Pretrial Agreements and Negotiations
Overview of pretrial agreements and negotiations
- Agreement between convening authority and accused
- Nature of Agreement
- Permissible Terms or Conditions
- Post-Trial Re-Negotiation of PreTrial Agreement
- Problematic terms or conditions
- Prohibited Terms or Conditions
- Remedy for unenforceable terms
- Stipulations of fact (Pretrial Agreement Cases)
- Typical and Simplest Agreement
- Unitary Nature of Pretrial Agreement
- Withdrawal from the Pretrial Agreement
Agreement between convening authority and accused
Information on the agreement between convening authority and accused.
Only the convening authority can bind the government in the United States v. Manley, 25 MJ 346 (CMA 1987). Thus, once the accused completed the performance of a pretrial agreement, as modified by parties at trial, the convening authority was not authorized to withdraw from the agreement unilaterally.
Inquiry into Quantum and Resolution of Ambiguous Terms
Discussion of the inquiry into quantum and resolution of ambiguous terms regarding pretrial agreements and negotiations:
In the United States v. Grisham, 66 MJ 501 (A. Ct. Crim. App. 2008). ACCA provided an excellent summary of the contract principles used to interpret pretrial agreements. In Grisham, the approved pretrial agreement included this provision: “The government agrees not to prefer any additional charges or specifications against the accused of any potential misconduct of which the government is aware at the time this offer is signed.” (emphasis supplied by the court).
The government became aware of misconduct in the nine days between the date the accused signed the pre-trial agreement and the date the convening authority approved it: the accused and military defense lawyers signed the pretrial deal on Dec. 1, 2004; the accused (who was in pretrial confinement) provided a urine sample as part of a prison-wide urinalysis; on Dec. 6, 2004, the Army’s laboratory found amphetamines in the accused’s sample; on Dec. 10, 2004, after conducting several standard confirmatory tests, the laboratory certified the positive result; also on Dec. 10, 2004, the convening authority approved the pretrial agreement. The accused pled guilty under his pretrial agreement in Grisham I.
The government preferred additional charges for a second court-martial. The ACCA held the pretrial deal referred to the date the accused signed the pretrial agreement (as opposed to the date the convening authority signed it) and upheld the conviction for wrongful use.
A pretrial agreement is a contract created through the bargaining process between the accused and the convening authority. It is well established in federal and military courts that pretrial agreements will be interpreted using contract law principles.
The military judge must “resolve any ambiguities, inconsistencies, or misunderstandings between the accused and the government during the providence inquiry.” The court emphasized that if there is ambiguity, “it is the military judge’s responsibility to clarify the terms of the agreement on the record, and ensure that all parties, especially the accused, understand the terms and their implications
Nature of agreement
As part of the nature of the agreement, a pretrial agreement may include: 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 this rule; and
- A promise by the convening authority to do one or more of the following:
- Refer the charges to a specific type of court-martial;
- Refer a capital offense as noncapital;
- Withdraw one or more charges or specifications from the court-martial;
- Have the trial military defense lawyers presented no evidence as to one or more specifications or portions thereof; and
- Take specified action on the sentence adjudged by the court-martial.
An accused may:
“Plead guilty to, or 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 which are not prohibited under this rule . . .”
The convening authority may promise to do one or more of the following:
a. Refer the case to a certain level of a court-martial;
b. Refer a capital offense as noncapital;
c. Withdraw one or more charges or specifications from the court-martial;
d. Have the trial military defense lawyers presented no evidence as to one or more specifications or portions thereof; and
e. Take specified action on the sentence adjudged by the court-martial. RCM 705(d).RCM 705. pre-trial agreements . . . . (d)
Permissible Terms or Conditions
Overview of permissible terms or conditions of pretrial agreements and negotiations:
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.
The accused agreed in his pretrial agreement 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, the defense argued that the term violated public policy, requiring the nullification of the accused’s pretrial agreement under RCM 705(c)(1)(B). However, based on the accused’s case, the court held the provision did not violate public policy.
Accused may waive Article 32 and the right to trial by a court-martial composed of members or the right to request a trial by military judge alone, or the opportunity to obtain the personal appearance of witnesses at sentencing proceedings.
Including fines as a term in pretrial agreements is a recognized “good reason” for imposing the same, where agreement is freely and voluntarily assented to avoid some more dreaded lawful punishment. For example, the accused was convicted of felony murder. The 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 come first. The court held the fine was permissible, but the contingent confinement provision was not, as it circumvented the Secretary of Army’s parole authority.
Accused’s waiver of Article 13 issue as part of pretrial agreement does not violate public policy. Here, the accused agreed to plead guilty and, in exchange for a sentence limitation, 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:
- The accused did not contest the voluntariness of waiver.
- The military judge conducted an inquiry.
- The accused was allowed to raise and argue in mitigation of his claims of ill-treatment at the hands of the Navy.
