Prohibited terms or conditions

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

(A)
Not voluntary.
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A term or condition in a pretrial agreement shall not be enforced if the accused did not freely and voluntarily agree to it.

(B)
Deprivation of certain rights.
A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge the jurisdiction of the court-martial; the right to a speedy trial; the right to complete sentencing proceedings; the complete and effective exercise of post-trial and appellate rights.

  • A term or condition in a pretrial agreement shall not be enforced if the accused did not freely and voluntarily agree to it.
  • A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: the right to counsel; the right to due process; the right to challenge jurisdiction of the court-martial; the right to speedy trial; the right to complete sentencing proceedings; the complete and effective exercise of post-trial and appellate rights.
  • United States v. Libecap , 57 M.J. 611 (C.G. Ct. Crim. App. 2002). Accused contended that the pretrial agreement, requiring him to request a bad conduct discharge at trial, was unenforceable. The appellate court concluded that RCM 705(c)(1) prohibited the provision because it deprived the accused of a complete sentencing proceeding by negating the value of putting on a defense sentencing case. Moreover, the requirement to request a bad conduct discharge improperly placed the accused in the position of either giving up a favorable pretrial agreement or forgoing a complete sentence proceeding. The provision was against public policy for similar reasons. The accused was prejudiced by the provision, even though he had not requested a bad conduct discharge at trial, because he was precluded from telling the military judge that he wanted a second chance and from arguing for a sentence that did not include a punitive discharge. Since the accused had specifically stated that the error did not affect the voluntariness of his pleas, the appellate court determined that the appropriate remedy was a rehearing on sentence.
  • b.   United States v. McLaughlin, 50 M.J. 272 (C.A.A.F. 1999). Accused offered to waive a speedy trial issue in his pretrial agreement (accused had been in pretrial confinement for 95 days). CAAF held that under the MCM this provision is unenforceable, so the military judge should have declared it impermissible, upheld the remainder of the agreement, and then ask the accused if he wished to litigate the issue. If he declined to do so, the waiver would be clearer. Nevertheless, the accused must make a prima facie showing or colorable claim for relief. Despite 95-day delay, no showing of prejudice. c.
    United States v. Benitez
    , 49 M.J. 539 (N.M. Ct. Crim. App. 1998). Accused offered to waive all non-constitutional and non-jurisdictional motions. The military judge determined there was a speedy trial issue, and that the term was proposed by the government. The accused had been in pretrial confinement for 117 days at the time of arraignment. The court held that there was a colorable showing of a viable speedy trial claim and that it was not convinced this was harmless error. Finding and sentence set aside.
  • United States v. Copley, No. 20011015(A. Ct. Crim. App. Feb. 26, 2004) (unpub.). Increase in confinement cap from 12 to 13 months due to accused’s exercise of his right to an individual military counsel which caused a delay in proceedings “inferentially implicated appellant’s right to individual military counsel,” and violated public policy. Court reassessed sentence and affirmed only 11 months confinement.
  • United States v. Tate,64 M.J. 269 (C.A.A.F. 2007).The accused, in his PTA, agreed to decline any clemency or parole offered to him for a period of twenty years. The MJ sentenced the accused to life without parole but the PTA limited the accused’s confinement to fifty years, which, but for his PTA term, would have made him eligible for clemency in five years and parole in ten years. CAAF held that a PTA term limiting the accused’s right to clemency or parole violates RCM 705(c)’s right to a complete and effective exercise of post-trial and appellate rights. Allowing such a term would improperly impede the ability of service secretaries to exercise their clemency and parole powers, “as well as ultimate control of sentence uniformity” throughout their respective service. CAAF struck the PTA’s specific term but ruled the stricken term did not impair the balance of the agreement and the plea.
    See also United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004) (any PTA provision precluding the accused from accepting clemency violates public policy, even if accused’s sentence could have included death or required a mandatory minimum of confinement for life for a premeditated murder conviction),.
  • United States v. Sunzeri, 59 M.J. 758 (N-M. Ct. Crim. App. 2004). Term, originating with accused, that prohibited accused from presenting testimony of witnesses located outside of Hawaii either in person, by telephone, letter, or affidavit, violated public policy as it impermissibly deprived the accused of a complete sentencing proceeding. By contrast, it is permissible to waive personal appearance of sentencing witnesses, so long as other methods are available for presenting that evidence to the factfinder (like telephonic testimony or stipulations of expected testimony).
  • United States v. Davis, 50 M.J. 426 (C.A.A.F. 1999). Accused offered a PTA inwhich he agreed to plead not guilty and, in exchange for a sentence limitation, to enter into a confessional stipulation and present no evidence. The stipulation admitted basically all elements of the offenses except the wrongfulness of marijuana use and the intent to defraud concerning the bad check offenses. CAAF found the provision violated the prohibition against accepting a confessional stipulation as part of a pretrial agreement promising not to raise any defense.See also United States v. Keyes , 33 M.J. 567 (N.M.C.M.R. 1991) (improper to have accused waive in pretrial agreement military judge’s disqualification after judge’s impartiality is reasonably questioned).
  • United States v. Cassity, 36 M.J. 759 (N.M.C.M.R. 1992). Accused pled guilty inexchange for a pretrial agreement which would suspend a bad-conduct discharge, provided confinement for more than four months was adjudged. Confinement adjudged was for less than four months, and convening authority did not suspend the discharge. Agreement found to be contrary to public policy and fundamentally unfair.
  • United States v. Thomas, 60 M.J. 521 (N-M. Ct. Crim. App. 2004). Where an accused’s sentence could include death and required a mandatory minimum of confinement for life for a premeditated murder conviction, any PTA provision precluding the accused from accepting clemency, if offered, violates public policy.
  • United States v. Schmelzle, No. 200400007, 2004 CCA LEXIS 148 (N-M. Ct. Crim.App. July 14, 2004) (unpub) (based on the accused’s eligibility for retirement, a provision requiring the accused to not request transfer to the reserves, if a punitive discharge was not adjudged, violated public policy).
  • United States v. Conklan, 41 M.J. 800 (A. Ct. Crim. App. 1995). Pretrial agreement in which the quantum portion was increased if the accused raised claims of de facto immunity encumbered the accused’s due process right to challenge the jurisdiction of the court-martial. The litigation of non-frivolous claims of lack of jurisdiction and immunity are not the proper subjects for plea bargaining.
  • United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).Accused pled guilty pursuant to a pretrial agreement agreeing to “waive any waiveable [sic] motions.”1 At trial, military judge asked the defense what motions were waived by this provision; defense counsel stated the only contemplated motions were for a continuance, suppression of evidence, change of venue, and entrapment (and did not mention multiplicity or unreasonable multiplication of charges). On appeal (and for the first time), the accused argued multiplicity or, alternatively, unreasonable multiplication of charges. The CAAF found the accused waived those issues in the pretrial agreement. The court noted: “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” When an issue is merely forfeited, appellate courts will review for plain error; if an accused waives a right at trial, it is “extinguished” and will not be reviewed on appeal. In this case, the accused knowingly waived all waivable motions, which included multiplicity and unreasonable multiplication of charges. The CAAF held it was not relevant that the defense did not contemplate these specific motions at trial. 1United States v. Gladue, 65 M.J. 903, 904 n.2 (A.F. Ct. Crim. App. 2008) (“It is well established that this provision does not per se violate either Rule for Courts-Martial 705 or public policy.”),aff’d, 67 M.J. 311 (C.A.A.F. 2009). a. Despite the CAAF’s decision in Gladue. 

Deprivation of certain rights.

non-jurisdictional motions