United States v. Villareal

52 M.J. 27, 1999 CAAF LEXIS 1256

• Court: Court of Appeals for the Armed Forces
• Decided: September 28, 1999
• Docket: 98-0200/NA
• Status: Published

Opinions

Chief Judge COX

delivered the opinion of the Court.

Appellant was convicted of one specification each of violating a lawful general order by bringing a firearm onto a naval installation, involuntary manslaughter, negligent discharge of a firearm, obstructing justice, solicitation to obstruct justice, and carrying a concealed weapon, in violation of Articles 92, 119, and 134, Uniform Code of Military Justice, 10 USC §§ 892, 919, and 934, respectively. The court members sentenced appellant “[t]o forfeit $400.00 pay per month for 10 years; to be reduced to E-l; to be confined for 10 years; [and] to be discharged from the service with a dishonorable discharge.”

Appellant raised two issues in his appeal, and we specified an additional issue.¹ First, he questions whether the military judge erred in denying his pretrial motion to dismiss the charges due to unlawful command influence. Second, he alleges that a specification for obstruction of justice is multipli-cious with another specification for solicitation to obstruct justice. In addition, we raised the question whether the record was incomplete, in light of the fact that the military judge’s findings of fact denying the defense motion to dismiss on the ground of unlawful command influence were not included in the record of trial.

Facts

At the beginning stages of his trial, appellant negotiated and entered into a pretrial agreement with the original convening authority in his case, the Commanding Officer, Naval Air Station, Whidbey Island, Washington — Captain Schork.

After the pretrial agreement was signed by all parties, but prior to pleas at trial, the convening authority unilaterally decided to withdraw from the terms of the pretrial agreement. According to testimony taken during the pretrial motion, and to the military judge’s findings of fact, the reason the convening authority decided to withdraw from the agreement was because of increasing pressure by the victim’s family members, who were vehemently opposed to entering into a pretrial agreement that allowed appellant to plead to manslaughter instead of murder.²

As a result of this pressure, the convening authority sought advice by telephoning his “old friend and shipmate,” who happened to be the acting superior convening authority for this case.³ This superior convening authority, Captain Eekart, stated words to the effect of “what would it hurt to send the issue to trial,” in response to Captain Schork’s concerns about maintaining the original pretrial agreement.

After this conversation, and against the advice of his staff judge advocate, Captain Schork withdrew from the pretrial agreement. Following this withdrawal, the case was transferred to a third, and completely separate convening authority — Commander, Naval Base Seattle.

During the pretrial motions stage of the trial, the defense moved unsuccessfully to dismiss all charges, or in the alternative, for specific performance of the pretrial agreement from which the original convening authority had withdrawn. Appellant’s petition for extraordinary relief, on the same grounds, was denied by the Court of Criminal Appeals in an unpublished opinion dated September 27,1995.

On November 20, 1995, we denied appellant’s writ-appeal petition for review of a version of the first granted issue, and on January 25, 1996, we denied a motion for reconsideration of that decision. See 43 MJ 476 (1996). Appellant asked us to consider whether unlawful command influence caused the revocation of his signed pretrial agreement. We did not reach the merits of appellant’s contentions, instead deciding that this issue was a matter to be reviewed during the course of ordinary appellate review. Specifically, we stated: “If warranted, the convening authority, the Court of Criminal Appeals, or this Court can grant appellant relief, regardless of his pleas to the charges and specifications, during the ordinary course of appellate review.” Id. at 476.

We have now considered this claim, the other granted issue, and the specified issue. We find, first, that appellant did not suffer prejudice to his substantial rights because the forwarding of the charges to a new general court-martial convening authority, after any perceived taint arose, cured any appearance of unlawful command influence. See Art. 59(a), UCMJ, 10 USC § 859(a). Second, the military judge ruled that the challenged offenses were multiplicious for sentencing; hence, appellant was not materially prejudiced by his failure to raise this issue at trial. Finally, appellant was not prejudiced by the absence from the record of the military judge’s specific findings on the motion because appellant was in possession of them and was on notice as to what those findings were. Accordingly, we affirm the decision of the court below.