- The military judge was able, if he wished, to consider the nature of pretrial confinement in determining the sentence.
Term waiving the right to present comparative sentencing information in an unsworn statement does not violate public policy. The term does not impermissibly limit the right to present a full-sentence case to the sentencing authority. The court finds in the case of the United States v. Grill,48 MJ 131 (CAAF 1998), inapplicable, as presenting sentence comparison material was not permitted by a military judge; in contrast, the accused here agreed to waive his right under Grillin exchange for the benefits of a pretrial agreement.
In the case of the United States v. Cockrell, the military judge failed to discuss a provision in the pretrial agreement 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 pretrial agreement and left unexplained by the MJ, the court does not state that requiring an accused to enroll in a sexual offender treatment program is a per se impermissible term.
In the case of the United States v. Edwards, 58 MJ 49 (CAAF 2003). As part of the pretrial agreement, the 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 military defense lawyers without first notifying military defense lawyers).
If a provision is not contrary to public policy or RCM 705, the accused may knowingly and voluntarily waive it. RCM 705 does not prohibit this pretrial term and specifically does not deprive the accused of the right to a complete sentencing proceeding. The military judge conducted a detailed inquiry of the accused to determine he knowingly and voluntarily agreed to it and whether he understood the implications of his waiver.
Overview of post-trial agreements and negotiations:
In the United States v. Griffaw, 46 MJ 791 (AF Ct. Crim. App. 1997). Thus, a sentence cap in a pretrial court-martial agreement is not a grant of clemency or true plea bargain identical to civilian practice. Instead, the cap is a ceiling (or “more like a flood insurance policy on the house”) on what would otherwise be the maximum punishment provided by law. SJA, therefore, erroneously implied that the convening authority fulfilled clemency obligation by reducing the adjudged confinement from 18 to 12 months to comply with terms of the pretrial agreement.
CAAF reversed, holding if the government does not meet a material term of a pretrial agreement, three options exist:
1. The government’s specific performance of the term
2. Withdrawal by the accused from the pretrial agreement
3. Alternative relief, if the accused consents to such relief
Post-Trial Re-Negotiation of Pre-trial Agreement
Overview of post-trial re-negotiation of pre-trial agreement;
In the case of the United States v. Pilkington, 51 MJ 415 (CAAF 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.
In a post-trial agreement, the accused and the convening authority agreed 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 military defense lawyers, stated that he voluntarily entered the agreement.
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 had the opportunity to review such agreements.
Problematic terms or conditions
Overview of problematic terms or conditions in pretrial agreements and negotiations:
A “waive all waivable motions” provision can be problematic. Under RCM 910(f)(4), the military judge must ensure the accused understands the pretrial agreement. If the accused and military defense lawyers did not anticipate a motion at trial yet purported to waive all motions, the waiver of the unanticipated motion was arguably unknowing. In an abundance of caution, military judges should ask military defense lawyers 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).
Negotiation – pretrial agreement negotiations may be initiated by the accused, military defense lawyers, trial military defense lawyers, the staff judge advocate, convening authority, or their duly authorized representatives. The defense or the government may propose any term or condition not prohibited by law or public policy. Government representatives shall negotiate with military defense lawyers unless the accused has waived the right to military defense lawyers.
Formal submission – After negotiation, if any, under subsection (d)(1) of this rule, if the accused elects to propose a pretrial agreement, the defense shall submit a written offer. All terms, conditions, and promises between the parties shall be written. The proposed agreement shall be signed by the accused and military defense lawyers, 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.
Acceptance of the pretrial agreement – The 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 of 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 a person, such as the staff judge advocate or trial military defense lawyers. They have been authorized by the convening authority to sign.
Either side may propose any term or condition not prohibited by law or public policy. Must be in writing, encompassing all terms, and signed by accused and military defense lawyers. It is within the sole discretion of convening authority; it must be signed by CA or person authorized by CA to do so.
Prohibited terms or conditions
Overview of prohibited terms or conditions in pretrial agreements and negotiations:
Not voluntary – A term or condition in a pretrial agreement shall not be enforced if the accused did not freely and voluntarily agree to it.
Deprivation of certain rights: A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of the right to military defense lawyers; 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; the complete and effective exercise of post-trial and appellate rights.
A term or condition in a pretrial agreement shall not be enforced if the accused did not freely and voluntarily agree to it.
A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of the right to military defense lawyers; 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; the complete and effective exercise of post-trial and appellate rights.
Remedy for unenforceable terms
Information on the remedy for unenforceable terms in pretrial agreements and negotiations.
Pre-trial agreements in court-martial guilty plea cases
In the United States v. Harrod, 20 MJ 777 (ACMR 1985), the court held that the government could require the accused to agree to both truth and admissibility of matters contained in the stipulation fact. Thus, the stipulation should be unequivocal that military defense lawyers and the accused agree not only to the truth of the matters stipulated but that such matters are admissible in evidence against the accused.
