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15. Pretrial Agreements

Chapter 15

Pretrial/Plea Agreements

  1.       Introduction

  2.       Basic Components of a PA

  3.       Negotiation and Form of Agreement

  4.       Military Judge’s Inquiry at Trial

  5.       Withdrawal from PA

  6.       Content

  7.       Remedies

  8.       Post-Trial Issues and Defects

 

I.INTRODUCTION

A.Defined.  A plea agreement (PA) is an agreement between the convening authority and the accused. Only the convening authority can bind the government. PAs are governed by R.C.M. 705.  Practitioners should note that prior to the 2016 Military Justice Act, the terminology used for an agreement was a “pretrial agreement.”  To the extent that older case law is discussed herein, this chapter will use the older terminology to avoid confusion about which law was applied.

B.Major changes made by the 2016 Military Justice Act (2016 MJA).  The 2016 MJA introduced a new article—Article 53a—which serves as the authority to enter into plea agreements.  Among other things, the Article specifies what may be the subject of agreement, stipulates when the military judge must reject an agreement, makes certain exceptions for agreements affecting a mandatory minimum, and provides that a court-martial is bound by the limitations expressed in the agreement once the military judge accepts the agreement.

C.Significant differences between the 2016 MJA and the legacy system.

1.Legacy system.  Under the legacy system, a convening authority’s power to grant clemency under Article 60, UCMJ forms the basis upon which the agreement rested.  Under that system, a typical pretrial agreement includes an accused’s promises to plead guilty in exchange for the convening authority’s agreement to limit the sentence imposed at trial when the case reaches her for initial action. After the accused enters a plea of guilty at trial, the military judge examines the agreement and ensure the accused understands it.  After the judge accepts the plea as providently made, the sentencing authority (the military judge or panel) will proceed to sentencing without knowledge of the sentence limitation the convening authority has agreed to. To facilitate this, the PTA is physically separated into two parts (i.e. separate pieces of paper): the agreement (or Part I) and the quantum (or Part II). The accused will get the benefit of the lesser sentence - that contained within the agreement or that announced at trial. For example, suppose the accused agrees to plead guilty to larceny in exchange for an approved sentence no greater than 8 months confinement.  Assume that at trial the military judge adjudges a sentence of only 6 months confinement.  In that case, the agreement has no effect on the sentence because the convening authority may only approve a sentence of 6 months confinement. On the other hand, if the military judge had sentenced the accused to 12 months of confinement, then the accused would receive a benefit from the agreement because the convening authority would only be able to approve 8 months of confinement.  Because the basis for the agreement is the clemency power, post-trial agreements are possible, and the convening authority is responsible for monitoring and enforcing any term required to be performed after adjournment.

2.The 2016 MJA.  Under the 2016 MJA, the plea agreement is to a sentence limitation that acts directly on the power of the court-martial.  Under this system, once the plea agreement is accepted by the judge, the court is bound.  The court will know the agreement and sentence within the limitations imposed by the agreement.  Because the agreement is a limitation expressed ab initio, rather than an agreement to exercise clemency over a previously adjudged sentence, practitioners should take care to understand the full sentencing landscape before proposing or agreeing to a term.

3. Straddling cases.  Straddling cases exist when crimes charged pre and postdate 1 January 2019.  Practitioners must understand both systems.  The old Article 60 and R.C.M. 705 apply by default in straddling cases.  However, the accused may elect to opt-in to to the new sentencing system and the new Article 53a and R.C.M. 705.  If the accused chooses to opt-in, the new sentencing and plea agreement system will apply to all charges and specifications.

II.BASIC COMPONENTS OF A PA

A.A promise by the accused to plead guilty to, or to enter a confessional stipulation as to one or more charges and specifications, and to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under R.C.M. 705.

          B. Per R.C.M. 705, a PA is a promise by the convening authority to do one or more of the following:

               1. Refer the charges to a certain type of court-martial;

               2.  Refer a capital offense as non-capital;

               3.  Withdraw one or more charges or specifications from the court-martial;

               4.  Have the trial counsel present no evidence as to one or more specifications or portions thereof; and/or

               5.  Limit the sentence that may be adjudged by the court-martial.

                        NOTE:   Per AR 27-10, para. 5–27.c  (Interim, 1 Jan 19), and subject to certain restrictions, the CA may agree to a specific sentence. 

C.The following cases help to flesh out the nature of pretrial agreements and their basic use at trial United States v. Brice, 38 C.M.R. 134 (C.M.A. 1967); United States v. Monett, 36 C.M.R. 335 (C.M.A. 1966); United States v. Neal, 12 M.J. 522 (N.M.C.M.R. 1981).

III.NEGOTIATION AND FORM OF AGREEMENT

A.Negotiations.  PA negotiations may be initiated by the accused, defense counsel, trial counsel, the staff judge advocate, convening authority, or their duly authorized representatives. Either the defense or government may propose any term or condition not prohibited by law or public policy. Government representatives must negotiate with defense counsel unless the accused has waived the right to counsel.  Under Article 53a, the military judge may not participate in discussions between the parties concerning prospective terms and conditions of a PA.

B.ProposalIf the accused elects to propose a PA, the defense shall submit a written offer. All terms, conditions, and promises between the parties shall be written. Unwritten, or sub rosa, agreements are prohibited. The proposed agreement shall be signed by the accused and defense counsel, if any. If the agreement contains any specified action on the adjudged sentence, such action shall be set forth on a page separate from the other portions of the agreement.

1.Terms not in writingUnited States v. Mooney, 47 M.J. 496 (C.A.A.F. 1997).  Military judge erred by accepting accused’s guilty plea and pretrial agreement after it was clear that the pretrial agreement was not in writing as required by R.C.M. 705(d)(2) [now R.C.M. 705(e)(2)]. However, while CAAF criticized counsels’ and the judge’s disregard for the rule, court held that reversal of conviction was not required where the specific terms of the oral agreement were placed on the record, all parties acknowledged and complied with terms of agreement, and accused conceded that he received the benefit of the bargain.

2.Terms contained in stipulation of factUnited States v. Forrester, 48 M.J. 1 (C.A.A.F. 1998).  Term in stipulation of fact which required the accused to waive his right to “any and all defenses” did not violate R.C.M. 705 or public policy. CAAF cautions the Government not to attempt to avoid the requirements of R.C.M. 705(c)(1)(B) by including terms in a document other than the pretrial agreement itself (terms must not be in a stipulation of fact).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

3. Cases straddling the effective date of Military Justice Act of 2016.  In a case where at least one charged offense occurred before 1 January 2019 and at least one charged offense occurred on or after 1 January 2019, to ensure that any sentence limitation contained in the agreement will be in compliance with R.C.M. 705, the plea agreement will contain a term stating whether or not the accused agrees to elect to have the Military Justice Act of 2016 (MJA 16) sentencing rules apply.  AR 27-10, para. 5–27.d.(1) (Interim, 1 Jan 19).  The trial counsel, VWL, or other government representative will consult with victims of crimes, and when applicable, the victim’s SVC, concerning, among other things, negotiations of plea agreements and their potential terms.  AR 27-10, para. 17–5.a.(4) (Interim, 1 Jan 19).

