United States v. Watruba

35 M.J. 488, 1992 CMA LEXIS 198, 1992 WL 308611

• Court: United States Court of Military Appeals
• Decided: September 30, 1992
• Docket: No. 66,954; ACM 28902
• Status: Published

Opinions

Opinion of the Court

WISS, Judge:

In a series of mixed pleas at his general court-martial comprised of a military judge alone, appellant pleaded not guilty to introducing cocaine onto a military installation between February 15 and 18, 1990. Ultimately, the military judge convicted appellant of this offense, as well as most of the others with which he was charged, and sentenced him to a bad-conduct discharge, confinement for 3 years, total forfeitures, and reduction to the lowest enlisted grade. The convening authority approved these results, and the Court of Military Review affirmed in an unpublished opinion.

On appellant’s petition, this Court granted review to determine whether the military judge conducted an adequate inquiry of appellant incident to accepting a confessional stipulation of fact dealing with the alleged introduction of cocaine. See United States v. Bertelson, 3 MJ 314 (CMA 1977). Now, we conclude that she did not, so appellant’s guilty pleas to this offense cannot stand.

I

The record here reflects a trial in procedural disarray. Following arraignment, Watruba pleaded, inter alia, guilty to divers uses of cocaine but not guilty to introduction (specification 2, Charge I) as indicated above. After advising Watruba about the rights he would surrender in connection with his guilty pleas, the military judge asked whether there was “a stipulation of fact in this case.” Trial counsel responded that there was, had it marked as a prosecution exhibit, and handed it to the military judge.

At this point, the military judge turned her attention to Watruba. She asked him whether the signature on the document was his; whether he had read it prior to signing it; and whether he “understood] the Stipulation.” After Watruba had responded affirmatively to these questions, the following colloquy occurred between him and the military judge:

MJ: At this time I do want to discuss the Stipulation of Fact to ensure that you do understand it and agree to how it will be used.

A Stipulation of Fact is an agreement between the trial counsel, defense counsel, and yourself that the contents of the agreement are true and if entered into evidence are the uncontradicted facts in the case. No one can be forced to enter into a stipulation, so you should enter it only if you truly want to do so. Do you voluntarily enter the stipulation because you feel it is in your best interest to do so?

ACC: Yes, ma’am.

MJ: A stipulation of fact ordinarily cannot be contradicted. If the stipulation should be contradicted after I have accepted your guilty plea I would then have to reopen the providence inquiry. So, can you tell me at this time, is there anything in the stipulation that you disagree with or you think is not true?

ACC: No, ma’am.

MJ: Is there any objection to Prosecution Exhibit 1 for Identification?

DC: No objection, your Honor.

MJ: Prosecution Exhibit 1 for Identification, the Stipulation of Fact, will be admitted into evidence as Prosecution Exhibit 1.

I will take a brief recess to read over the stipulation.

(Emphasis added.)

When court reconvened 30 minutes later, the military judge conducted her providence inquiry into the specifications to which Watruba had pleaded guilty, beginning with specification 1 of Charge I, wrongful use of cocaine between February 15 and 18, 1990. See United States v. Care, 18 USCMA 535, 40 CMR 247 (1969). During his recitation of the facts supporting his pleas to this offense, appellant made statements that, as well, admitted the related wrongful introduction to which he had pleaded not guilty (specification 2, Charge I).

Next, the military judge turned her attention seriatim to specification 2 of Charge I, the wrongful introduction:

MJ: Now, with regard to Specification 2 of Charge I, / realize you have entered a not guilty plea, but the stipulation essentially admits the elements of the offense of wrongful introduction of cocaine onto a military installation. So basically what I will do is treat it as if it were a plea of guilty and you understand that you then give up the constitutional rights I mentioned earlier— the right to remain silent, the right to be confronted by the evidence against you—

ACC: Yes, ma’am.

MJ:—and the other one [right to trial of the facts by the court].

At this point, the military judge proceeded as she had promised: She informed Watruba of the elements of wrongful introduction, asked whether the “elements basically describe what happened,” and asked him to “tell [her] what happened with regard to the introduction.” In response, Watruba related the events in detail that, essentially, he already had expressed when discussing his guilty pleas to the related wrongful use.

After the military judge had completed her providence inquiry into the other three offenses to which appellant had pleaded guilty (specifications 3 and 4 of Charge I and the lone specification of Charge II), she asked whether “the Government plan[ned] to proceed with evidence on the remaining charges and specifications.” Trial counsel answered that he was prepared at that time to proceed with Charges III and IV and their specifications. No mention was made of specification 2 of Charge I, and no evidence subsequently was offered either by the prosecution or by the defense as to this specification. With only the stipulation of fact and appellant’s responses during the “providence inquiry” before the court, the military judge entered a finding of “guilty” of wrongful introduction based on the “pleas of guilty and the evidence adduced at trial.”