In the case of the United States v. Vargas, 29 MJ 968 (ACMR 1990), the military defense lawyers objected at trial to the inclusion of the uncharged misconduct. They indicated that the accused only agreed to the stipulation out of fear of losing the deal. The military judge allowed the accused to withdraw, but the accused elected to adhere to the stipulation; no overreaching by the government.
Use of confessional stipulation after “busted” providence inquiry is permissible with the accused’s consent.
Otherwise, military judges are not at liberty to consider matters presented in the unsuccessful attempt to plead guilty. In the case of the United States v. Matlock, 35 MJ 895 (ACMR 1992). The prosecution cannot receive the benefit of the stipulation without the attendant limitations of the pretrial agreement.
Stipulations in mixed plea cases.
Unless otherwise agreed to by the accused, confessional stipulation in connection with guilty pleas may not be considered by vas to those charges to which the accused has pled not guilty.
A confessional stipulation is an equivalent of entering a guilty plea to a charged offense; the accused must knowingly and voluntarily consent to any use of stipulation beyond the limited purpose of facilitating providence inquiry.
Typical and Simplest Agreement
Discussion of typical and simplest agreement:
- The accused promises to plead guilty; the convening authority agrees when the case reaches him for review, he or she will limit the sentence to that specified in the agreement.
- Guilty plea entered.
- Military judge examines agreement, ensures accused understands.
Unitary Nature of pre-trial Agreement
In the absence of evidence to the contrary, operation of sentence appendix to a pretrial agreement on the sentence of court not to be treated as divisible elements.
In the United States v. Barraza, 44 MJ 622 (NM Ct. Crim. App. 1996), the accused pled to sodomy and indecent acts in exchange for a pretrial agreement which contained a term that all adjudged confinement above 46 months was to be suspended for 12 months from the date of convening authority’s action. Accused was sentenced to 10 years, total forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge. Military defense lawyer requested that the convening authority reduce confinement to aid the recovery process of the accused’s family.
Overview of the unitary nature of the pretrial agreement:
The convening authority approved the sentence and modified the punishment by suspending all confinement over 14 months and six days for 36 months. The action was lawful under the pretrial agreement because confinement was reduced by 32 months and was 22 months less than the accused requested in his clemency petition, even though there was a two-year suspension increase. Thus, the reduced confinement and increased suspension periods, taken together, did not exceed the confinement period authorized by the pretrial agreement.
In the pretrial authority agreed to approve no sentence over confinement for four months and a bad-conduct discharge. The adjudged sentence was confinement for reduction to E-1 and a bad-conduct discharge. Convening authority can approve sentence as adjudged, as overall severity not increased by extra two months forfeitures.
In pretrial agreement, the convening authority would suspend for 12 months any confinement over 20 months. The adjudged sentence was confinement for five years, total forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge. At the action, the convening authority approved confinement for 36 months (confinement over 18 months suspended for 18 months), TF, reduction to E-1, and a dishonorable discharge. HELD: Reducing confinement by two months and increasing the suspension period by six months is more favorable to the accused than the pretrial agreement, so action was proper.
In the United States v. Barratt, 42 MJ 734 (A. Ct. Crim. App. 1995). No pretrial agreement. The 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 the reduction in confinement to 6 months; at action, convening authority approved new sentence of bad-conduct discharge and six months confinement.
Closing Arguments Examples: Kick-Ass Closing Arguments Part 1: Closing Argument Template
Overview of withdrawal from the pretrial agreement:
Under RCM 705(d)(5)(a), “The accused may withdraw from a pretrial agreement at any time; however, the accused may withdraw a plea of guilty or a confessional stipulation entered under a pretrial agreement only as provided in RCM 910(h) or 811(d), respectively.”
Withdrawal from the pre-trial Agreement
In the case of the United States v. Bray, 49 MJ 300 (CAAF 1998). A convening authority may increase the sentence cap of a pretrial agreement when an accused withdraws a guilty plea after completing 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, communicate a threat, and drive drunk. A defense witness testified that the accused could have committed the offenses after being exposed to insecticide poisoning during extenuation and mitigation.
Accused withdrew his guilty plea and the pretrial agreement, limiting confinement to 20 years to pursue the “bug spray” defense. After changing his mind, the accused obtained a new pretrial agreement—the sentence cap under the new pretrial agreement limited confinement to 30 years.
Neither case law nor RCM 705 prohibits 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 military defense lawyers. The consequences of withdrawal were addressed in the original agreement, explained on the record, and the accused failed to object at trial.
Under RCM 705(d)(5)(b), the convening authority may 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, a plea of guilty entered under the agreement is held improvident on appellate review.
Once the accused begins performance, the convening authority has a limited opportunity to withdraw from the pretrial agreement.