Inquiry into Quantum and Resolution of Ambiguous Terms
Discussion of the inquiry into quantum and resolution of ambiguous terms regarding pretrial agreements and negotiations:
United States v. Grisham , 66 M.J. 501 (A. Ct. Crim.App. 2008). ACCA provided an excellent summary of the contract principles used to interpret pretrial agreements. In Grisham, the approved pretrial agreement included this provision: “The government agrees not to prefer any additional charges or specifications against the accused for any potential misconduct of which the government is aware at the time this offer is signed .” (emphasis supplied by the court). The government became aware of misconduct in the nine days between the date the accused signed the preFh2trial agreement and the date the convening authority approved it: the accused and counsel signed the pretrial agreement on 1 December 2004; the accused (who was in pretrial confinement) provided a urine sample as part of a prison-wide urinalysis; on 6 December 2004, the Army’s laboratory found amphetamines in the accused’s sample; on 10 December 2004, after conducting several standard confirmatory tests, the laboratory certified the positive result; also on 10 December 2004, the convening authority approved the pretrial agreement. The accused pled guilty pursuant to his pretrial agreement in
Grisham I . The government preferred additional charges for a second court-martial,
Grisham II, including the wrongful use of amphetamines from December 2004. The ACCA held the pretrial agreement referred to the date the accused signed the pretrial agreement (as opposed to the date the convening authority signed it) and upheld the conviction for wrongful use.
- “A pretrial agreement is a contract created through the bargaining process between the accused and the convening authority. It is well established in federal and military courts that pretrial agreements will be interpreted using contract law principles.”
- “The military judge has a duty to “resolve any ambiguities, inconsistencies, or misunderstandings between the accused and the government during the providence inquiry.” The court emphasized that if there is ambiguity, “it is the military judge’s responsibility to clarify the terms of the agreement on the record, and ensure that all parties, especially the accused, understand the terms and their implications”
- “Against this lengthy dissertation of the law, the case ultimately came down to the military judge’s discussion of the PTA with the accused. The military judge in Grisham Iask ed the accused about the effective date of the disputed provision and all parties agreed that it was 1 December 2004, the date the accused signed the offer to plead guilty. Military judges should force parties to clarify vague provisions on the record. ACCA commended the military judge in the first trial for asking the accused if he understood the term to mean that 1 December 2004 was the effective date.
- . United States v. Smead
, 68M.J. 44 (C.A.A.F. 2009). A pretrial agreement is a constitutional contract between the accused and the convening authority. In a typical agreement, the accused foregoes constitutional rights in exchange for a benefit, normally a reduction in sentence. As a result, when interpreting pretrial agreements, contract principles will be outweighed by Due Process Clause protections for an accused.
- United States v. Craven , 69 M.J. 513 (A.F. Ct.Crim. App. 2010), review denied , 69 M.J. 209 (C.A.A.F. 2010). The accused pled guilty pursuant to a pretrial agreement that included this quantum: “The approved sentence will not exceed confinement in excess of thirty-six months (36).” The convening authority approved an adjudged dishonorable discharge, 28 months of confinement2, and reduction to E-1. On appeal, the accused argued the quantum portion limited the sentence that could be approved to 36 months’ confinement, which implicitly required the rank reduction and punitive discharge be disapproved. The AFCCA found the quantum was ambiguous and affirmed. “In determining the parties’ understanding on ambiguous pretrial agreement terms, this Court will give the greatest weight to the parties’ stated understanding at trial, for it is at the pretrial and trial stages where pretrial agreement disagreements can better be resolved.” In Footnote 2, the court cited
United States v. Acevedo , 50 M.J. 169, 173 (C.A.A.F. 1999) for proposition that “trial defense counsel is under a continuing duty to reveal in open court any discrepancy between the defense understanding of the potential sentence and that adjudged by the court”
- In dissecting the language, AFCCA noted: (1) the provision stated “the approved sentence” rather than the unambiguous “the approved sentence to confinement”; and (2) the quantum did not expressly limit the convening authority’s ability to approve other lawfully-adjudged punishments. The AFCCA then concluded, “[T]he pretrial agreement provision is ambiguous and we cannot discern the parties’ intent without examining extrinsic evidence that may shed some light on the parties’ intent.”