C.AcceptanceThe convening authority may either accept or reject an offer of the accused to enter into a pretrial agreement or may propose by counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the convening authority. When the convening authority has accepted a pretrial agreement, the agreement shall be signed by the convening authority or by a person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority to sign.

D. Victim input.  Pursuant to R.C.M. 705(e)(3)(b), whenever practicable, the government will provide the victim an opportunity for input as to the pretrial agreement and their potential terms.  Prior to approving a plea agreement in a case in which a person has suffered personal injury or property loss/damage as a result of an offense, the convening authority will consider the appropriate-ness of requiring victim restitution as a term of the plea agreement.  AR 27-10, para. 5-27.a. (Interim, 1 Jan 19).

IV.MILITARY JUDGE’S INQUIRY AT TRIAL

A.General.  The military judge is required to ensure the accused understands each provision of the PA and that entry into the agreement was knowing and voluntary.  Additionally, the military judge has an implied duty to determine whether there exists a mandatory basis to reject the agreement.  See Art 53a(b)(1)-(5).

B.Judicial Responsibility.  The following cases help to flesh out this requirement.

1.Waiver of Motions.  United States v. Felder, 59 M.J. 444 (C.A.A.F. 2004). MMilitary judge did not inquire into a term of the PTA regarding defense’s waiver of any motions for sentence credit based on Article 13 and/or restriction tantamount to confinement. Accused’s counsel did inform the military judge that no punishment under Article 13 or restriction tantamount to confinement had occurred. While the judge’s failure to discuss the term was error, the accused failed to show the error materially prejudiced a substantial right.  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

2.Meeting of the minds.  United States v. Dunbar, 60 M.J. 748 (A. Ct. Crim. App. 2004). The accused’s PTA stated “[a]ny adjudged confinement of three (3) months or more shall be converted into a [BCD], which may be approved; any adjudged confinement of less than three (3) months shall be disapproved upon submission by the accused [of a Chapter 10]” with a handwritten annotation stating “with an Other Than Honorable (OTH) discharge.” The MJ sentenced the accused to a BCD, two months confinement, and reduction to PFC, causing the parties to disagree whether the convening authority could approve the BCD. Defense argued the convening authority could not approve both an OTH and a BCD discharge. The government’s position was that the accused could submit a Chapter 10 and the convening authority must disapprove the two months confinement but the PTA did not require the convening authority’s approval of the Chapter 10. R.C.M. 910(h)(3) provides, after the sentence is announced, if the parties disagree with the PTA terms the MJ shall “conform, with the consent of the Government, the agreement to the accused’s understanding or permit the accused to withdraw the plea.” The MJ did not clarify the accused’s understanding or attempt to conform the agreement. Court granted rescission for lack of meeting of the minds; findings and sentence set aside.

3.  Misconduct clause.  United States v. Sheehan, 62 M.J. 568 (C.G. Ct. Crim. App. 2005). Military judge failed to cover a misconduct clause and “specially negotiated provisions” of the accused’s PTA and provided an incorrect explanation as to another provision. CGCCA found that the military judge erred but that his omissions and misleading explanation did not prejudice the accused’s substantial personal rights.

4.  Responsibility to ‘police’ terms.  United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984) (“While the military judge may not have the authority to directly intervene in the pretrial negotiations between an accused and a convening authority, he does have the 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.”).

V.WITHDRAWAL FROM PA

A.General.  Under R.C.M. 705(e)(4), “[t]he accused may withdraw from a plea agreement at any time prior to the sentence being announced,” but shall be permitted to withdraw the plea after acceptance only for good cause shown.  The convening authority may withdraw “at any time before substantial performance by the accused of promises contained in the agreement,” and under certain other limited conditions.  Additionally, the accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a pretrial agreement only as provided in R.C.M. 910(h) or 811(d).”

B.Entry into a new PTA subsequent to withdrawal.  United States v. Bray, 49 M.J. 300 (C.A.A.F. 1998). A convening authority may increase the sentence cap of a pretrial agreement when an accused withdraws a guilty plea after successful completion of a providence inquiry and, in the same court-martial, later reenters pleas of guilty to the same charges. The accused entered guilty pleas to assault and battery on a child, communicating a threat, and drunk driving. During extenuation and mitigation, a defense witness testified that the accused could have committed the offenses after being exposed to insecticide poisoning. Accused withdrew his guilty plea and from the pretrial agreement, which limited confinement to 20 years to pursue the “bug spray” defense. Accused obtained a new pretrial agreement after changing his mind. The sentence cap under the new PTA limited confinement to 30 years. Neither case law nor RCM 705 prohibit a convening authority from increasing a sentence cap in a new pretrial agreement after the convening authority properly withdraws from the original pretrial agreement. Accused chose to reopen the initial providence inquiry based on the “bug spray” defense and voluntarily withdrew from the original agreement after full consultation with counsel. The consequences of withdrawal were addressed in the original agreement, explained on the record, and the accused failed to object at trial.

C.Accused’s post-trial withdrawal of plea.  United States v. Olson, 25 M.J. 293 (C.M.A. 1987), was decided under the legacy system.  This case is likely no longer good law because under the 2016 MJA the convening authority fully performs on the agreement upfront.  Accused had right to withdraw his guilty plea in light of additional, unanticipated subtraction from pay, if he had good-faith belief that he had fully settled his liability to reimburse Government for overpayment under allegedly false travel vouchers and if that belief had induced accused’s entry of his pleas.

