United States v. Davis

50 M.J. 426, 1999 CAAF LEXIS 1024

• Court: Court of Appeals for the Armed Forces
• Decided: June 24, 1999
• Docket: 97-0790/MC
• Status: Published

Opinions

Judge GIERKE

delivered the opinion of the Court.

A military judge sitting as a general court-martial convicted appellant, contrary to his pleas, of two unauthorized absences, wrongful possession of drug paraphernalia contrary to a general regulation, wrongful use of marijuana, wrongful use of cocaine (2 specifications), and making and uttering 37 bad checks, in violation of Articles 86, 92, 112a, and 123a, Uniform Code of Military Justice, 10 USC §§ 886, 892, 912a, and 923a, respectively. The adjudged and approved sentence provides for a bad-conduct discharge, confinement for one year, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence. 46 MJ 551 (1997).

This Court granted review of the following issue:

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED THAT THE MILITARY JUDGE HAD NOT ERRED IN ACCEPTING APPELLANT’S PRETRIAL AGREEMENT WHERE THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED AND UNENFORCEABLE PROVISION TO “CALL NO WITNESSES AND PRESENT NO EVIDENCE ON MY BEHALF DURING THE CASE ON THE MERITS,” THEREBY VIOLATING RULE FOR COURTS-MARTIAL 705(c)(1)(B).

For the reasons set out below, we affirm.

Factual Background

Before trial, appellant negotiated a pretrial agreement with the convening authority that obligated appellant to request trial by military judge alone, enter into a confessional stipulation, “call no witnesses and present no evidence on my behalf during the ease on the merits[,]” and “complete an in-patient drug rehabilitation program ... at the earliest time practicable.” The convening authority agreed to suspend all confinement in excess of 12 months for 12 months from the date of his action. The agreement permitted all punishments to be approved as adjudged.

After appellant entered pleas of not guilty, both sides waived opening statements. The military judge announced that he had received a copy of the proposed stipulation of fact, observed that it appeared to be a confessional stipulation, and announced his intention to conduct the inquiry required by United States v. Bertelson, 3 MJ 314 (CMA 1977).

The military judge then asked appellant if he signed the stipulation, discussed it with his defense counsel, voluntarily entered into the stipulation, believed everything recited in the stipulation was true, and wished to admit that it was true. Appellant responded in the affirmative to each inquiry. The military judge (MJ) explained the effect of a confessional stipulation as follows: This stipulation amounts to a confession of the elements of all of the offenses to which you pled not guilty. There is I believe only a couple of exceptions. It seems to me that the stipulation does not include anything about what the SECNAV [Secretary of the Navy] Instruction prohibits, that is, the Article 92 offense; but I would presume that that wouldn’t take much effort by the Government to introduce evidence of the copy of that instruction and it does not admit the wrongfulness of the use of cocaine and marijuana; but again, that can be presumed by the stipulation that you have entered into and it does not admit the intent to defraud which is a part of the Article 123a, bad-checks offense. Nonetheless, that can also be presumed simply by the facts that you’ve entered into it. Do you understand that?

[Accused] (ACC): Yes, sir.

MJ: So in other words, based just on the stipulation and perhaps the introduction of a copy of the SECNAV Instruction as to one offense, the Government [sic] could find you guilty of all the offenses based only on the stipulation of fact. Do you understand that?

ACC: Yes, sir.

The military judge then advised appellant of the elements of each offense charged and asked if he realized that the confessional stipulation “practically admits” each element of each offense charged. In each case, appellant responded, 'Wes, sir.” The military judge then had the following dialogue with appellant:

MJ: You have pleaded not guilty to all offenses. By pleading not guilty, you have placed the burden on the prosecution to prove its case against you, if it can, by legal and competent evidence beyond a reasonable doubt. By stipulation to all of the elements of the offenses, you relieve the prosecution of its burden of proving these elements by legal and competent evidence. If you do not agree to this stipulation, then the stipulation could not be used and the prosecution would have to prove these elements if it could. Do you understand that?

ACC: Yes, sir.

MJ: Is everything in the stipulation true?

ACC: Yes, sir.

MJ: How do you know that it’s true?

ACC: I read it myself, sir, and I agree with what is stipulated in the statement.

MJ: Most of the facts were personally known to you?

ACC: Yes, sir.

MJ: And perhaps [as to] some of the others, that came about by reviewing the evidence with your attorney?

ACC: Yes, sir, and discussion with my attorney.

MJ: And you’re absolutely convinced that there is a factual basis for all the stipulated matters?

ACC: Yes, sir.

MJ: Has anyone forced or threatened you to enter into the stipulation?

ACC: In no way, sir.