- The AFCCA quickly concluded the parties intended the provision only limit the accused’s sentence to confinement without limiting other punishments. The court emphasized that the parties at trial agreed with the military judge’s interpretation that the convening authority could approve the sentence as adjudged; the AFCCA noted this factor alone would have been sufficient for the court to find the parties’ intent. The AFCCA then found its determination was “buttressed by the fact that neither the appellant nor his trial defense counsel objected to the SJAR” 2 The military judge had sentenced the accused to confinement for 34 months, reduction to E-1, and to be dishonorably discharged. In footnote 5, the AFCCA noted the convening authority approved 28 months’ confinement “in an exercise of clemency.” as well as the accused waiting until appeal to dispute the meaning of this provision.
- United States v. Acevedo
, 50 M.J. 169 (C.A.A.F. 1999). Accused entered into a PTAwhich provided that “a punitive discharge may be approved as adjudged. If adjudged and approved, a dishonorable discharge will be suspended for a period of 12 months from the date of court-martial at which time, unless sooner vacated, the dishonorable discharge will be remitted without further action.” The military judge sentenced accused to confinement for 30 months, total forfeitures, reduction to E-1, and a bad-conduct discharge. The military judge then stated regarding the BCD, “there’s nothing [in the PTA] about doing anything to a bad-conduct discharge so that is not suspended. Right?” to which both counsel agreed. The CA approved the BCD. CAAF held that it appeared that all parties had the same understanding, that an unsuspended bad-conduct discharge was envisioned as a possible approved and executed punishment.
- United States v. Gilbert, 50 M.J. 176 (C.A.A.F. 1999). A companion case to Acevedo.
The PTA had a similar provision relating to suspension of a DD, and also suspended confinement in excess of 6 months for 12 months. The military judge sentenced accused to confinement for 12 months, reduction in grade to E-2, forfeiture of all pay and allowances for 12 months, and a bad-conduct discharge. The military judge recommended suspension of the BCD. The military judge noted the impact of the PTA, on the adjudged sentence. None of the parties commented with respect to the military judge’s recommendation that the convening authority suspend the bad-conduct discharge, which would have been an empty gesture if the agreement already required it. CAAF held the provision was lawful and that the BCD could be approved.
- United States v. Sutphin,
49 M.J. 534 (C.G. Ct. Crim. App. 1998). Accused enteredinto a PTA that described five parts of the sentence covered by the agreement. One portion was characterized as the “amount of forfeiture or fine,” and it included forfeitures of pay and allowances as being included under the agreement but did not mention the possibility of a fine; the last portion of the PTA stated “any other lawful punishment (which shall expressly include, among others, any enforcement provisions in the case of a fine).” The military judge never inquired whether the accused understood a fine could be approved and imposed. The military judge ensured the accused understood that the sentence was a limitation on what could be done with him. The military judge then instructed the members they could adjudge a fine, along with confinement and a punitive discharge; the panel’s sentence included a $5,000 fine. The court held the portion of the sentence which included a fine must be disapproved, since the reasonable conclusion was that only forfeitures may be approved.
- United States v. Edwards , 20 M.J. 439 (C.M.A. 1985). Where fine not mentioned inagreement and sentence includes total forfeitures plus a $1,000 fine, the fine could not be approved. See also United States v. Morales-Santana , 32 M.J. 557 (A.C.M.R. 1991);
United States v. Gibbs , 30 M.J. 1166 (A.C.M.R. 1990).
- United States v. Womack , 34 M.J. 876 (A.C.M.R. 1992). Accused submittedagreement to plead to drunk driving if government would not go forward on related assault charge. Pretrial agreement was silent as to punishment. MJ opined (after reading this sentence and comparing it to the PTA) that the literal meaning was that the CA could only impose “no punishment.” Military judge and trial counsel “agree to disagree.” Military judge should have resolved ambiguity. Failure to resolve ambiguity resolved in favor of accused.