D.CA withdrawal

1.General.  The standard for government withdrawal under R.C.M. 705 has changed under the 2016 MJA. 

a)Legacy system.  Under legacy RCM 705(d)(5)(b), the convening authority could withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement, upon the 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, or if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review. As a practical matter, once the accused begins performance, the convening authority has limited opportunity to withdraw from the PTA. United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009); United States v. Manley, 25 M.J. 346 (C.M.A. 1987) (once accused completed performance of pretrial agreement, as modified by parties at trial, the convening authority was not authorized to unilaterally withdraw from the agreement). Performance will often take the form of entry into a stipulation of fact.  The basic rationale for this rule is to protect an accused who is in the midst of performing in reliance on the convening authority’s agreement to exercise clemency after trial.  While the convening authority may not have performed yet, he is still legally obligated to do so at the appropriate time.  Courts have strictly construed this rule.  See, e.g., United States v. Dean, 67 M.J. 224 (C.A.A.F. 2009).  See also United States v. Pruner, 37 M.J. 573 (A.C.M.R. 1993). (convening authority withdrawal effective where performance of pretrial agreement was not commenced because the accused had not yet signed proposed stipulation of fact and had not yet requested witnesses); United States v. Villareal, 52 M.J. 27 (C.A.A.F. 1999) (Convening authority could lawfully withdraw from pretrial agreement based upon pressure from victim’s family members, where the accused had not relied to his detriment on the agreement in any manner that would prejudice his right to a fair trial.)

b)2016 MJA.  The new rule, expressed at R.C.M. 705(e)(4)(B), modifies the language concerning ‘beginning of performance,’ and provides that the convening authority may withdraw “at any time before substantial performance by the accused of promises contained in the agreement.”  The basic rationale behind this rule appears to be to protect the convening authority.  Under the 2016 MJA, the convening authority’s performance occurs at the outset, in directing the court to sentence in accordance with the limitations expressed in the agreement.  The term requiring substantial performance therefore appears to protect a convening authority from a situation where an accused obtains the favorable sentence limitation without having substantially performed.

2.Where no Meeting of the minds.  United States v. Williams, 60 M.J. 360 (C.A.A.F. 2004). Accused’s pretrial agreement required him to reimburse his victim(s) “once those individuals and the amounts owed have been ascertained.” On the day of trial the government withdrew from the PTA reasoning, under R.C.M. 705(d)(4)(B), that the accused’s failure to reimburse his victim breached a material PTA term. Defense argued he was not in breach because the term failed to establish a time limit, allowing for restitution after trial. Defense requested specific performance of the PTA arguing (also under R.C.M. 705(d)(4)(B)) that his execution of a stipulation of fact with the government constituted performance and he had not otherwise breached any material term. CAAF did not rule whether entrance into a stipulation of fact constitutes performance or whether the accused failed to fulfill a material term. CAAF, focusing on the parties’ failure to establish a meeting of the minds for the restitution time limit, held, under R.C.M. 705(d)(4)(B), that the government can withdraw from a PTA if the MJ “discloses a disagreement as to a material term in the agreement.”

3.Accused fails to perform material term.  United States v. Parker, 62 M.J. 459 (C.A.A.F. 2006). Accused entered into a PTA to plead guilty to AWOL and missing movement by neglect in return for the CA suspending any adjudged BCD or confinement in excess of thirty days. The military judge, however, rejected the accused’s plea to missing movement by neglect because the accused said he only overheard statements by his NCOs, as opposed to a direct or official conveyance, regarding the place and time of the movement. When the military judge rejected the accused’s plea, the government withdrew from the PTA and moved forward to trial before the military judge alone on the charge of missing movement by design. The military judge found the accused guilty of missing movement by design and sentenced him to a BCD and five months confinement.  After trial, the accused submitted a clemency letter stating he did not desire suspension of his BCD. CAAF held that the MJ did not erroneously reject the accused’s plea and defense never requested the MJ to reopen the plea. Therefore, PTA failed to exist and the accused’s express and repeated request for a non-suspended BCD during his unsworn statement and clemency matters controls.

E.Withdrawal by Government before beginning of performance.

VI. CONTENT

A.Permissible Terms/Conditions

1.Stipulation of fact. A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty is entered or as to which a confessional stipulation will be entered. United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977).  Stipulations of fact are governed by R.C.M. 811.

a)Aggravation evidence.  Government can require the accused to stipulate to aggravation evidence or refuse to accept pretrial agreement. United States v. Harrod, 20 M.J. 777 (A.C.M.R. 1985); United States v. Sharper, 17 M.J. 803 (A.C.M.R. 1984). The Government can also require accused to agree to both truth and admissibility of matters contained in the stipulation of fact. The stipulation should be unequivocal that counsel and the accused agree not only to the truth of the matters stipulated but that such matters are admissible in evidence against the accused.

b)Uncharged misconduct.  United States v. Vargas, 29 M.J. 968 (A.C.M.R. 1990). Defense counsel objected at trial to the inclusion of the uncharged misconduct and indicated that the accused only agreed to the stipulation out of fear of losing the deal. Military judge gave the accused an opportunity to withdraw, but the accused elected to adhere to the stipulation; no overreaching by the Government. See also United States v. Mezzanatto, 513 U.S. 196 (1995) (agreement to waive evidentiary provisions are subject to waiver by voluntary agreement of the parties).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

2.Promise to testify. Accused may agree to testify or provide assistance to investigators as a witness in the trial of another person. However, it is likely impermissible to require an accused to testify without a grant of immunity. See United States v. Profitt, 1997 WL 165434 (A.F. Ct. Crim. App. 1997) (unpub); United States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997), affirming 44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term which required accused to “testify in any trial related in my case without a grant of immunity” did not violate public policy, under facts of this case as the accused had not been called to testify. Both cases discussed supra.

3.Provide restitution. United States v. Mitchell, 46 M.J. 840 (N-M. Ct. Crim. App. 1997). Accused who fails to make full restitution pursuant to a defense proposed term in PTA is not unlawfully deprived of the benefit of the PTA where the failure to comply with the restitution obligation is based on indigency. Accused uttered bad checks and defrauded financial institutions of $30,733. The defense proposed a term that required accused to make full restitution in exchange for suspension of confinement in excess of 60 months. The accused was sentenced, inter alia, to 10 years confinement. While in jail, the accused made partial restitution until his business failed. The accused, now indigent, cannot necessarily use indigency to negate operation of PTA term requiring full restitution. CA properly vacated suspension under PTA.

4.Conform accused’s conduct to certain conditions of probation.  Generally, the period of suspension acceptable relates to the length of the sentence adjudged.

a)Before entry of judgment. While this term is authorized under the 2016 MJA, it appears that the military judge, and not the convening authority, will have the obligation to enforce the agreement.  The following two cases were decided under the legacy system in which the convening authority declined to exercise the agreed upon clemency post-trial.