MJ: Has anyone made any promises or agreements with you in exchange for your entering into this stipulation other than the pretrial agreement itself?

ACC: No, sir.

Thereafter, the military judge explained each term of the pretrial agreement, ensured that appellant was satisfied with the advice of his defense counsel and that appellant understood each term, agreed with the military judge’s interpretation of each term, and was entering the pretrial agreement voluntarily.

With the concurrence of trial counsel and defense counsel, the military judge advised appellant that the maximum authorized punishment for the offenses was a dishonorable discharge, confinement for 19 years and 7 months, total forfeitures, a fine, and reduction to pay grade E-l, “as well as other lesser penalties.” The military judge asked appellant, “Do you understand that since this stipulation of fact practically admits [sic] to a plea of guilty, you could lawfully be sentenced to this maximum punishment?” Appellant responded, ‘Tes, sir.”

The military judge then accepted the confessional stipulation in evidence and ruled that “the pretrial agreement is in accordance with appellate case law” and “not contrary to public policy or my own notions of fairness.”

After presenting evidence of the SECNAV Instruction allegedly violated, the prosecution rested. The military judge then conducted the following inquiry:

MJ: Sergeant Davis, if it weren’t for the agreement which you yourself and your counsel proposed, you would have the absolute right to present evidence, to present witnesses and to testify under oath as to these matters. Do you understand that?

ACC: Yes, sir.

MJ: Do you specifically waive all of those?

ACC: Yes, sir.

Following this inquiry, defense counsel made the following closing argument:

Sir, we would simply address the issue of intent to defraud with respect to the charge under Article 123a. We would submit that while the Government has presented facts which would permit the military judge to make an inference as to intent to defraud, we would argue that those facts in combination with the charge regarding cocaine use raised enough doubt as to amount to reasonable doubt in this Court’s mind as to intent to defraud. We would ask the judge not to make the inference of that intent and render a finding of not guilty. Thank you.

Immediately after defense counsel’s argument, the military judge found appellant guilty of all Charges and specifications.

Discussion

Appellant asserts that the “pretrial agreement turned his ... court-martial into an empty ritual”; deprived him of due process in violation of RCM 705(c)(1)(B), Manual for Courts-Martial, United States (1995 ed.)¹; circumvented Article 45(a), UCMJ, 10 USC § 845(a), RCM 910(c), and United States v. Care, 18 USCMA 535, 40 CMR 247 (1969); and compromised the integrity of the court-martial. The Government argues that RCM 705(c)(1)(B) specifically contemplates pretrial agreements providing for confessional stipulations instead of guilty pleas and that the integrity of the court-martial was not compromised in this case. The Government points out that the extensive inquiry by the military judge ensured that there was no government overreaching and that appellant freely and voluntarily agreed to all the terms of the pretrial agreement.

A fundamental principle underlying this Court’s jurisprudence on pretrial agreements is that “the agreement cannot transform the trial into an empty ritual.” United States v. Allen, 8 USCMA 504, 507, 25 CMR 8, 11 (1957). This principle and numerous court decisions applying it have been incorporated in RCM 705(c)(1)(B), which provides as follows:

A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: 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; the complete and effective exercise of post-trial and appellate rights.

See Drafters’ Analysis of RCM 705(c)(1)(B), Manual, supra at A21-38. RCM 705(c)(2)(A) specifically authorizes the pretrial agreement to contain “[a] promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or as to which a confessional stipulation will be entered.” (Emphasis added.)

When an accused pleads guilty, RCM 910(c) requires the military judge to “address the accused personally and inform the accused of, and determine that the accused understands,” a number of consequences, including the following:

(1) The nature of the offense to which the plea is offered, the mandatory minimum penalty, if any, provided by law, and the maximum possible penalty provided by law;

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(3) That the accused has the right to plead not guilty or to persist in that plea if already made, and that the accused has the right to be tried by a court-martial, and that at such trial the accused has the right to confront and cross-examine witnesses against the accused, and the right against self-incrimination;

(4) That if the accused pleads guilty, there will not be a trial of any kind as to those offenses to which the accused has so pleaded, so that by pleading guilty the accused waives the rights described in subsection (c)(3) of this Rule[.]

(Provisions of RCM 910(c) not relevant to this case omitted.) RCM 910(c) incorporates the inquiry mandated by this Court in United States v. Care, supra It implements Article 45(a), which requires a military judge to reject a guilty plea if the accused “makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect.”

