U.S. v. McCrimmon, 60 M.J. 145

First Principles: Constitutional Matters: Generally

1. an accused does not have a constitutional right to plead guilty; as the Constitution guarantees only a right to plead not guilty, an accused has generally only a right to offer a plea of guilty, and may not even do that for an offense for which the death penalty may be adjudged

Core Criminal Law Subjects: Crimes: Article 134 -- Bribery and Graft Pre-2019 offenses

1. at common law the offense of bribery was the giving of any valuable consideration or benefit to the holder of a public office, or to a person performing a public duty, or the acceptance thereof by such person, with the corrupt intention that he be influenced thereby in the discharge of his legal duty; simply stated, bribery is the corrupt payment or receipt of a private price for official action; the focus of the offense is to punish public corruption, and both the reciprocal acts of giving and receiving the bribe are punishable
2. (bribery is not specifically enumerated in the UCMJ as a criminal offense, but is punishable under Article 134, UCMJ; from the language of the MCM, it is clear that bribery is employed as a generic term to cover two different offenses: (1) giving or offering a bribe, and (2) receiving or soliciting a bribe); two important facets of this offense are that both the giving and receiving of a bribe are equally punishable and that a specific corrupt intent to influence an official action is required)
3. the MCM states the specific intent required to prove bribery by the bribee is the intent to have the accused’s decision or action influenced with respect to a certain matter; the plain words in the MCM require that the bribee act with the intent to have the bribe impact on and actually influence the decision or actions of the bribee; this Court has long recognized the necessity of the intent element to establish the offense of bribery -- that the bribee must receive the money with intent to influence his official action
4. in graft, an intent improperly to influence official action need not be alleged or proved as it must be in bribery; graft involves compensation for services performed in an official matter when no compensation is due; graft contemplates personal advantage or gain in a dishonest transaction in relation to public duties; graft is a lesser included offense of bribery
5. for an accused to be guilty of bribery, the record of trial must establish that he had the specific intent to have his decision or action influenced with respect to a certain official matter
6. prosecution for both bribery and a larceny by falsely representing what the bribee intends to do may be problematic when the two offenses are rooted in mutually inconsistent findings

Core Criminal Law Subjects: Evidence: Uncharged Misconduct

1. assuming no overreaching by the government, evidence of uncharged misconduct, otherwise inadmissible evidence, may be presented to the court by stipulation and may be considered by the court

Trial Stages: Merits: Guilty Pleas

1. before accepting a plea of guilty, the military judge must conduct a thorough inquiry and determine that the accused understands his plea, it is entered voluntarily, and the accused is in fact guilty; the factual predicate is sufficiently established if the actual circumstances as revealed by the accused himself objectively support the plea; a court shall not accept a plea of guilty where an accused sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently; inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected
2. the accused’s guilty pleas to bribery were provident where his statements on the record established that he asked for, and often actually received, money from trainees with the intent that the payments would influence his decision to insure they did not receive Article 15 punishment; the fact that he knew that the first sergeant was bluffing when the first sergeant threatened to impose NJP on the trainees was not dispositive because it was the accused’s intent that was at issue, and the accused had the power to recommend that NJP be imposed; where the military judge established the accused’s pattern of intent to influence his decision and actions regarding several different servicemembers in different situations, it was not necessary that the military judge repeatedly inquire about the accused’s intent with additional questions; because the providence inquiry established the accused’s specific intent, his offense was bribery and not the lesser included offense of graft; thus, there was no substantial basis in law or fact for overturning the guilty pleas

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. this Court will not set aside a guilty plea on appeal unless there is a substantial basis in law and fact for questioning the plea; appreciating the tendency of persons accused of criminal offenses to rationalize their behavior, this Court permits the military judge in a borderline case to give weight to the defense evaluation of the evidence