(1)United States v. Bulla, 58 M.J. 715 (C.G. Ct. Crim. App. 2003). Pretrial agreement included a misconduct provision “that permitted the convening authority, among other things, to disregard the sentence limiting part of the pretrial agreement if the [accused] committed a violation of the UCMJ between the time the sentence was announced at her court-martial and the time the convening authority acted on the sentence.” Accused was in an unauthorized absence status for two days shortly after the end of court-martial proceedings. Relying on the misconduct provision, the convening authority approved the sentence as adjudged, rather than as would have been limited by the PTA (which would have suspended the BCD for twelve months from action). Although CGCCA had “reservations about some of the potential results of this misconduct provision, it held that [the] provision [did] not violate public policy,” at least as applied to a sentence element that the convening authority only agreed to suspend. Further, accused’s two-day AWOL was a “material breach” of the PTA that released the convening authority from the agreement. Finally, court finds that prior to finding accused violated the misconduct provision, convening authority should hold a proceeding similar to that provided for by Article 72, UCMJ and R.C.M. 1109 (vacation proceedings) and apply a preponderance of the evidence burden of proof. Although convening authority applied a lesser, incorrect burden of proof, the error was harmless.

(2)United States v. Tester, 59 M.J. 644 (A. Ct. Crim. App. 2003). Pretrial agreement contained deferral of confinement provision and misconduct provision similar to that in Bulla, supra. Court held procedures of R.C.M. 1109 (vacation of suspension) must be complied with before an alleged violation of such terms may relieve the convening authority of the obligation to fulfill the agreement. Convening authority followed provisions to rescind deferral of confinement.

b)15 year suspensionUnited States v. Spriggs, 40 M.J. 158 (C.M.A. 1994) (an indeterminate term of suspension of up to 15 years to complete sex offender program was inappropriate).

c)31 year suspension.  United States v. Wallace, 58 M.J. 759 (N-M. Ct. Crim. App. 2003). Accused sentenced to life without parole. In accordance with his pretrial agreement, the convening authority suspended all confinement in excess of 30 years for the period of confinement plus 12 months after accused’s release. Accused argued that the period of suspension could only be 5 years from the date sentence was announced. HELD: Pretrial agreement provision imposing a suspension period for the period of confinement and one year from date of release does not violate public policy. R.C.M. 1108 states that a period of suspension should not be unreasonably long. “It is this Court’s opinion that placing Accused on probation for 31 years of an adjudged life sentence without possibility of parole is not unreasonably long and does not violate public policy.”

5.Waive unreasonable multiplication of charges. United States v. Mitchell, 62 M.J. 673 (N-M. Ct. Crim. App. 2006). The accused agreed in his PTA to waive a motion alleging unreasonable multiplication of charges. The military judge reviewed this provision with the accused but did not ask him if he had an unreasonable multiplication of charges motion to make. On appeal, defense argued that the term violated public policy, requiring the nullification of the accused’s PTA under R.C.M. 705(c)(1)(B).  Based on the facts of the accused’s case, the provision did not violate public policy.  See also United States v. Hardy, 77 M.J. 438 (CAAF 2018) (finding waiver where accused failed to raise UMC and there was no term in the PTA specifically addressing the issue).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

6.Waive Article 32 Preliminary Hearing and other procedural protections. Accused may waive the Article 32 as well as the right to trial by court-martial composed of members or the right to request trial by military judge alone, or the opportunity to obtain the personal appearance of witnesses at sentencing proceedings. R.C.M. 705(c)(2)(E).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

7.Waiver of admin board in subsequent separation proceedings.  United States v. Gansemer, 38 M.J. 340, (C.M.A. 1993) (upholding term requiring accused to waive separation board if punitive discharge was not adjudged; term does not violate public policy or fundamental fairness, as accused can ask for discharge in lieu of court-martial and there was no overreaching). 

8.Forfeiture of personal property used in the commission of a crime. United States v. Henthorn, 58 M.J. 556 (N-M. Ct. Crim. App. 2003). Accused convicted of receiving child pornography in violation of 18 U.S.C. § 2252A. Court holds that provision in pretrial agreement that required accused “to forfeit his personal property (laptop computer) pursuant to 18 U.S.C. §2253 did not constitute an unauthorized forfeiture or fine and was not an excessively harsh punishment.” Because the computer was used in the commission of the crime, its forfeiture was consistent with the application of the federal forfeiture statute, and was not a “punishment.” “Needless to say, if the [accused] found his agreement too onerous, he could have withdrawn from it.”

9.Waiver of accusatory phase unlawful command influence.  United States v. Weasler, 43 M.J. 15 (C.A.A.F. 1995).  Waiver of UCI was not against public policy where the alleged UCI motion originated with defense, concerned a matter not affecting the fairness of the adjudicative process, and where the waiver also originated with the defense.  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

10.Fines. United States v. Smith, 44 M.J. 720 (A. Ct. Crim. App. 1996).  Including fines as a term in pretrial agreements is a recognized “good reason” for imposing same, where agreement is freely and voluntarily assented to avoid some more dreaded lawful punishment. Accused was convicted of felony murder. Military judge imposed a fine as part of the sentence which required the accused to pay the $100,000 by the time he is considered for parole (sometime in the next century) or be confined for an additional 50 years or until he dies, whichever comes first. The court held the fine was permissible but the contingent confinement provision was not, as it circumvented Secretary of Army’s parole authority.  (The agreement here was for non-capital referral.  The issue was that the sentence itself violated public policy.)

11.Article 13 punishment. United States v. McFadyen, 51 M.J. 289 (C.A.A.F. 1999). Accused’s waiver of Article 13 issue as part of pretrial agreement does not violate public policy. For all cases in which “a military judge is faced with a pretrial agreement which contains an Article 13 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.” Here, accused agreed to plead guilty and, in exchange for a sentence limitation, to waive his right to challenge his pretrial treatment under Article 13. Accused was an airman who complained about his treatment in pretrial confinement at a Navy brig (where he was stripped of rank, prevented from contacting his attorney, and had his phone calls monitored). While announcing a prospective rule only, the court found no reason to disturb the waiver here: Accused did not contest the voluntariness of waiver, an inquiry was conducted by the military judge, the accused was allowed to raise and argue in mitigation his claims of ill-treatment at the hands of the Navy, and the military judge was able, if he wished, to consider the nature of pretrial confinement in determining the sentence.  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

12.Waive comparative sentencing information. United States v. Oaks, 2003 CCA LEXIS 301 (A.F. Ct. Crim. App. Dec. 10, 2003 ) (unpub.). Term waiving right to present comparative sentencing information in unsworn statement does not impermissibly limit right to present a full sentence case to the sentencing authority. Compare United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998) (error where judge precluded accused from presenting sentence comparison material, but where there was no agreement to waive his right in exchange for the benefits of a pretrial agreement).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

13.Enrollment in a sexual offender treatment program. United States v. Cockrell, 60 M.J. 501 (C.G. Ct. Crim. App. 2004). MJ failed to discuss with the accused a provision in the PTA requiring the accused to enroll in a sexual offender treatment program following his release from confinement and the ramifications if he failed to comply with that requirement. While the ramifications of failing to comply with the terms of the sexual offender treatment program were unclear in the PTA, and left unexplained by the MJ, requiring an accused to enroll in a sexual offender treatment program is not a per se impermissible term.