RCM 811(e) requires a military judge to “be satisfied that the parties consent to” a stipulation before accepting it in evidence. The non-binding Discussion to RCM 811(c) provides further guidance as follows:

If the stipulation practically amounts to a confession to an offense to which a not guilty plea is outstanding, it may not be accepted unless the military judge ascertains: (A) from the accused that the accused understands the right not to stipulate and that the stipulation will not be accepted without the accused’s consent; that the accused understands the contents and effect of the stipulation; that a factual basis exists for the stipulation; and that the accused, after consulting with counsel, consents to the stipulation; and (B) from the accused and counsel for each party whether there are any agreements between the parties in connection with the stipulation, and if so, what the terms of such agreements are.

This guidance incorporates the inquiry mandated by this Court in Bertelson, 3 MJ at 316-17. Bertelson permitted a confessional stipulation in spite of a prohibition against confessional stipulations in paragraph 1546 (1), Manual for Courts-Martial, United States, 1969 (Revised Edition),² then in effect. This prohibition was removed from the Manual for Courts-Martial, United States, 1984, and all subsequent revisions. See Drafters’ Analysis of RCM 811(c), Manual, supra at A21 — 18 (1995 ed.).³

Bertelson also held, “Should this plea bargain inquiry reveal the existence of an agreement not to raise defenses or motions, the confessional stipulation will be rejected as inconsistent with Article 45(a).” The basis for this holding was explained as follows:

To allow the Government to enter into pretrial agreements conditioned upon a stipulation (as opposed to a plea) of guilt coupled with a promise not to raise any defense or motion would utterly defeat the congressional purpose behind Article 45(a), for it would allow the Government to avoid the hurdles Congress imposed in Article 45(a) while nevertheless reaping benefits equivalent to a guilty plea.

3 MJ at 317.

Applying the foregoing body of law to the facts of this case, we conclude that the Ber-telson prohibition against accepting a confessional stipulation as part of a pretrial agreement promising not to raise any defense was violated. We hold, however, that appellant was not deprived of due process under the specific facts of this case.

Like the court below, we are at a loss to discern any tactical advantage gained by the plea of not guilty. The record does not reflect any reason for the unusual plea, such as an unwillingness of appellant to admit that his use of marijuana was “wrongful.” Because appellant has not challenged the adequacy of his representation, we have no explanation from his defense counsel. See United States v. Lewis, 42 MJ 1, 6 (1995) (defense counsel not compelled to explain actions in absence of allegation of ineffectiveness and judicial determination that evidence, if unrebutted, would overcome presumption of competence).

Notwithstanding the Bertelson violation, we hold that appellant is not entitled to relief. The basis for the prohibition against coupling a confessional stipulation and a promise not to present evidence is that it circumvents Article 45(a). In this case the military judge conducted all the inquiries and secured all the responses required by Article 45(a) and RCM 910(a). Accordingly, we conclude that appellant’s right to due process was not infringed.

Although appellant asserts that the procedures employed in this case circumvented the requirement that the military judge ensure that he understand that he waived his right against self-incrimination, to a trial of the facts, and to confront the witnesses against him, the record does not support his assertions. The record reflects that the military judge informed appellant that the confessional stipulation admitted all the elements of the offenses, except the wrongfulness of his use of marijuana and the intent to defraud in the bad-check offenses. He informed appellant that he could be convicted of all offenses based almost entirely on the stipulation. He obtained appellant’s assurance that there was a factual basis for all stipulated matters. He ensured that appellant understood that the stipulation of fact virtually amounted to a plea of guilty. He determined that appellant freely agreed to the pretrial agreement and the stipulation. After the prosecution rested its case, the judge informed appellant that, but for the agreement, he would be entitled to present evidence on his behalf, and appellant indicated that he understood. On this record, we are satisfied that appellant understood that he had incriminated himself by his agreement to the stipulation, that he was giving up his right to a trial on the merits, and that he was giving up his right to confront the witnesses against him.

We note that appellant has not proffered any evidence that was precluded by the pretrial agreement. The remedy for an illegal pretrial agreement is to declare its provisions unenforceable. Thus, the remedy in this case would be to allow appellant to present evidence in his defense, but he has proffered none.

Finally, there is no evidence that the pretrial agreement or confessional stipulation is the product of government overreaching. Appellant repeatedly assured the military judge that his actions were completely voluntary and were taken after receiving the advice of his defense counsel, whose competence is not disputed. Thus, we conclude that appellant has not been prejudiced by the procedures employed in this case. While we do not condone or encourage them, we are satisfied that no relief is warranted.

Decision

The decision of the United States Navy-Marine Corps Court of Criminal Appeals is affirmed.

1 . This version was in effect at the time of trial. The current version is unchanged.

2 . When the Military Rules of Evidence first took effect in 1980, this provision of the 1969 Manual was replaced by paragraph 54f (1) of that Manual (Change 3, Sept. 1, 1980).

3 . See n. 1, supra.