U.S. v. Mitchell, 51 M.J. 490

Trial Stages: Merits: Pretrial Agreements

1. a probationer who cannot comply with a pretrial agreement through his own fault is not permitted to use indigence to excuse his failure to comply with the agreement; good faith remains the linchpin of the analysis
2. the Due Process Clause does not protect an accused who offers to make full restitution, knowing full well that he cannot; nor does it protect an accused who fails to take timely and reasonable steps to safeguard his assets so that he can make restitution as promised

Trial Stages: Initial Review: Revocation of Suspension

1. where a portion of the approved sentence is suspended based upon a promise to make restitution in a pretrial agreement, a probationer who cannot comply with the pretrial agreement through his own fault is not permitted to use indigence to excuse his failure to comply with the agreement and defend against revocation of the suspension; good faith remains the linchpin of the analysis
2. the Due Process Clause does not protect an accused against revocation of a suspension when that accused offers to make full restitution, knowing full well that he cannot; nor does it protect an accused who fails to take timely and reasonable steps to safeguard his assets so that he can make restitution as promised
3. convening authority was justified in concluding that appellant either bargained in bad faith by misrepresenting his net worth, or that appellant failed to take reasonable steps to safeguard his assets and convert them to cash after he was convicted and sentenced; either is indicative of bad faith and supports vacation of appellant’s suspended sentence