14.Agreement not to discuss alleged constitutional violation. United States v. Edwards, 58 M.J. 49 (C.A.A.F. 2003). As part of PTA, accused agreed not to discuss, in his unsworn statement, any circumstances surrounding potential constitutional violations occurring during AFOSI’s interrogation of him (interrogation after detailing of defense counsel without first notifying defense counsel). If a provision is not contrary to public policy or R.C.M. 705, accused may knowingly and voluntarily waive it. R.C.M. 705 does not prohibit this pretrial term, and the term did not deprive the accused of the right to a complete sentencing proceeding. Military judge conducted detailed inquiry of the accused to determine if he knowingly and voluntarily agreed to it, and whether he understood the implications of his waiver.  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

15.Forum selection (military judge alone). Practitioners should be aware that under the 2016 MJA, there is no longer a default panel composition.  It is unlikely that this change would impact the line of cases involving waiver of any panel right in a request for trial by judge alone.  However, the reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).  United States v. Burnell, 40 M.J. 175 (C.M.A. 1994).  Government would not agree to two-year sentencing limitation unless accused waived members. Accused’s voluntary and intelligent waiver did not violate public interest.  See also United States v. Andrews, 38 M.J. 650 (A.C.M.R. 1993). Government indicated during pre-trial negotiations that if accused elected trial with members, “then the quantum portion would be higher than if we went with military judge alone.” Court ruled, “[W]e hold that the change to R.C.M. 705 now permits the government to propose as a term of the pretrial agreement, that the [accused] elect trial by military judge alone, and the amount of the sentence limitation may depend on that election.” See also United States v. McClure, A.C.M.R. No. 9300748 (A.C.M.R. Nov. 23, 1993) (unpub.) (convening authority’s handwritten counter-offer on pretrial agreement stated: “The foregoing is accepted only if the accused elects to be tried by military judge alone.”).  But see United States v. Young, 35 M.J. 541 (A.C.M.R. 1992) (Appellate courts might invalidate a pretrial agreement if accused asserts (s)he was “coerced” into waiving trial by members.)  Ultimately, a service or command policy, such as standardized pretrial agreements, which undermines the legislative intent of Article 16 “will be closely scrutinized.” But, agreements are permissible if waivers contained in them are a “freely conceived defense product.” United States v. Zelenski, 24 M.J. 1 (C.M.A. 1987). 

16.  When applicable, a provision requiring that the sentences to confinement adjudged by the military judge for two or more charges or specifications be served concurrently or consecutively.  R.C.M. 705(c)(2)(F).

B.Prohibited Terms/Conditions

1.Terms which are not voluntarily.

2.Terms which deprive the accused of certain Constitutional protections, such as: 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.

a)Complete sentencing proceedings (request BCD).  This prohibited term is likely to be the most hotly litigated term under the 2016 MJA because of the likely tendency that direct sentence limitations will have to truncate sentencing proceedings.  See R.C.M. 705(d).  In the event the military judge has no discretion to decide upon a sentence that deviates from the one agreed upon by the convening authority and the accused, this issue is likely to come up on appeal.  Under pre-existing case law, a term cannot term the sentencing proceeding into an “empty ritual.”  United States v. Davis, 50 MJ 426 (CAAF 1999)(“A fundamental principle underlying this Court’s jurisprudence on pretrial agreements is that "the agreement cannot transform the trial into an empty ritual.")(citing United States v. Allen, 8 USCMA 504, 507 (1957).

(1)United States v. Libecap, 57 M.J. 611 (C.G. Ct. Crim. App. 2002). Accused contended that the pretrial agreement, requiring him to request a bad conduct discharge at trial, was unenforceable. The appellate court concluded that R.C.M. 705(c)(1) prohibited the provision because it deprived the accused of a complete sentencing proceeding by negating the value of putting on a defense sentencing case. Moreover, the requirement to request a bad conduct discharge improperly placed the accused in the position of either giving up a favorable pretrial agreement or forgoing a complete sentence proceeding. The provision was against public policy for similar reasons. The accused was prejudiced by the provision, even though he had not requested a bad conduct discharge at trial, because he was precluded from telling the military judge that he wanted a second chance and from arguing for a sentence that did not include a punitive discharge. Since the accused had specifically stated that the error did not affect the voluntariness of his pleas, the appellate court determined that the appropriate remedy was a rehearing on sentence.

b)Waive speedy trial. 

(1)When issue not raised by facts.  The language of RCM 705 prohibits waiver of a speedy trial.  R.C.M. 707 specifies speedy trial rights in the military.  United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999) addresses a case where the accused offered to waive a speedy trial issue in his pretrial agreement.  The accused had been in pretrial confinement for 95 days.  The accused later claimed that waiver was impermissible under R.C.M. 705.  CAAF held that under the MCM this waiver was unenforceable.  The  military judge should have declared it impermissible, upheld the remainder of the agreement, and then asked the accused if he wished to litigate the issue.  The military judge did not do that, so the case was unclear as to whether the accused would have waived the issue anyway, even without a PTA.  Nevertheless, the accused did not make a prima facie showing or colorable claim of a speedy trial violation.  Despite the 95-day delay, the accused failed to show prejudice, that he had demanded trial, or that the amount of time to investigation was unreasonable.  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

(2)When issue raised by facts.  The accused had been in pretrial confinement for 117 days at the time of arraignment.  Accused offered to waive all non-constitutional and non-jurisdictional motions. The military judge determined there was a speedy trial issue, and that the term was proposed by the government. The court held that there was a colorable speedy trial claim and that waiver was not harmless error. Finding and sentence set aside.  United States v. Benitez, 49 M.J. 539 (N.M. Ct. Crim. App. 1998).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

3.         Term involving individual military counsel.  Agreement to an increase in the confinement cap from 12 to 13 months to allow a delay so the accused could obtain individual military counsel “inferentially implicated appellant’s right to individual military counsel,” and violated public policy. Court reassessed sentence and affirmed only 11 months confinement.  United States v. Copley, No. 20011015 (A. Ct. Crim. App. Feb. 26, 2004) (unpub.).

