreement; (3) when inquiry by the military judge discloses a disagreement as to a material term in the agreement; or (4) if findings are set aside because a guilty plea is deemed improvident on appellate review).

 

(a military judge and counsel must play a critical role to ensure that the record reflects a clear, shared understanding of the terms of any pretrial agreement between an accused and the convening authority). 

 

(in this case, the parties had an underlying disagreement as to the restitution clause itself; under R.C.M. 705(d)(4)(B), the convening authority is authorized to withdraw from a pretrial agreement when an inquiry by the military judge discloses such a disagreement as to a material term in the agreement).

 

(a distinct, separate provision in a pretrial agreement offering to make restitution can provide a significant inducement for a convening authority to accept an accused’s offer to plead guilty; where the record on appeal demonstrates that the accused sought a more favorable pretrial agreement by extending an offer to make restitution and reflects the significance attached by the convening authority to that offer, there can be little doubt that the restitution provision was material to the resultant pretrial agreement).

 

(in this case, where the inquiry conducted by the military judge clearly established a disagreement as to a material term in the agreement, that circumstance alone provided a factual and legal basis for the convening authority to withdraw; although the military judge’s inquiry did not focus on the disagreement as to a material term component of R.C.M. 705(d)(4)(B), his inquiry and the record nonetheless demonstrate that as a proper basis for withdrawal under the rule; because the withdrawal provisions of R.C.M. 705(d)(4)(B) are disjunctive, we need not determine whether there was specific performance or detrimental reliance upon the agreement by the accused nor do we need to address what remedies might be appropriate in a case involving detrimental reliance).

 

(we do not hold that a convening authority may withdraw from a pretrial agreement by simply claiming that a disagreement exists; rather, the President has required that the existence of a disagreement and the materiality of the terms at issue be ascertained by the military judge through his or her inquiry; that requirement reflects the critical role that a  military judge plays during a plea colloquy in ensuring that the record reflects a clear, shared understanding by the parties of the terms of the agreement).

 

(in this case, we reject the accused’s claim that a withdrawal from the pretrial agreement was improper because the convening authority did not personally make the decision to withdraw; when the SJA recommended to the convening authority that the accused’s offer to plead guilty be accepted, he was induced to do so based on the accused’s offer to make restitution; following their discussion about this case, the SJA believed that the restitution provision was the reason the convening authority approved the offer and he left the office with the clear understanding that if there were no restitution prior to trial, there was no deal; as the SJA knew the circumstances under which the convening authority approved the offer, once those circumstances were no longer present, the trial counsel who had communicated with the SJA on this matter could effect the Government’s withdrawal from the pretrial agreement). 

 

2004

 

United States v. Hansen, 59 MJ 410 (pretrial agreements are mortar and brick in the military justice system; the knowing and intelligent waiver of constitutional rights is the foundation upon which they rest; this Court does not require incantation of constitutional formulas; however, we do require a record of confidence that an individual accused had his rights explained to him, understood his rights, and knowingly and intelligently waived them; because the relinquishment of these bedrock constitutional rights is the essence of the plea bargain, we will not presume or imply that a military accused understood them and waived them, absent a demonstrable showing in the record that he did in fact do so).

 

United States v. Felder, 59 MJ 444 (waiver of Article 13 motions is a permissible plea agreement term).

 

(where a military judge is faced with a pretrial agreement that contains an Article 13 waiver, the judge should inquire into the circumstances of the pretrial confinement and the voluntariness of the waiver, and ensure that the accused understands the remedy to which he would be entitled if he made a successful motion).

 

(RCM 910(f) requires a meaningful inquiry into the provisions of every pretrial agreement; in the instant case, where the pretrial agreement included a provision for appellant to waive motions for sentence credit based on Article 13 and restriction tantamount to confinement and the military judge failed to inquire into that provision with appellant, that failure was error).

 

(even though the military judge’s failure to inquire into the Article 13 and restriction tantamount to confinement waiver provision of appellant’s pretrial agreement was error, appellant is not entitled to relief where he neither averred nor demonstrated any material prejudice to a substantial right resulting from this error as is required under Article 59(a), UCMJ). 

 
United States v. Lundy, 60 MJ 52 (where pretrial agreement called for appellant’s wife to receive waived forfeitures, but the payment of forfeitures was made to appellant rather than his wife, as such error rested with the government, and such evidence as exists in the record indicates that appellant took steps to ensure that payments went to his wife’s bank account, we conclude that the record does not establish that appellant acted in a manner so inconsistent with the pretrial agreement that the government would be relieved of its responsibilities under the agreement).

