United States v. Watkins

11 C.M.A. 611, 11 USCMA 611, 29 C.M.R. 427, 1960 CMA LEXIS 251, 1960 WL 4527

• Court: United States Court of Military Appeals
• Decided: July 8, 1960
• Docket: No. 13,681
• Status: Published

Opinions

Opinion of the Court

GEORGE W. Latimer, Judge:

The accused pleaded guilty to having stolen $116.00 from a fellow soldier and to two specifications of having offered money to military police officials in the execution of their duties with intent to influence their official action, in violation of Articles 121 and 134, Uniform Code of Military Justice, 10 USC §§ 921 and 934, respectively. He was sentenced to be dishonorably discharged from the service, to forfeit all pay and allowances, to be confined at hard labor for five years, and to be reduced to the grade of Recruit E-l. The convening authority reduced the period of confinement to two years but otherwise approved the sentence. A board of review in the office of The Judge Advocate General of the Army affirmed the findings and sentence, and we granted accused’s petition for review to determine whether the law officer erred in accepting the plea of guilty to the two offenses of bribery.

The operative facts necessary to present the issue properly are these. Prior to trial the accused, after having been fully informed of his rights by his defense counsel, forwarded a written proposal in which he offered to plead guilty to the charges and specifications if the staff judge advocate would recommend to the convening authority that the maximum punishment approved by him would not exceed dishonorable discharge, total forfeitures, reduction to the lowest pay grade, and confinement at hard labor for two years. The staff judge advocate agreed to make the recommendation, which was accepted by the convening authority, and accused admitted his guilt.

Prior to accepting the pleas, the law officer held an out-of-court conference in which he carefully advised the accused of his rights and interrogated him concerning his desire to plead guilty. The record of this out-of-court hearing shows that the law officer very thoroughly and properly delved into the subject to make certain that the accused understood the effect of his plea, that his judicial confession was voluntary, and that neither undue influence nor illegal inducements were offered to deny him his right of free choice. Rather than quote the entire record of the out-of-court conference, we relate generally the information developed at the hearing. After the law officer notified the accused of his rights and ascertained that he was acting voluntarily and with the advice and consent of his counsel, the law officer asked the accused to explain the reasons which impelled him to enter the guilty pleas. The accused first answered that he was in fact guilty, but he then went on to state that the investigating agent commenced the conversation dealing with bribery by asking him what he would pay if the prosecution was dropped. Accused indicated he would pay $300.00, at which point the agent left and returned with the desk sergeant who had to be in on the deal, inquiring how much accused would give him. Accused replied he would pay the latter $100.00, and he would have the money available for both officials in about six weeks. When the law officer asked accused to repeat the incident, exactly as it occurred, he stated that his reply to the agent’s initial inquiry was that he had only $400.00, of which he would give the investigator $300.00. Thereupon the agent mentioned the desk sergeant, telling accused to go and get him. When accused had done so he was re-asked how much he would pay and he finally offered to give $300.00 to the investigating agent and $100.00 to the desk sergeant.

When the accused had finished relating his version of the transactions, the law officer announced that, in view of accused’s contention that the agent initiated the criminal scheme, there might be some question about entrapment and that he had reservations about accepting the plea to the bribery offenses. Defense counsel consulted with the accused, and then made a statement in justification of the plea. The law officer was not convinced so he again notified the accused that he need not plead guilty to the bribery specifications and that he could withdraw his plea of guilty to the larceny charge if he desired to do so. Defense counsel then stated he had given serious consideration to the defense of entrapment, he had discussed the matter with the accused, he had talked with the witnesses who would testify for the prosecution, and he did not believe the defense could be sustained. Upon being interrogated by the law officer, the accused replied that he agreed with the statement. In addition, he stated that he knew the agents would dispute his version of the transaction, that he thought the court-martial would believe them and that he believed it was to his best interest to enter the plea of guilty. The defense counsel augmented this statement by saying the larceny offense alone would permit the court to impose five years’ confinement, that he too believed the defense of entrapment would ultimately be resolved against the accused, and in his considered judgment the accused would be benefited by judicially confessing his guilt. Finally, the law officer who was interested in making certain that no improper influence was being exerted on the accused, made it clear he would not accept the plea unless the accused was of the opinion that it was for his best interests. Upon being assured such was accused’s belief, the plea was permitted to stand.

Article 45 (a), Uniform Code of Military Justice, 10 USC § 845, provides as follows:

“If an accused arraigned before a court-martial 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, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.”