4.         Waiver of clemency or parole. A PTA term limiting the accused’s right to clemency or parole violates the R.C.M. 705(c) right to a complete and effective exercise of post-trial and appellate rights. United States v. Tate, 64 M.J. 269 (C.A.A.F. 2007). In that case, the accused agreed to decline any clemency or parole offered to him for a period of twenty years. The MJ sentenced the accused to life without parole but the PTA limited the accused’s confinement to fifty years, which, but for his PTA term, would have made him eligible for clemency in five years and parole in ten years. Allowing such a term would improperly impede the ability of service secretaries to exercise their clemency and parole powers, “as well as ultimate control of sentence uniformity” throughout their respective service. CAAF struck the PTA’s specific term but ruled the stricken term did not impair the balance of the agreement and the plea. See also United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004) (violating public policy where PTA precluded an accused from accepting clemency and the accused’s sentence could include death and required a mandatory minimum of confinement for life).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

5.         Terms which deprive the accused of a complete sentencing proceeding. It is permissible to waive personal appearance of sentencing witnesses, so long as other methods are available for presenting that evidence to the factfinder (like telephonic testimony or stipulations of expected testimony).  A term, originating with accused, that prohibited accused from presenting testimony of witnesses located outside of Hawaii either in person, by telephone, letter, or affidavit, violated public policy because it impermissibly deprived the accused of a complete sentencing proceeding.  United States v. Sunzeri, 59 M.J. 758 (N-M. Ct. Crim. App. 2004). 

6.          The military judge of a general or special court-martial shall reject a plea agreement that (1) contains a provision that has not been accepted by both parties; (2) contains a provision that is not understood by the accused; (3) contains a provision for a sentence that is less than the mandatory minimum sentence (with exceptions);(4) is prohibited by law; or (5) is contrary to, or is inconsistent with, a regulation.  M.C.M. Art. 53a.

7.         Terms which are fundamentally unfair.

a)Terms which incentivize counterintuitive sentencing argument.  Accused pled guilty in exchange for a pretrial agreement which would suspend an adjudged bad-conduct discharge, provided confinement for more than four months was adjudged. Confinement adjudged was for less than four months, and convening authority did not suspend the discharge. Agreement found to be contrary to public policy and fundamentally unfair.  United States v. Cassity, 36 M.J. 759 (N.M.C.M.R. 1992).

b)Retirement eligibility.  A provision requiring the accused not to request transfer to the reserves if a punitive discharge was not adjudged violated public policy based on the accused’s eligibility for retirement.  United States v. Schmelzle, No. 200400007, 2004 CCA LEXIS 148 (N-M. Ct. Crim. App. July 14, 2004) (unpub)

c)Immunity/Court “tax.”  Pretrial agreement in which the quantum portion was increased if the accused raised claims of de facto immunity encumbered the accused’s due process right to challenge the jurisdiction of the court-martial. The litigation of non-frivolous claims of lack of jurisdiction and immunity are not the proper subjects for plea bargaining.  United States v. Conklan, 41 M.J. 800 (A. Ct. Crim. App. 1995).

d)Impartial tribunal.  Improper to have accused waive military judge’s disqualification in pretrial agreement after judge’s impartiality is reasonably questioned.  United States v. Keyes, 33 M.J. 567 (N.M.C.M.R. 1991).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in R.C.M. 905(e).

C.Problematic Terms/Conditions

1.Waive all waivable motions.  A “waive all waivable motions” provision raises an issue as to whether the accused knowingly waived the issue. While it is legally persmissible and may have the impact of waiving motions not specifically articulated, it may also result in a prolonged discussion between the judge, the accused, and the accused's counsel.  Under R.C.M. 910(f)(4), the military judge must ensure the accused understands the pretrial agreement. If the accused and counsel did not anticipate a motion at trial, yet purported to waive all motions, the waiver of the unanticipated motion was arguably unknowing. In Gladue, the court addressed this issue.  The accused pled guilty pursuant to a pretrial agreement agreeing to “waive any waiveable [sic] motions.” At trial, military judge asked the defense what motions were waived by this provision; defense counsel stated the only contemplated motions were for a continuance, suppression of evidence, change of venue, and entrapment.  On appeal (and for the first time), the accused argued multiplicity or, alternatively, unreasonable multiplication of charges. The CAAF found the accused waived those issues in the pretrial agreement. Implicit in the court’s reasoning was that the facts giving rise to a motion for multiplicity or unreasonable multiplication of charges were known at the time of the plea.  Even though counsel did not list those motions as being waived, the accused in fact waived the right to make that motion in the PTA, and also by not raising them at trial.  The court found that “if an accused waives a right at trial, it is “extinguished” and will not be reviewed on appeal.”  United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009). 

Despite the CAAF’s decision in Gladue, military judges, in an abundance of caution, should ask defense counsel what specific motions are being waived under a “waive all waivable motions” provision. This practice precludes challenges on appeal that an accused was unaware of other motions or (more problematic) believed he was waiving a non-waivable motion (like speedy trial).  Additionally, judges should be aware of the new waiver/forfeiture rules in R.C.M. 905(e).

Practitioners should also review United States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997), affirming 44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term in PTA which required that accused waive “all pretrial motions” was too broad, and purported to deprive accused of right to make motions that could not be bargained away); United States v. Jennings, 22 M.J. 837, 838-39 (N.M.C.M.R. 1986) (provision in pretrial agreement to “waive any pretrial motion I may be entitled to raise” is “null and void” as “contrary to public policy”); and United States v. Silva, 1997 CCA LEXIS 267 (N-M. Ct. Crim. App. 1997) (unpub.) (Term in PTA, which required accused to “waive all waiveable motions” not contrary to public policy and R.C.M. 705(c)(1)(B). Such a term does not include motions that are nonwaivable under R.C.M. 705(c)(1)(B)). 

2.Testifying without Immunity. A PTA is valid where, inter alia, the accused promised to testify without grant of immunity against any other military members and where the MJ questioned the accused and counsel extensively during providence.  United States v. Profitt, 1997 CCA LEXIS 117 (A.F. Ct. Crim. App. Apr. 4, 1997) (unpub.).  See also United States v. Rivera, 46 M.J. 52 (C.A.A.F. 1997), affirming 44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term which required accused to “testify in any trial related in my case without a grant of immunity” did not violate public policy, under facts of this case as accused had not yet been called to testify).

3.Waive any and all defenses where no defenses existed. A term which required the accused to waive his right to “any and all defenses” did not violate R.C.M. 705 or public policy. The accused was charged with attempted housebreaking, attempted larceny, violation of a lawful general regulation, and aggravated assault. Requirement to waive all defenses was not overly broad, considering that the accused failed to raise any defense during the providence inquiry or sentencing.  United States v. Forrester, 48 M.J. 1 (C.A.A.F. 1998).  The reasoning in this case may be impacted by the new waiver/forfeiture rules in RCM 905(e).

