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.
United States v. Bertelson, 3 M.J. 314 (C.M.A. 1977).

  • 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 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.
  • 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 indigence. 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 indigence to negate operation of PTA term requiring full restitution. CA properly vacated suspension under PT

a. See United 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).

b.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 suspension period for the period of confinement and one year from date of release does not violate public policy. RCM 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.”.

a.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 provision does not violate public policy” at least as applied in this case 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 allowed the convening authority to be released from his obligations under 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 RCM 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.

b.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 RCM 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.

  • 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 RCM 705(c)(1)(B). N- MCCA, noting the issue as one of first impression, held that an unreasonable multiplication of charges motion is not of a constitutional dimension and is not specifically prohibited under RCM 705 (c)(1)(B). Based on the facts of the accused’s case, the court held the provision did not violate public policy.
  • Accused maywaive 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.
    United States v. Gansemer, 38 M.J. 340, (C.M.A. 1993) (upholding term requiring accused 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).
  • 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.”
  • United States v. Weasler , 43 M.J. 15 (C.A.A.F.1995). While it is against public policy to require an accused to withdraw an issue of unlawful command influence in order to obtain a pretrial agreement, accused may initiate a waiver of unlawful command influence in order to secure a favorable pretrial agreement.But see Judge Wiss’ concurrence, which warns “that this Court will witness the day when it regrets the message that the majority opinion implicitly sends to commanders.”
  • 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 come first. The court held the fine was permissible but the contingent confinement provision was not, as it circumvented Secretary of Army’s parole authority.
  • 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.
  • 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 violate public policy. Term does not impermissibly limit right to present a full sentence case to the sentencing authority. Court finds United States v. Grill, 48 M.J. 131 (C.A.A.F. 1998), inapplicable, as presenting sentence comparison material was not permitted by military judge; in contrast, accused here agreed to waive his right under
    Grill in exchange for the benefits of a pretrial agreement.
  • 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, the court does not state that requiring an accused to enroll in a sexual offender treatment program is a per se impermissible term.
  • 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 RCM 705, 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. Military judge conducted detailed inquiry of the accused to determine he knowingly and voluntarily agreed to it, and whether he understood the implications of his waiver.

a. 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. COMA rules that with accused’s voluntary and intelligent waiver, PTA was not violative of public interest. Even if government had declined
any PTA unless accused waived members, the “government would not be depriving [accused] of anything he was entitled to.”

b.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 RCM 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.”). c. Appellate courts might invalidate a pretrial agreement if accused asserts (s)he was “coerced” into waiving trial by members.United States v. Young, 35 M.J. 541 (A.C.M.R. 1992). d. A service or command policy, such as standardized pretrial agreements, which undermines the legislative intent of Article 16 “will be closely scrutinized.” However, agreements are permissible if waiver is “freely conceived defense product.”United States v. Zelenski, 24 M.J. 1 (C.M.A. 1987).RCM 705. Pretrial agreements. . . . . Terms and conditions

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