Involved in that Article are three possibilities which should be considered by the law officer; namely, irregularity in the plea, a post-plea showing which brings out matters inconsistent therewith, and improvidence. In addition to those matters, there is the issue of voluntariness. Irregularity in the plea is not here involved, so we need only discuss improvidence, inconsistencies, and voluntariness. We treat them in the order stated.

In view of the fact that in the proceedings accused was represented by certified counsel and the issue of improvidence indirectly involves the judgment of defense counsel in advising the law officer that it would be to his client’s best interest to plead guilty, we mention some of the facts influencing his recommendation that the plea was provident. Had the accused been convicted on all three specifications, the maximum punishment to which he could have been sentenced would have been dishonorable discharge, eleven years’ confinement at hard labor, total forfeitures, and reduction to the lowest pay grade. Shortly after apprehension — and parenthetically we mention the accused was observed in the perpetration of the larceny and caught red-handed with the stolen goods — the accused executed a written statement in which he confessed the larceny and admitted he offered a payment of $300.00 to the military police investigator if he were allowed to go free and $100.00 to the military police desk sergeant if he would forget about the case. The accused had two previous convictions on his record and with the larceny admitted his credibility would be doubtful. His statement in the out-of-court hearing was inconsistent in some respects, and the likelihood of a military police investigator and a desk sergeant soliciting bribes under the facts and circumstances shown by the entire record are extremely remote. In addition, the accused signed a stipulation of facts prior to trial in which he conceded that he made the offers to influence the official acts of the two military officials. Surely those matters would show the plea had merit unless defense counsel was in possession of information which might raise some doubt about the strength of the Government’s ease. For reasons which will hereinafter more fully appear, no showing to that effect is made.

In United States v Hinton, 8 USCMA 39, 23 CMR 263, in a unanimous opinion authored by the Chief Judge, we discussed the legal criteria for a determination of the inconsistency of a guilty plea. In that instance, the Chief Judge stated:

. . In a guilty plea case we cannot disregard the probability that the accused and his counsel weighed the evidence and determined that it was inadequate for an effective legal defense or to negate the existence of a specific intent. As a result, they could well have decided to disregard the evidence in favor of the possible advantage of a guilty plea. See Newman, Pleading Guilty for Considerations, A Study of Bargain Justice, 46 The Journal of Criminal Law, Criminology, and Police Science 780 (1956). The critical question, therefore, is whether the accused and his counsel were aware of the legal effect of the evidence claimed to be inconsistent with the plea of guilty.”

In determining whether there was any inconsistency between the judicial confession and the unsworn statement, we need only turn to the record, for there we find evidence that both accused and his counsel had given consideration to the defense of entrapment and were satisfied it could not be established. In that conclusion we concur. First, as the colloquy between the law officer and the accused and his counsel developed, it became apparent that the defense had appraised the evidentiary structure and concluded that, even if an issue could be raised, the quality and quantity of the Government’s evidence would overwhelm the highly improbable testimony of the accused. Second, we find nothing in this record which negates an intent on the part of the accused to willingly offer to pay officers of the Government to escape prosecution. Taking his statement at face value, he goes no further than to say he would not have conceived the idea to give the two officers money to drop the prosecution if one of them had not suggested it. However, not once did he contend he did not have a consciousness of guilt. Nor did he assert that he did not offer money to have evidence suppressed. The gravamen of bribery is the perversion of justice, and it is a crime in which both the solicitor and the payor can be guilty. Merely because one opens up a conversation about a bribe does not mean that if an offer is made by the other party, he may go free because the former malefactor suggested the crime. Here we need not grapple with the question of whether under different circumstances entrapment is a defense to bribery, for we do not have an unwilling victim who is induced to commit a crime by overreaching agents. On the contrary, accused conceded that when the inquiry was made he did not demur but joined in the scheme by fixing the amount he would pay and the terms of payment. Certainly, he presented no circumstance which affected his right of free choice except his hope to escape prosecution. As we understand the law of entrapment, there must be evidence to show some unwillingness on the part of the accused to commit the crime, which is broken down by the activities of the Government agents. Here we have neither, as the accused was not only receptive to the suggestion, he went to some lengths to firm it into an agreement, and it is not inferable from his statement that the agents were using means to convince him against his will. Furthermore, when the law officer offered to permit accused to come to grips with the Government on the question of who originated the fraudulent scheme, and whether he was induced to commit an offense he would not have otherwise committed, the accused refused to accept the invitation. If he had no criminal intent, he was given the chance to require the prosecution to prove that element of the offense. Both he and his counsel knew the true facts, and they were unwilling to require the Government to produce them. In addition, after a full and thorough explanation was made to the accused about his privilege to put the Government on its proof that there was no entrapment, he stated he was pleading guilty to the crime because he did offer to pay one agent $300.00 and the other agent $100.00 if they would drop the investigation. He and his counsel recognized his guilt and pleaded with the law officer to permit the plea to stand. They were satisfied there was no inconsistency, and we find no reason to disagree with their conclusion. Of course, accused might now like to change his mind, although he personally makes no representation that he would change his plea if given another hearing.

