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Law on Conditional Guilty Pleas in a Court Martial RCM 910(a)(2)

Overview of Rule for Courts-Martial (RCM) 910(a)(2)

With the approval of the military judge and the consent of the Government, an accused may enter a conditional plea of guilty, reserving the right, on further review or appeal, to review of the adverse determination of any specified pretrial motion. If the accused prevails on further review or appeal, the accused shall be allowed to withdraw the plea of guilty. The Secretary concerned may prescribe who may consent for Government; unless otherwise prescribed by the Secretary concerned, the trial counsel may consent on behalf of the Government.

Issue Should be Case Dispositive

The motion or issue in question should be case dispositive. (Analysis R.C.M. 910). But note, only the Air Force requires that the issue be case dispositive. (See AFI 51-201, para 8.3). Where a conditional guilty plea is NOT case dispositive as to either the issue preserved for appeal or to all of the charges in a case, the military judge should address as part of the providence inquiry the understanding that the accused and the parties as to the result of the issue prevailing on appeal. Additionally, even if the conditional plea issue is not case dispositive, it might be best to narrowly tailor the conditional plea.

United States v. Mapes, 59 M.J. 60 (C.A.A.F. 2003). Accused convicted of involuntary manslaughter and various other offenses arising from his injection of a fellow soldier with a fatal dose of heroin. Accused entered into a pretrial agreement that permitted him to enter a conditional plea pursuant to RCM 910(a)(2) that preserved his “right to appeal all adverse determinations resulting from pretrial motions.” At trial, accused moved to dismiss all charges due to improper

use of immunized testimony and evidence derived from that immunized testimony in violation of Kastigar v. United States , 406 U.S. 441 (1972).

Although the CAAF dismissed most of the charges and specifications due to the Kastigar violation, accused was permitted to withdraw his plea to those remaining offenses which were not directly tainted by that violation, as the violation caused or played a substantial role in the GCM referral of those offenses. In so doing, CAAF noted that although military practice, unlike its federal civilian counterpart, does not limit conditional pleas to issues that are dispositive, there should be “cautious use of the conditional plea when the decision on appeal will not dispose of the case.” See also United States v. Proctor , 58 M.J. 792 (A.F. Ct. Crim. App. 2003)

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Coordination with OTJAG

In the Army, SJAs should consult with the Criminal Lawfare Division, OTJAG, prior to the government’s consent to an accused entering a conditional plea of guilty.  AR 27-10, para. 5-26b Because conditional guilty pleas subject the government to substantial risks of appellate reversal and the expense of retrial, SJAs should consult with the Chief, Criminal Law Division, ATTN: DAJA–CL, Office of The Judge Advocate General, HQDA, prior to the government’s consent regarding an accused entering a conditional guilty plea at court-martial.

Once this coordination is complete, the Trial Counsel may consent, on behalf of the government, to the entering of the conditional guilty plea by the accused in accordance with R.C.M. 910(a)(2).”). See generally RCM 910(a)(2) The Secretary concerned may prescribe who may consent for the Government.

Military Judge and Government Counsel Must Consent

RCM 910 Analysis at A21-60 – There is no right to enter a conditional guilty plea. The military judge and the government each have complete discretion whether to permit or consent to a conditional guilty plea.

Issue Must be Raised at Trial

United States v. Forbes , 19 M.J. 953 (A.F.C.M.R. 1985) The accused’s failure to make motion to suppress drug test waived issue despite conditional plea.

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