(when the government does not fulfill a material provision in a pretrial agreement, remedial action is required in the form of specific performance, withdrawal of the plea, or alternative relief; however, an appellate court cannot impose alternative relief on an unwilling appellant).

(where the convening authority breached a material provision of a pretrial agreement by paying waived forfeitures to appellant’s wife at the E-1 rate, instead of at the E-6 rate, as the result of the convening authority’s failure to seek a waiver or exception to an existing Army regulation to suspend the reduction, remedial action was necessary, notwithstanding that appellant’s family received dependent-abuse compensation).  

2003

United States v. Edwards, 58 MJ 49 (any provisions of a pretrial agreement that inhibit the providence inquiry or inquiry into the pretrial agreement would not be appropriate).

(to the extent that a term in a pretrial agreement violates public policy, it will be stricken from the pretrial agreement and not enforced; under those circumstances, public policy prohibits the accused from waiving the underlying right or privilege as part of the pretrial agreement; in turn, if the provision is not contrary to public policy or R.C.M. 705, an accused may waive the underlying right if that waiver is knowingly and voluntarily executed).

("A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of ... the right to complete sentencing proceedings.") does not prohibit an accused from waiving his right to notify the court of the circumstances surrounding a Government interrogation of him conducted without notice to his defense counsel).

(R.C.M. 705 clearly provides that acceptance of the pretrial agreement is solely within the discretion of the convening authority; the convening authority is neither bound by the initial discussions between the Government and the defense counsel nor estopped from changing his position on the proposed agreement).

United States v. Perron, 58 MJ 78 (it is fundamental to a knowing and intelligent plea that where an accused pleads guilty in reliance on promises made by the Government in a pretrial agreement, the voluntariness of that plea depends on the fulfillment of those promises by the Government).

(where there is a mutual misunderstanding regarding a material term of a pretrial agreement, resulting in an accused not receiving the benefit of his bargain, the accused’s pleas are improvident; remedial action, in the form of specific performance, withdrawal of the plea, or alternative relief, is required).

(when it becomes apparent that a material provision in a pretrial agreement is ineffective, appellant’s pleas become involuntary and improvident, warranting relief).

(when an appellate court substitutes its own remedies in place of negotiated plea terms, it steps into the accused’s shoes and is in effect renegotiating the accused’s plea agreement and waiving his rights; this an appellate court cannot do without the accused’s consent).

(where the accused does not agree that a particular form of relief rectifies a failed material term and provides him with the benefit of the bargain--and therefore calls into question the voluntariness of the guilty plea—it is doubtful that an appellate court could, nevertheless, determine with a necessary degree of certainty that the accused would have pleaded guilty had he been offered the relief he is ultimately being compelled to accept).

(where the failed term in the agreement involves pure economic concerns, finding relief of equal value is possible; but where the promised benefit relates to non-economic concerns--e.g. the immediate care of a family--or where the promise has indeterminable value, determining the benefit of the bargain becomes a guessing game, and may result in undervaluing the promised benefit to the accused).

(remedies for the failure of a material term in a pretrial agreement must ultimately support a conclusion that the plea was voluntary, and imposing alternative relief on an unwilling appellant does not do this).

(imposing alternative relief on an unwilling appellant to rectify a mutual misunderstanding of a material term in a pretrial agreement violates the appellant’s Fifth Amendment right to due process; an appellate court may determine that alternatives to specific performance or withdrawal of a plea could provide an appellant with the benefit of his or her bargain--and may remand the case to the convening authority to determine whether doing so is advisable--but it cannot impose such a remedy on an appellant in the absence of the appellant’s acceptance of that remedy).

(a pretrial agreement is an agreement between the convening authority and the accused; an appellant cannot dictate the terms of a pretrial agreement to the convening authority; this is true on review as well as at the outset; in other words, if the parties cannot agree on alternative relief, and specific performance is not available, the result is to nullify the original pretrial agreement, returning the parties to the status quo ante).

2002

United States v. Smith, 56 MJ 271 (when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled; the accused is entitled to the benefit of any bargain on which his guilty plea was premised).

(the military judge must ascertain the understanding of each party to a pretrial agreement during the inquiry into the providence of the plea, and after imposing sentence, the military judge must address the parties’ understanding of any limitations on the sentence in order to assure that there is a mutual agreement).

(if the military judge determines that the accused does not understand the material terms of a pretrial agreement, or that the parties disagree as to such terms, the military judge shall conform, with the consent of the Government, the agreement to the accused's understanding or permit the accused to withdraw the plea).