4.Vacation of suspension term. Government argued that a term in the PTA permitted the SPCMCA to execute vacation of suspension without forwarding the case to GCMCA for action. Court held that although PTA does not indicate that accused wanted to waive those rights; Congressional intent was to grant accused an important procedural due process right for vacation actions and it is doubtful whether such rights are waivable. United States v. Perlman, 44 M.J. 615 (N-M. Ct. Crim. App. 1996), 48 M.J. 353 (C.A.A.F. 1998) (sum. disp.) (affirming but expressing no opinion on whether term was lawful).  See also United States v. Smith, 46 M.J. 263 (C.A.A.F. 1997) (holding that PTA term providing for vacation proceedings and processing under Article 72 and R.C.M. 1109 in the event of future misconduct cannot be interpreted as waiver of the GCMCA’s authority to review and take action on vacation).

5.Confessional Stipulations

a)Problematic.  Accused offered a PTA in which he agreed to plead not guilty and, in exchange for a sentence limitation, to enter into a confessional stipulation and present no evidence. The stipulation admitted basically all elements of the offenses except the wrongfulness of marijuana use and the intent to defraud concerning the bad check offenses. CAAF found the provision violated the prohibition against accepting a confessional stipulation as part of a pretrial agreement promising not to raise any defense.  United States v. Davis, 50 M.J. 426 (C.A.A.F. 1999). 

b)Limitations on use.

(1)If the accused fails to satisfy the military judge's inquiry into the providency of his plea, a confessional stipulation may be used at trial with consent of the accused. Otherwise military judge would not be at liberty to consider matters presented in the unsuccessful attempt to plead guilty. United States v. Matlock, 35 M.J. 895 (A.C.M.R. 1992). Prosecution cannot receive the benefit of the stipulation without the concomitant limitations of the pretrial agreement. See United States v. Cunningham, 36 M.J. 1011 (A.C.M.R. 1993).

(2)Unless otherwise agreed to by the accused, confessional stipulation in connection with guilty pleas may not be considered by military judge as to those charges to which accused has pled not guilty (contested charges). United States v. Banks, 36 M.J. 1003 (A.C.M.R. 1993). Confessional stipulation is the equivalent of entering a guilty plea to a charged offense; accused must knowingly and voluntarily consent to any use of stipulation beyond the limited purpose of facilitating providence inquiry. United States v. Rouviere, No. 9200242 (A.C.M.R. Aug. 24, 1993) (unpub.).

(3)United States v. Craig, 48 M.J. 77 (C.A.A.F. 1998). Military judge erred by advising the accused that her confessional stipulation (which contained facts substantiating both guilty and not guilty pleas to drug offenses) waived her constitutional rights against self-incrimination, to a trial of by the facts, and to confront and cross-examine witnesses against her.

(4)United States v. Dixon, 45 M.J. 104 (C.A.A.F. 1996). Where a stipulation leaves room for the defense to reasonably contest certain elements, and the defense in fact does so, a stipulation is not confessional. Accused entered mixed pleas to stealing mail. He entered into a stipulation of fact, in conjunction with his pretrial agreement, regarding two uncontested specifications, and the Government presented evidence on the remaining two specifications. Specification 3 involved a larceny of mail matter. The stipulation established that accused removed mail matter from its lawful place and did not intend to return the parcel to the addressee. There was no requirement to do a United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977) inquiry. The stipulation was not “confessional” because it did not effectively establish an express admission that accused’s removal of mail matter was done with an intent to steal.

VII.Remedies

A.General.  The remedy for a breached PTA depends on the breach.  Depending on the issue, withdrawal, specific performance, or rescission may be available.  Additionally, an unenforceable term may be declared void.

B.Unenforceable Terms.  The usual remedy is to declare the term void and unenforceable.  Whether the remainder of the PA remains enforceable depends on the existence and language of any severance clause in the PA.  See generally United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999) (a term requiring accused to “waive the speedy trial issue” is impermissible under R.C.M. 705(c)(1)(B) and the military judge should have declared it void and unenforceable, while upholding the rest of the agreement; judge should have also asked the accused if he wanted to raise the issue).

C.Specific performance.

1.United States v. Lundy, 60 M.J. 52 (C.A.A.F. 2004). Accused entered into PTA term, whereby the convening authority agreed to defer any and all reductions and forfeitures until the sentence was approved and suspend all adjudged and waive any and all automatic reductions and forfeitures. For sexually assaulting his children, the accused (a SSG) was sentenced to a DD, confinement for 23 years, and reduction to E-1, which subjected him to automatic reduction and forfeitures.

The convening authority attempted to suspend the automatic reduction IAW the PTA to provide the accused’s family with waived forfeitures at the E-6, as opposed to the E-1, rate. The parties, however, overlooked AR 600-8-19 which precludes a CA from suspending an automatic reduction unless the convening authority also suspends any related confinement or discharge which triggered the automatic reduction. ACCA stated no remedial action was required because the accused’s family was adequately compensated with transitional compensation (TC), which ACCA concluded the accused’s family was not entitled to because they were receiving waived forfeitures, albeit at the E-1 rate.

CAAF reversed, holding if a material term of a PTA is not met by the government, three options exist: (1) the government’s specific performance of the term; (2) withdrawal by the accused from the PTA, or (3) alternative relief, if the accused consents to such relief. Additionally, CAAF held an accused’s family could receive TC while receiving either deferred or waived forfeitures if the receipt of TC was based on a discharge and if the receipt of TC was based only on the accused receiving forfeitures, the family could receive TC if not actively receiving the deferred or waived forfeitures. On remand, ACCA, ruled specific performance was “more appropriate because the [accused] has not indicated he would consent to any particular alternative relief.” In January 2005, the Secretary of the Army (SECARMY) granted an exception to AR 600-8-19 allowing the suspension of the rank reduction and the provision of forfeitures at the E6 rate without requiring the CA to suspend the discharge or confinement triggering the automatic reduction. SECARMY did not approve interest on the E6 forfeiture amount and ACCA ruled it did not have the authority to provide the approximately $3,000 in interest on the original amount owed to the accused and remanded the case to the SA to approve the interest payment or to otherwise return the case to ACCA to set aside the findings and sentence.

In Fall 2005, SECARMY made the interest payment. In Summer 2006, CAAF issued another Lundy opinion, holding that the accused bore the burden to show that the timing of the payment was material to his decision to plead guilty.