Discussion

Issue I

An allegation of unlawful command influence is reviewed de novo. United States v. Wallace, 39 MJ 284, 286 (CMA 1994). If any findings of fact have been made in conjunction with ruling upon a motion regarding unlawful command influence, these findings are reviewed under a clearly erroneous standard. Id. Here, the military judge made detailed findings of fact, and these findings are clearly supported by the record. We accept them for our de novo analysis.

In this case, the convening authority revoked his approval of a pretrial agreement, after all parties had signed it but before appellant exercised any reliance thereon. The military judge decided that this action, while not the result of unlawful command influence, gave the appearance of unlawful command influence. Thus, in the military judge’s view, the telephone call, even though not initiated by the original convening authority’s superior, nevertheless might give a member of the general public the perception that military justice yields fixed results.

In United States v. Gerlich, 45 MJ 309 (1996), we addressed the issue whether a letter from the convening authority’s superi- or suggesting that the convening authority set aside an Article 15⁴ punishment in order to refer the case to court-martial resulted in unlawful command influence. Id. at 312. In that .case, the original convening authority testified that his superior’s letter only caused him to reexamine his position. Id. at 313. We observed that a subordinate officer is in a tenuous position when it comes to evaluating the effects of unlawful command influence being exerted on him or her. Id. Therefore, we concluded that the Government did not meet its burden of proof in dispelling at least the appearance of unlawful command influence, and because no curative action had been taken, we reversed. Id. at 313-14; see also United States v. Levite, 25 MJ 334 (CMA 1987). Unlike Gerlich, here the subordinate convening authority initiated the contact with his friend. We do not view this as unlawful command influence. ROM 104, Manual for Courts-Martial, United States (1995 ed.); Art. 37, UCMJ, 10 USC § 837. In any event, even if the telephone call created an appearance of unlawful command influence, a conclusion we need not reach here, it was cured by the transfer of the case to a new convening authority for separate consideration and action.

Appellant claims that even if there was no unlawful command influence, he was materially prejudiced by the revocation of the pretrial agreement, and thus he should be' entitled to its specific performance. See generally RCM 705. We recognize that appellant’s subsequent sentence to 10 years’ confinement was more severe than the 5 years he would have received under the original pretrial agreement. However, while appellant certainly was placed in a different position by the convening authority’s decision to withdraw from the agreement, this is not the type of legal prejudice that would entitle appellant to relief.

An accused does not have a constitutionally guaranteed right to plead guilty. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). However, under certain circumstances, specific performance of a preexisting pretrial agreement will be ordered when an accused has relied upon the agreement and performed some affirmative act or omission equating to detrimental reliance. See United States v. Penister, 25 MJ 148, 152 (CMA 1987) (findings and sentence set aside when Government withdrew from pretrial agreement after trial counsel encouraged military judge to find accused’s pleas improvident); Shepardson v. Roberts, 14 MJ 354, 358 (CMA 1983) (Government is compelled to abide by a pretrial agreement upon which an accused has detrimentally relied).

Such a situation does not exist in this case. Here, appellant knew of the withdrawal from the pretrial agreement before he had an opportunity to rely on it in any manner that would legally prejudice his right to a fair trial. See RCM 705(d)(4)(B) (“The convening authority may withdraw from a pretrial agreement at any time before the accused begins performance of promises contained in the agreement!)]”). No pleas of guilty were entered in reliance on the agreement’s mitigating action. In fact, appellant entered pleas of not guilty to all charges. Appellant had the choice of entering pleas of guilty to some or all of the charges, and may have received mitigating action from the court-martial, and perhaps the convening authority, had he done so. See Art. 45, UCMJ, 10 USC § 845; RCM 1001(f)(1); see also Shepardson, 14 MJ at 357. While there was no guarantee either way as to what would happen without the pretrial agreement, appellant was not legally entitled to such a guarantee under the circumstances of this case.

Certainly, when a convening authority unilaterally pulls out of an agreement such as this one, it may not bode well for his or her ability to enter into future agreements that might save the command both time and money. However, in the military justice system, discretion to plea bargain is a policy and leadership decision; it is not a legal decision subject to the remedies that this Court offers.

Here, the transfer of this case to an impartial convening authority cured any appearance of unlawful command influence. Because this remedy was afforded to appellant in a timely manner — prior to his trial — there is no further relief to be granted.

