Problematic terms or conditions

Overview of problematic terms or conditions in pretrial agreements and negotiations:

militarydefenselawyers231A “waive all waivable motions” provision can be problematic. Under RCM 910(f)(4), the military judge must ensure the accused understands the pretrial agreement. If the accused and counsel did not anticipate a motion at trial, yet purported to waive all motions, the waiver of the unanticipated motion was arguably unknowing. Military judges, in an abundance of caution, should ask defense counsel what specific motions are being waived under a “waive all waivable motions” provision. This practice precludes challenges on appeal that an accused was unaware of other motions or (more problematic) believed he was waiving a non-waivable motion (like speedy trial).                                                                                          b.Cf. United States v. Rivera , 46 M.J. 52 (C.A.A.F. 1997), affirming 44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term in PTA which required that accused waive “all pretrial motions” was too broad, and purported to deprive accused of right to make motions that could not be bargained away);
United States v. Jennings , 22 M.J. 837, 838-39 (N.M.C.M.R. 1986) (provision in pretrial agreement to “waive any pretrial motion I may be entitled to raise” is “null and void” as “contrary to public policy”).                                               c. See also United States v. Silva , 1997 CCA LEXIS 267 (N-M. Ct. Crim. App. 1997) (unpub.). Term in PTA, which required accused to “waive all waiveable motions” not contrary to public policy and RCM 705(c)(1)(B). Such a term does not include motions that are nonwaivable under RCM 705(c)(1)(B).

  • United States v. Giroux , 37 M.J. 553 (A.C.M.R.1993). Defense counsel submitted a post-trial “Conditional Request for Delay” to cover a portion of time between the preferral of charges and the date of trial. Defense counsel was willing to accept either 37 or 72 days of processing time in return for sentence mitigation by the convening authority. Ambiguity in convening authority’s acceptance was resolved in favor of accused. A.C.M.R. pronounced that “for obvious reasons, we strongly recommend that convening authorities and staff judge advocates not entertain agreements of this nature in the future.”
  • See United States v. Profitt , 1997 CCA LEXIS 117(A.F. Ct. Crim. App. Apr. 4, 1997) (unpub.) (term “testify without a grant of immunity” should be interpreted with common sense, which dictates that the convening authority was requiring the accused testify in future trials related to the offenses in which he was involved). The court held the PTA is valid under RCM 705 in a case involving guilty plea to false official statement and use and distribution of LSD in exchange for the accused promises to: not ask convening authority to provide funding for more than three sentencing witnesses (RCM 705 (c)(2)(E)); testify without grant of immunity against any other military members (RCM 705 (c)(2)(B)); and not raise any waivable pretrial motions. The MJ questioned accused and counsel extensively during providence and all parties agreed the term did not encompass motions of a Constitutional dimension. See also United States v. Rivera , 46 M.J. 52 (C.A.A.F. 1997), affirming
    44 M.J. 527 (A.F. Ct. Crim. App. 1996) (term which required accused to “testify in any trial related in my case without a grant of immunity” did not violate public policy, under facts of this case as accused had not yet been called to testify).
  •  United States v. Forrester , 48 M.J. 1 (C.A.A.F. 1998).Term which required the accused waive his right to “any and all defenses” did not violate RCM 705 or public policy. Accused charged with attempted housebreaking, attempted larceny, violation of a lawful general regulation, and aggravated assault. Requirement to waive all defenses was not overly broad, considering that the accused failed to raise any defense during the providence inquiry or sentencing.
  • United States v. Perlman , 44 M.J. 615 (N-M. Ct.Crim. App. 1996), 48 M.J. 353 (C.A.A.F. 1998) (sum. disp.) (affirming but expressing no opinion on whether term is lawful). Government argued that term in PTA permitted SPCMCA to execute vacation of suspension without forwarding case to GCMCA for action. Court held that although PTA does not indicate that accused wanted to waive those rights; Congressional intent was to grant accused an important procedural due process right for vacation actions and it is doubtful whether such rights are waivable. See also United States v. Smith , 46 M.J. 263 (C.A.A.F. 1997) (holding that PTA term providing for vacation proceedings and processing under Article 72 and RCM 1109 in the event of future misconduct cannot be interpreted as waiver of the GCMCA’s authority to review and take action on vacation)

United States v. Forrester

United States v. Perlman