2.United States v. Perron, 58 M.J. 78 (C.A.A.F. 2003). In Perron, the accused agreed to plead guilty in exchange for sentence limitations that included pay and allowances going to his family. However, prior to trial the accused’s term of service expired and once convicted he entered into a no-pay status. As a matter of clemency the accused’s counsel asked the convening authority to release Perron from confinement “to gain immediate employment . . . to allow for the financial relief his family desperately needs.” The convening authority did not grant the request, opting instead to grant alternative relief. A tortured set of appeals and remands followed concerning the adequacy of the alternative relief. The issue that finally reached CAAF was whether convening authorities and appellate courts may “fashion an alternative remedy of [their] own choosing” against the accused’s wishes. CAAF said no: “It is fundamental to a knowing and intelligent plea that where an accused pleads guilty in reliance on the promises made by Government in a pretrial agreement, the voluntariness of that plea depends on the fulfillment of those promises by the Government . . . Imposing alternative relief on an unwilling [accused] to rectify a mutual misunderstanding of a material term in a pretrial agreement violates the [accused]’s Fifth Amendment Right to due process.”

D.Withdrawal.  United States v. Sheffield, 60 M.J. 591 (A.F. Ct. Crim. App. 2004). Accused pled guilty to numerous military offenses and was sentenced to a BCD, four months confinement, and reduction to E-1. The accused’s PTA contained a term that the CA would “waive automatic forfeitures in the amount of five hundred dollars, which sum was to be paid to the guardian appointed by the accused to care for his minor dependents.” The SJAR failed to mention this term and the CA did not pay the five hundred dollars to the accused’s dependents. On appeal, the accused requested the court to disapprove his adjudged BCD, or in the alternative, to allow him to withdraw from the plea. The government contended specific performance was appropriate. AFCCA held the government could not specifically perform because the accused could not receive the benefit of his PTA bargain (for his dependents to receive five hundred dollars per month during his incarceration). Likewise, the court failed to approve the accused’s request to disapprove his BCD because the government did not agree to the alternative relief. The original PTA was nullified and findings and sentence set aside.

VIII.POST-TRIAL ISSUES AND EFFECTS

A.Article 53a of the 2016 MJA does not contemplate post-trial agreements.  However, because convening authorities still have clemency powers they can exercise apart from an agreement under Article 53a, it is possible that post-trial agreements could continue to arise under the limited powers still articulated in Article 60.  The following paragraphs relate explicitly to the legacy system.

B.[Legacy] Approved sentence not explicitly conforming to the terms of the pre-trial agreement.  Generally, convening authority action not conforming explicitly to the terms of the PTA may be acceptable if the approved sentence is of lesser severity than the one agreed to in the PTA. 

1.Suspended sentences.  United States v. Barraza, 44 M.J. 622 (N.M. Ct. Crim. App. 1996) (extending suspension of confinement from 12 months (agreed) to 36 months (approved) did not increase severity of sentence where the CA also decreased unsuspended confinement from 46 months (agreed) to 14 months (approved)); United States v. Hayes, No. 9002521 (A.C.M.R. Aug. 29, 1991) (unpub).  In pretrial agreement, convening authority would suspend for 12 months any confinement over 20 months. The adjudged sentence was confinement for 5 years, total forfeiture of all pay and allowances, reduction to E-1, and dishonorable discharge. At action, convening authority approved confinement for 36 months (confinement over 18 months suspended for 18 months), TF, reduction to E-1, and dishonorable discharge. HELD: Reducing confinement by two months and increasing the period of suspension by six months is more favorable to the accused than the pretrial agreement, so action was proper.

2.Forfeitures.  United States v. Sparks, 15 M.J. 895 (A.C.M.R. 1983) (approving adjudged sentence which included an additional two months forfeiture of pay was less severe than the PTA where the confinement adjudged was also two months less than the PTA)

3.DischargesUnited States v. Barratt, 42 M.J. 734 (A. Ct. Crim. App. 1995). No PTA. Adjudged sentence was 16 months confinement, total forfeiture of all pay and allowances, and reduction to E-1. Accused requested convening authority substitute bad-conduct discharge for reduction in confinement to 6 months. At action, convening authority approved new sentence of bad-conduct discharge and 6 months confinement. HELD: CA may not approve a punitive discharge when punitive discharge not adjudged at trial. Punitive discharge, as a matter of law, is not a LIO punishment to confinement. See 10 U.S.C § 3811.

C.[Legacy]  Post-Trial AgreementIt is permissible for the accused and convening authority to enter into a post-trial agreement, even though this eliminates any judicial scrutiny of the agreement, as would happen at trial.

1.Renegotiation of Pre Trial Agreement.  United States v. Pilkington, 51 M.J. 415 (C.A.A.F. 1999). An accused has the right to enter into an enforceable post-trial agreement with the convening authority when the parties decide that such an agreement is mutually beneficial. Accused pled guilty to conspiracy to maltreat subordinates, maltreatment, false official statements, and assault. In a pretrial agreement, the convening authority agreed to suspend the bad-conduct discharge for 12 months. Accused and the convening authority agreed, in a post-trial agreement, that the latter could approve the punitive discharge as long as he “limited confinement to 90 days.” On appeal, the accused argued that the post-trial agreement should be invalidated because it prevented judicial scrutiny of the terms and conditions. The court refused to invalidate the agreement, noting that the accused proposed the agreement after full consultation with counsel, stated that he voluntarily entered the agreement, and the post-trial agreement was directly related to the convening authority’s obligations under the sentencing provisions of the pretrial agreement. Additionally, the court held that while the trial court did not review the post-trial agreement, the intermediate appellate court always have the opportunity to review such agreements.
Post-Trial Agreement.  United States v. Dawson, 51 M.J. 411 (C.A.A.F. 1999). Accused and CA agreed to a PTA in which the first 30 days of any adjudged punishment would be converted into 15 days’ restriction. Confinement in excess of 30 days would be suspended. The accused received 100 days confinement and a BCD. She was placed on restriction, missed a muster, and was notified of pending vacation proceedings. She went AWOL, but was later apprehended and placed in confinement. Accused entered a new agreement with the CA where she agreed to waive the right to appear at a hearing to vacate the suspension of her sentence (the SJA had opined the one held in her absence was illegal), to waive any claims she might have concerning post-apprehension confinement, and to release the CA from the prior agreement. In return, the CA would withdraw the new absence charge, and provide day-for-day credit toward her time served in “pretrial confinement” (on the new charge). The SJA advised that, based on the errors that occurred in the first trial, he should disapprove all confinement. The CA approved the BCD and disapproved the confinement. CAAF held that this was a valid post-trial agreement that did not involve post-trial renegotiation of an approved PTA. The agreement related to proceedings collateral to the original trial, and did not require the approval of a military judge.

D. Court-martial convening authorities will consider whether the offender has made restitution to the victim when taking post-trial action.  AR 27-10, para. 17–6.c (Interim, 1 Jan 19).

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