That brings us to the question of voluntariness. The law officer did everything within reason to satisfy himself that the plea was voluntary and to make certain the accused understood his right to require the Government to prove every element of the offenses. He asked about coercion, compulsion and inducement, he invited the accused to put the Government to the test, and he made it clear to the accused that he should stand on that right unless he was convinced it was to his best interest not to stand trial. Moreover, accused was defended by experienced counsel who insulated him from external pressures and hasty and ill-conceived action. Defense counsel understood the risks the accused would run on trial and the benefits he would enjoy from his confession of guilt. Accused himself fully understood that he had much to win and little to lose by complying with his offer for, on the one hand, had he elected to stand trial and been found not guilty of the briberies, his sentence on the larceny offense would have been substantial. On the other hand, had he lost, his affirmed sentence might have included confinement much in excess of two years.

In the military service, a practice has been developed which permits an accused to initiate proceedings for leniency in the event he enters a plea of guilty. This consists of an overture to the convening authority to set the maximum sentence he will affirm if a plea of guilty is entered. A reading of many records in which pleas of guilty have been entered has established a sound base for the belief that this is a salutary procedure for an accused. He does not make a deal with the tribunal which imposes the original sentence, but he does fix a ceiling which is binding on appellate authorities. The convening authority must eventually determine the appropriateness of sentence, and he gives the accused advance information on his views if the accused elects to confess his guilt. The procedure offers the accused a chance to make certain that his sentence will not exceed fixed limits and yet leaves him unbridled in the presentation of extenuating and mitigating evidence at the trial. He can bring before the court-martial members any fact or circumstance which might influence them to lessen the punishment and his lot is bettor if they find appropriateness at a lower level than the understood maximum. The arrangement with the convening authority cannot help but benefit the accused for it reduces his punishment if a guilty plea is entered from the permissible maximum set by law. Certainly that procedure does not smack of compulsion.

It is feared by some that this procedure may work to the disadvantage of the accused, but I assert experience shows to the contrary. It is not unlike the well-established civilian practice, but it is more beneficial to the accused. It is generally known that in civilian courts the great bulk of criminal cases is disposed of by pleas of guilty after some discussion between the defendant and his counsel and the prosecuting attorney. The latter frequently makes some commitment as to the sentence he will recommend or as to other charges or prosecutions he will nolle prosequi. If such a practice were discouraged, there would be little incentive for a guilty man to confess his error and seek clemency at the hand of the judge. In the military, the same principle should be applicable, and in the end justice would be harmed if accused persons could not be assured of some clemency if they plead guilty. Of coux’se, it is possible that in individual cases abuses could creep in and prejudice result. Obviously, if threats, coercion of any form, misrepresentations, unfulfilled promises, deceptions, or illegal inducements of such nature that an accused is denied his right of free choice, are employed, then the plea is involuntary and should not be accepted. But those influences can be ferreted out if a proper record is made and they are not found in the case at bar.

The rule in civilian courts is that a plea of guilty should not be accepted without the judge first determining that the plea is made voluntarily. Rule 11, Federal Rules of Criminal Procedure. Certainly that rule has been and is used by military courts, and that is the theory we outlined above. If it is made to appear to a law officer from the facts adduced that the accused was denied his free right of choice, then the plea should be rejected. On the contrary, if all the evidence shows a complete freedom of will on the part of an accused who has consulted with and been advised by counsel, the plea should be accepted. In the case at bar, the law officer took every reasonable precaution to make certain that the plea of guilty was the voluntary act of the accused and the record supports his conclusion that the plea was provident. Obviously, some reward is anticipated when an accused seeks to obtain a favorable recommendation on sentence. It would be pointless for this defense counsel to have discussed the subject of leniency with the staff judge advocate if he did not expect to gain some benefit from the negotiation. But that does not raise the spectre of involuntariness and when the offer is initiated by the accused voluntarily, its acceptance by the Government does not charge the transaction with an illegal inducement. We, therefore, do not find involuntariness in this record.

For the foregoing reasons, we affirm the decision of the board of review.