II

This Court had occasion in United States v. Bertelson, supra, to consider under what circumstances a confessional stipulation—that is, “a stipulation which practically amounts to a confession,” 3 MJ at 315 n.2—is admissible.¹ Cf. United States v. Long, 3 MJ 400 (CMA 1977). The Court concluded that, before accepting such a stipulation into evidence, the military judge must give certain advice to the accused in order to assure that the accused knowingly and intelligently waives his right not to, in effect, judicially confess to the charged crime.²

First, the military judge is “required to expressly communicate to the [accused] before accepting his confessional stipulation that ... it [can]not be accepted without his consent.” Second, the judge must “apprise the accused ... that the Government has the burden of proving beyond a reasonable doubt every element of the offense and that by stipulating to material elements of the offense, the accused alleviates that burden.” 3 MJ at 316. Third, the military judge “must also ascertain from the accused on the record that a factual basis exists for the stipulation.” Finally, “[t]he trial judge also shall conduct a plea bargain inquiry in accordance with the guidelines set forth in United States v. Green, 1 MJ 453 (1976).” 3 MJ at 317. See RCM 811(c), Discussion, Manual for Courts-Martial, United States, 1984.

In many respects, as the military judge observed, this predicate to accepting a confessional stipulation of fact parallels the inquiry into the providence of a guilty plea. Still, significant legal differences exist between, on the one hand, pleading not guilty but agreeing to a confessional stipulation and, on the other, pleading guilty. For instance, in the former case, the accused does not automatically waive all of the constitutional rights that are waived as a matter of law by a plea of guilty; clearly, for example, his plea of not guilty still as a matter of law requires a trial of the facts by the court. Thus, the military judge’s advice here regarding Watruba’s waiver of his constitutional rights was incorrect.

Additionally, the military judge did not forthrightly advise Watruba, as Bertelson requires, that his stipulation alleviates the burden that the Government otherwise would have to shoulder of proving every element of the offense beyond a reasonable doubt. See also RCM 811(c), Discussion: Prior to accepting a confessional stipulation, the judge must, inter alia, ensure that the accused “understands the contents and effect of the stipulation.” (Emphasis added.) Instead, the military judge here advised Watruba that the Government had this burden if the accused pleaded not guilty—which is precisely how he did plead.

Moreover, all this must precede the military judge’s acceptance of a confessional stipulation. Here, it did not. The juxtaposition was not a mere technical faux pas in procedure. The required order is a logical and legal imperative to assuring that the accused is fully and accurately informed of the meaning and effect of his agreement to stipulate, unburdened by the immeasurable psychological impact of having already agreed to the stipulation.

Under these circumstances, we cannot conclude that, as a matter of law, Watruba knowingly and voluntarily consented to the stipulation of fact. The procedural confusion that resulted from the judge’s ad hoc roadmap through Bertelson simply was too great. Since the stipulation was the only evidence of the charged wrongful introduction, the finding as to that offense cannot stand. Additionally, inasmuch as the mili-

tary judge denied a defense motion to treat the wrongful introduction and the wrongful use as multiplicious for sentencing, we cannot conclude that there is no fair risk that the error here affected the sentence.

Ill

The decision of the United States Air Force Court of Military Review is reversed as to specification 2 of Charge I and the sentence. The finding as to that specification and the sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing on that specification and the sentence may be ordered.

Chief Judge SULLIVAN concurs.

1 . At the outset of Part I of her opinion, Judge Crawford suggests that Bertelson was "based on a clarification of a provision of the Manual for Courts-Martial, United States, 1969 (Revised edition), a dissent in a Federal case, and the ‘spirit’ ... and purpose of Article 45(a), Uniform Code of Military Justice, 10 USC § 845(a).” 35 MJ at 493. First, Bertelson quite clearly was not "based on” any provision of the 1969 Manual for Courts-Martial. Indeed, that opinion actually overrode paragraph 154¿ (1) of that Manual and permitted use of confessional stipulations notwithstanding the Manual’s proscription of such use. 3 MJ at 315. Second, certainly Bertelson quoted from the dissenting opinion of Judge Ely in United States v. Terrack, 515 F.2d 558, 561-62 (9th Cir.1975). However, a reading of the majority opinion in Bertelson at 316-17 makes it obvious that Judge Ely’s opinion was quoted simply because the majority agreed with the rationale. The true basis of Bertelson—and the only basis—was Article 45(a). The Bertelson majority likened a confessional stipulation to a guilty plea and determined that similar interests were involved. 3 MJ at 315 n. 2.

Accordingly, Judge Crawford's view in her dissenting opinion that "the bases for Bertelson are gone,” 35 MJ at 495, is puzzling. First, inasmuch as the Manual paragraph was not a basis for that opinion, its deletion from the 1984 Manual certainly does nothing to undermine the rationale of Bertelson. Second, as was just pointed out, there was only one basis, and that basis most surely is not "gone.”

2 . As Judge Crawford’s dissenting opinion acknowledges, 35 MJ at 494, 495-496, the guilty-plea inquiry required under Article 45(a) and United States v. Care, 18 USCMA 535, 40 CMR 247 (1969), is much different from the inquiry that occurs in a United States District Court. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (federal defendant can plead guilty even while protesting his guilt, as long as the record persuasively indicates guilt). Thus, it should come as no shock that the confessional-stipulation inquiry required under Bertelson that is founded on Article 45(a) should differ from the stipulation inquiry conducted in District Court. Since the Bertelson majority correctly recognized the similarity between guilty pleas and confessional stipulations, modification of the Bertelson-mandated inquiry to approximate the stipulation inquiry in District Court is not logical or appropriate.