(when the issue is whether the collateral consequences of a court-martial constitute a material component of a pretrial agreement, a guilty plea may be withdrawn only when the collateral consequences are major and the appellant's misunderstanding of the consequences (a) results foreseeably and almost inexorably from the language of a pretrial agreement; (b) is induced by the trial judge's comments during the providence inquiry; or (c) is made readily apparent to the judge, who nonetheless fails to correct that misunderstanding).

(in the event of a misunderstanding as to a material term in a pretrial agreement, the remedy is either specific performance of the agreement or an opportunity for the accused to withdraw from the plea; the Government may provide alternative relief if it will achieve the objective of the agreement).

(where there has been a mutual misunderstanding as to a material term, the convening authority and an accused may enter into a written post-trial agreement under which the accused, with the assistance of counsel, makes a knowing, voluntary, and intelligent waiver of his right to contest the providence of his pleas in exchange for an alternative form of relief).

(where the record demonstrates that all participants in the proceeding proceeded on the assumption that appellant’s pay would provide the basis upon which the forfeiture protection provisions of the pretrial agreement would be implemented, and where in fact appellant was entitled to no pay because he was held beyond his term of service, there was a misunderstanding as to a material term in a pretrial agreement).

(remedial action is required where the circumstances reflect pleas that rest in a significant degree on an agreement with the Government that was a material part of the consideration, and the Government has not fulfilled its part of the agreement).

(assuming that the bargained-for benefit of a pretrial agreement is outside the authority of the Government to provide, it is necessary to determine whether some appropriate alternative relief is available as an adequate means of providing appellant with the benefit of his bargain; if such appropriate alternative relief is available, the Court of Criminal Appeals may affirm the findings and so much of the sentence that will reflect this relief; if not, in the absence of appellant having received his full consideration in return for his pleas of guilty, the court must set aside the findings and sentence and authorize a rehearing).

United States v. Spaustat, 57 MJ 256 (interpretation of a pretrial agreement is a question of law, reviewed de novo).

United States v. Terlep, 57 MJ 344 (the entrance of the Government and appellant into a plea bargain for a lesser charge than rape does not change the facts as to what happened to the victim that night in her view; the search for truth in the courtroom need not be dispensed with simply because a plea agreement exists outside it; 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).

2001

United States v. Williams, 55 MJ 302 (if an accused does not receive the benefit of the bargain reflected in the negotiated pretrial agreement, the pleas will be treated as improvident, the findings will be set aside, and the accused will be subject to retrial).

(where appellant sought in his pretrial agreement to protect his family against potential forfeitures, he gained the benefit of that protection in that no forfeitures were adjudged and there was no evidence that automatic forfeitures were collected; there were no representations as to entitlement to pay beyond his term of service which would serve to improvidence the plea).

2000

 

United States v. Clark, 53 MJ 280 (insofar as a term in a pretrial agreement could be interpreted to require that polygraph evidence be placed in a stipulation of fact, the appropriate remedy would be to not enforce the impermissible terms and to strike the reference to the polygraph from the stipulation (see Military Rule of Evidence 707)).

United States v. Williams, 53 MJ 293 (an accused is entitled to the benefit of the bargain on which a guilty plea is based; where he does not receive the benefit of his bargain, his pleas may not be provident).

United States v. Hardcastle, 53 MJ 299 (an accused is entitled to the benefit of the bargain on which a guilty plea is based; where he does not receive the benefit of his bargain, his pleas may not be provident).

1999

 

United States v. Acevedo, 50 MJ 169 (interpretation of a pretrial agreement is a question of law to be reviewed de novo, generally applying basic principles of contract law except, however, where those principles are outweighed by the Constitution’s Due Process Clause protections for an accused).

(where terms of pretrial agreement are unambiguous, intent of the parties is discerned from the four corners of the document; when the terms are ambiguous, extrinsic evidence is admissible to determine the meaning of an ambiguous term).

(provision of pretrial agreement, providing that punitive discharge could be approved as adjudged and further providing that a dishonorable discharge would be suspended, did not require suspension of adjudged/approved bad-conduct discharge, and there was no support on the record for appellant’s claim that agreement was ambiguous).

(where judge’s interpretation of a pretrial agreement does not comport with that of the accused, defense counsel has a duty to reveal that discrepancy in open court).

(pretrial agreement providing that both a suspended dishonorable discharge and unsuspended bad-conduct discharge were permissible punishments did not create situation in which one discharge would be considered less serious and thus preclude approval of the other).

United States v. McLaughlin, 50 MJ 217 (impermissible pretrial agreement terms should be declared unenforceable by military judge while upholding the remaining agreement; RCM 705(c)(1)(B))

(appellant is not entitled to relief on appeal from impermissible term of pretrial agreement waiving speedy trial issue absent prima facie showing or colorable claim of entitlement to relief, such as a showing of prejudice, demand for speedy trial, or lack of due diligence).

