United States v. Hall

26 M.J. 739, 1988 CMR LEXIS 120, 1988 WL 51355
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedFebruary 26, 1988
DocketNMCM 87 2342
StatusPublished
Cited by4 cases

This text of 26 M.J. 739 (United States v. Hall) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hall, 26 M.J. 739, 1988 CMR LEXIS 120, 1988 WL 51355 (usnmcmilrev 1988).

Opinions

RUBENS, Judge:1

Pursuant to his pleas, appellant was convicted at a general court-martial bench trial on 18 February 1987 of two specifications of larceny, two specifications of forgery, and seven specifications of bad checks in violation of Articles 121, 123, and 123a, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 921, 923, and 923a, respectively. He was sentenced to a dishonorable discharge, confinement for twelve years, forfeiture of $300 pay per month for 12 months, a fine of $2,000, and confinement for an additional 3 months if the fine was not paid. Pursuant to the pretrial agreement, the convening authority changed the fine to forfeitures and approved forfeitures of $633 pay per month for 6 months and forfeitures of $300 pay per month for 6 months thereafter, reduction to E-l, a dishonorable discharge, and confinement for 12 years, but suspended all confinement in excess of 24 months for one year from the date of trial.

Appellant alleges as his single assignment of error that the sentence to 12 years of confinement is inappropriately severe.

The presentencing portion of this trial was largely uneventful: the military judge considered the page 1 data concerning appellant; the Government presented matters in aggravation; the defense presented matters in extenuation and mitigation, including appellant’s unsworn statement; finally, each counsel made an argument on sentence and the military judge closed the court-martial for deliberations. However, the military judge opened the court-martial forty minutes later and immediately announced a recess to confer with counsel at a conference under Rule for Courts-Martials (R.C.M.) 802, Manual for Courts-Martial, United States, 1984 (MCM). The military judge called the court-martial to order twenty-six minutes later and announced:

MJ: The court will come to order. The record should reflect that all parties who were present when the court recessed are again present.
During the recess, counsel for the government, counsel for the accused, and the military judge held a conference pursuant to Rule for Courts-Martial 802. The court advised both counsel at that time, after considering and reconsidering the evidence on sentencing that was heard in this case, and trying to give as full weight as it possibly can to — I suppose you would call it the leading extenuating theory of the defense, namely the Filipino wife in question and by inference the amount of pressure, if you will, that that situation put on the accused to generate extra money. Nevertheless, I indicated to both counsel, that it believes that a substantial amount of confinement should be awarded in the case. The court discussed with counsel the possibility and indeed whether or not it even had the power in the military justice system to reject the pretrial agreement in this case if it found that the amount of confinement agreed to by and between the accused and the convening authority was insufficient to protect society. And, the court and counsel discussed various options and interim outcomes should the court take such a course. And, we all recognize that it, of course, is perhaps a novel issue of military law, although done with regularity by judges presiding in criminal cases in federal district courts and state courts.
The court, at this point, has decided to go ahead and conclude this trial unless it finds that the sentence to confinement agreed to by the accused and the convening authority is grossly inadequate to protect society. And, I indicate [sic] to both sides that this has been a growing concern with this particular court, but I’m disposed unless, if you will, my conscience is shocked in the direction that it normally isn’t, that is, unless the agreement is so grossly inadequate that I [741]*741feel society is not adequately protected, then I intend to simply conclude the trial in a routine fashion.
The court will also, however — may, however, consider after trial how it may pursue this issue following the trial. And, I think I should also indicate for the record that I still at this point have not and did not want to see the quantum portion of the pretrial agreement. Gentlemen, does that adequately describe our conference?
TC: Yes, sir.
DC: Yes, sir.

R. 84-85 (emphasis added). The military judge then announced the sentence and completed the R.C.M. 910 pretrial agreement inquiry. After ascertaining that appellant and both counsel agreed with his interpretation of the quantum portion of the agreement (AE II), the military judge stated: “Okay. I continue to find the pretrial agreement to be in accord with appellate case law, not contrary to public policy, and with great misgivings, nor my own notions of fundamental fairness.” R. 90 (emphasis added). Finally, the military judge notified appellant of his appellate rights in accordance with R.C.M. 1010 and adjourned the court-martial.

The military judge apparently believed that his duties included making an independent determination whether the quantum portion of the pretrial agreement adequately protected society. The military judge’s statement raises several issues: first, is his statement with respect to judicial review of a pretrial agreement correct; if not, what is the military judge’s role with respect to review of the quantum portion of a pretrial agreement; finally, if the military judge’s statement in this case is incorrect, did this constitute prejudicial error?

The military judge may have voiced the legal basis for his beliefs concerning judicial scrutiny of the quantum portion of pretrial agreements at the R.C.M. 802 conference, but he did not state them on the record. He did indicate, however, that he was not sure that he had the power to reject the agreement because it did not adequately protect society and that this was a “novel issue of military law.” R. 85.

The UCMJ is silent on pretrial agreements. MCM, 1969 (Rev.), was also silent on pretrial agreements, but they are discussed at some length in MCM, 1984. R.C.M. 910(f) sets forth the mandatory minimum plea agreement inquiry. Essentially, the military judge is required to examine the agreement, reject any provision which does not comply with R.C.M. 705, and then conduct an inquiry to ensure that the accused understands the agreement and that the parties agree with his explanation of the terms. The trial guide in Appendix 8 of MCM, 1984, contains a sample plea agreement inquiry2 which incorporates these requirements. These provisions do not state that the military judge has any duty or right to review the quantum portion of the pretrial agreement for appropriateness. The military judge, therefore, could not have relied on the UCMJ, R.C.M. 910, or the trial guide in MCM, 1984, for his beliefs concerning judicial scrutiny of pretrial agreements.3 Likewise, the Manual of the Judge Advocate General does not authorize or require this review.

The military judge stated that Federal District Court judges regularly reject plea agreements which do not adequately protect society. R. 85.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Raines
Navy-Marine Corps Court of Criminal Appeals, 2022
United States v. Alkazahg
Navy-Marine Corps Court of Criminal Appeals, 2021
United States v. Warner
33 M.J. 522 (U S Air Force Court of Military Review, 1991)
United States v. Cantu
30 M.J. 1088 (U.S. Navy-Marine Corps Court of Military Review, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
26 M.J. 739, 1988 CMR LEXIS 120, 1988 WL 51355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hall-usnmcmilrev-1988.