Overview of post-trial agreements and negotiations:
United States v. Griffaw
, 46 M.J. 791 (A.F. Ct. Crim.App. 1997). A sentence cap in a court-martial pretrial agreement is not a grant of clemency or true plea bargain identical to civilian practice. The cap is a ceiling (or “more like a flood insurance policy on a house”) on what would otherwise be the maximum punishment provided by law. SJA, therefore, erroneously implied that convening authority fulfilled clemency obligation by reducing the adjudged confinement from 18 to 12 months to comply with terms of pretrial agreement.
United States v. Lundy,
60 M.J. 52 (C.A.A.F.2004). Accused entered into PTA term, whereby the CA 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. a. The CA 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 CA 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. b. 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. c. In Fall 2005, SECARMY made the interest payment. In Summer 2006, CAAF issued another
opinion, holding that the accused bore the burden to show that the timing of the payment was material to his decision to plead guilty. d.
is a good cautionary tale. Government counsel should ensure pretrial agreements are simple.
United States v. Perron
, 58 M.J. 781 (C.A.A.F. 2003). In
, 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 where the adequacy of the alternative relief granted was at issue followed. 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.”
United Statesv. 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 dependants.” 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.