United States v. Gilbert, 50 MJ 176 (where terms of pretrial agreement were unambiguous, and plain language permitted approval of unsuspended bad-conduct discharge, clause requiring suspension of approved dishonorable discharge did not compel convening authority to suspend bad-conduct discharge).

(pretrial agreement providing that both a suspended dishonorable discharge and unsuspended bad-conduct discharge were permissible punishments did not create situation in which one discharge would be considered less serious and thus preclude approval of the other).

United States v. Mitchell, 50 MJ 79 (where appellant does not receive the benefit of a bargained-for pretrial agreement, his pleas will be treated as improvident).

United States v. Davis, 50 MJ 426 (a fundamental principle underlying jurisprudence on pretrial agreements is that the agreement cannot transform the trial into an empty ritual; this principle and numerous court decisions have been incorporated into RCM 705(c)(1)(B) prohibiting enforcement of pretrial agreement terms or conditions which deprive an accused of certain enumerated rights).

United States v. Sherman, 51 MJ 73 (where post-trial submissions from appellant, defense counsel, and trial counsel raise factual dispute about (1) whether there was a sub rosa agreement not to raise motions concerning unlawful command influence and illegal pretrial confinement, (2) whether appellant gave untruthful answers to trial judge, (3) whether defense counsel knew that appellant’s answers were untruthful, and (4) whether other matters suggesting unlawful command influence were correct, there were too many unresolved questions in the record for the court to affirm; case remanded for a fact-finding hearing on specified issues).

United States v. McFadyen, 51 MJ 289 (provision of pretrial agreement waiving right to present a motion for additional sentence credit because of unlawful pretrial punishment is not prohibited by RCM 705(c)(1)(B) and is not so sufficiently different from other rights which may be waived pursuant to a pretrial agreement as to warrant determination that it cannot be waived).

(for all cases tried 90 days after August 16, 1999, where a pretrial agreement contains an Article 13, UCMJ, waiver, the military judge should inquire into the circumstances of the pretrial confinement and the voluntariness of the waiver, and ensure that the accused understands the remedy to which he would be entitled if he made a successful motion).

United States v. Pilkington, 51 MJ 415 (after arms-length negotiations, a convening authority may approve post-trial modifications to a pretrial agreement where the accused:  (1) was operating of his/her own free will; (2) has not been stripped of substantial rights; (3) has not been coerced into making the post-trial agreement; and (4) has not otherwise been deprived of his/her due process rights).

United States v. Mitchell, 51 MJ 490 (a probationer who cannot comply with a pretrial agreement through his own fault is not permitted to use indigence to excuse his failure to comply with the agreement; good faith remains the linchpin of the analysis).

(the Due Process Clause does not protect an accused who offers to make full restitution, knowing full well that he cannot; nor does it protect an accused who fails to take timely and reasonable steps to safeguard his assets so that he can make restitution as promised).

United States v. Villareal, 52 MJ 27 (even though appellant was placed in a different position by the convening authority’s withdrawal from a pretrial agreement, this is not the type of legal prejudice that would entitle appellant to relief).

(an accused does not have a constitutional right to plead guilty, and the discretion to plea bargain is a policy and leadership decision; however, under certain circumstances, when an accused has relied upon a pretrial agreement and performed some affirmative act or omission equating to detrimental reliance, specific performance of that pretrial agreement will be ordered).

(there was no detrimental reliance on pretrial agreement such as would justify ordering specific performance of that agreement where appellant knew the convening authority withdrew form the agreement before appellant had the opportunity to rely on the agreement in any manner that would legally prejudice his right to a fair trial).

United States v. Jones, 52 MJ 60 (the requirements of RCM 705 that all terms, conditions, and promises of a pretrial agreement be in writing are primarily designed to preclude misunderstandings about the terms of an agreement and to prohibit sub rosa agreements; open plea bargaining is important to ensure proper confrontation and cross-examination).

United States v. Rock, 52 MJ 154 (credits against confinement awarded by a military judge apply against the adjudged sentence unless the terms of a pretrial agreement dictate otherwise; this rule applies whether or not the adjudged period of confinement is less than or exceeds that provided for in a pretrial agreement).

(where portions of a sentence to confinement have already been served, either actually [pretrial confinement] or constructively [restraint tantamount to confinement], the resultant credit for confinement served must be applied to actual confinement to be served, whether that be established by the adjudged sentence or by the limitations of a pretrial agreement; credit for pretrial confinement, or its equivalent, cannot be bargained away in arriving at a sentence limitation).


Home Page |  Opinions & Digest  |  Daily Journal  |  Scheduled Hearings  |  Search Site