Issue II

For the first time on appeal, appellant claims that his convictions for solicitation of obstruction of justice and obstruction of justice are multiplicious for findings. At trial, the military judge properly submitted both charges to the members to allow for contingencies of proof by the prosecution. When the members convicted of both charges, the military judge granted a defense motion to find these two charges multiplicious for sentencing purposes. While defense counsel could have properly made a motion to have the two offenses considered multiplicious for any purpose, this motion was not made. We have held that the failure to raise such a motion at trial waives the issue, absent plain error. See United States v. Britton, 47 MJ 195, 198 (1997); United States v. Carroll, 43 MJ 487, 488 (1996).

Here, plain error cannot be found. The military judge properly instructed the members that the two offences were to be considered as one for their sentencing determinations. There is no indication that the members did otherwise. Moreover, it is not plain on its face that these two offenses would have been multiplicious for findings. See id. at 489 (solicitation and conspiracy held to be separate offenses). The same reasoning might well apply to solicitation to obstruct justice and the subsequent obstruction of justice, if the completed crime requires the agreement of two or more parties, as it did here. Under these circumstances, there is no plain error.

Specified Issue

The specified issue is resolved against appellant. Appellant acknowledges that the failure to include in the record of trial the military judge’s special findings on the command influence motion did not prejudice him at the lower court. However, appellant contends that failure to include these findings in the record of trial nevertheless prejudiced him because the staff judge advocate did not have the opportunity to comment on whether clemency or other corrective action was warranted because of the appearance of command influence. The staff judge advocate must have been aware of appellant’s command influence argument and the judge’s findings from the record of trial alone. This verbatim record was not misleading or so incomplete as to prevent meaningful review regarding litigation of the command influence motion. Here, appellant has not been substantially prejudiced by its absence from the record of trial. See Art. 59(a).

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

1 . The issues are:

I

WHETHER THE MILITARY JUDGE ERRED IN DENYING APPELLANT’S MOTIONS EITHER TO DISMISS WHERE UNLAWFUL COMMAND INFLUENCE RESULTED IN APPELLANT’S PRETRIAL AGREEMENT BEING WITHDRAWN, OR TO ABATE THE PROCEEDINGS UNTIL THE SUBSTITUTE CONVENING AUTHORITY COMPLIED WITH THE TERMS OF THE PRETRIAL AGREEMENT AS APPROVED BY THE ORIGINAL CONVENING AUTHORITY.

II

WHETHER THE MILITARY JUDGE ERRED IN INSTRUCTING THE MEMBERS THEY COULD CONVICT APPELLANT OF BOTH OBSTRUCTION OF JUSTICE AND THE LESSER-INCLUDED OFFENSE OF SOLICITATION TO OBSTRUCT JUSTICE.

Specified

WHETHER THE RECORD OF TRIAL IS INCOMPLETE, IN LIGHT OF THE ABSENCE FROM THE RECORD OF TRIAL OF THE MILITARY JUDGE’S FINDINGS OF FACT REGARDING THE DEFENSE MOTION TO DISMISS ON THE GROUND OF UNLAWFUL COMMAND INFLUENCE, SEE RCM 1103(b)(3)(A)(iv).

2 . The original pretrial agreement provided that appellant would plead guilty to some of the charged offenses, including a plea for involuntary manslaughter (Art. 119, UCMJ, 10 USC § 919) instead of murder (Art. 118, UCMJ, 10 USC § 918). In return, the convening authority agreed to limit appellant’s confinement to 5 years and his forfeitures to ¡4 of his pay per month for a period of 60 months from the date of court-martial. Appellant would obviously have benefited from this agreement, because although he was also convicted of the lesser offense of manslaughter vice murder, he was convicted of various other offenses for which the agreement would have allowed him to be found not guilty. Moreover, the original pretrial agreement would have limited appellant’s confinement to 5 years, and his court-martial adjudged 10 years. The Court of Criminal Appeals reviewed appellant's sentence and reduced his confinement period to 7)4 years. Thus, appellant is serving 2)4 more years confinement than he would have under the original pretrial agreement.

3 . The superior command was Commander, Naval Air Forces Pacific, commonly referred to as AIRPAC. Captain Eekart was the Chief of Staff to the Commander of AIRPAC, Admiral Spane. On the day of the telephone call, Admiral Spane was out of town; therefore, Captain Eekart was acting as the convening authority.

4 . UCMJ, 10 USC § 815.