U.S. v. Dean, 67 M.J. 224

Trial Stages: Merits: Pretrial Agreements

1. in military practice, the convening authority’s rights to withdraw are set out in RCM 705(d)(4)(B); that rule provides that a convening authority may withdraw from a pretrial agreement for the following reasons: any time before the accused begins performance of promises contained in the agreement; failure by the accused to fulfill any material promise or condition in the agreement; when inquiry by the military judge discloses a disagreement as to a material term in the agreement; and if the findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review
2. in this case, the convening authority’s right to withdraw from the pretrial agreement terminated when appellant began to perform several of the promises listed in the agreement, including entering into a stipulation of fact with the trial counsel, submitting a request to be tried by military judge alone, and waiving the personal appearance of certain witnesses; the beginning of performance was not limited to entry of a plea
3. in addition to allowing the convening authority to withdraw from a pretrial agreement at any time before the accused begins performance, RCM 705(d)(4)(B) also provides that the convening authority may withdraw when inquiry by the military judge discloses a disagreement as to a material term in the agreement
4. in this case, the parties’ disagreement about the meaning of the “begin performance” term in the pretrial agreement was not a disagreement over a material term in the agreement so as to entitle the convening authority to withdraw from the agreement under RCM 705(d)(4)(B); although the military judge held a hearing on the convening authority’s right to withdraw before appellant began to perform, at no point during the hearing or in his ruling did the military judge address whether the “begin performance” term was material to the agreement; the hearing and the military judge’s ruling focused on interpretation of the rule itself, which was a legal rather than a factual inquiry; the record in the case demonstrated that the parties’ disagreement over the “begin performance” term had nothing to do with the government’s decision to withdraw, and the trial counsel confirmed during the hearing that the only reason the government withdrew was because appellant refused to modify the stipulation of fact to include additional misconduct; accordingly, the government could not rely on the component of the rule concerning a disagreement over a material term in the agreement to justify the convening authority’s withdrawal on appeal
5. in order for the government, on appeal, to rely on the “disagreement as to a material term” component of RCM 705(d)(4)(B) to justify its withdrawal from a pretrial agreement, the record must reflect either that the government relied on that basis at trial or that the military judge made a finding to that effect
6. the convening authority did not have the right to withdraw from the pretrial agreement based on appellant’s alleged commission of crimes while under the terms of a pretrial agreement in violation of an implied obligation of good faith, where the government chose not to avail itself of the opportunity to include a misconduct provision in appellant’s pretrial agreement, leaving the convening authority without recourse to cancel the pretrial agreement on the grounds of alleged acts of new misconduct
7. a pretrial agreement does not carry with it an implied condition that the government will be bound only if the accused behaves well; however, RCM 705(c)(2)(D) allows the government to include as a condition of the pretrial agreement an express promise to conform the accused’s conduct to certain conditions of probation before action by the convening authority
8. the pretrial agreement’s requirement that the accused enter into a written stipulation of fact with the trial counsel as to the circumstances of the offenses did not require the accused to include recent acts of alleged misconduct in the stipulation, so as to permit the convening authority to withdraw from the agreement when the accused refused to modify the stipulation to include alleged acts of new misconduct; the stipulation provision in the pretrial agreement made no reference to the facts or circumstances of any misconduct other than that charged in the offenses, and the modification proposed by the government was outside the scope of the parties’ agreement; because the pretrial agreement did not include a misconduct provision authorized in RCM 705(c)(2)(D), the convening authority could not rely on alleged acts of new misconduct to justify its withdrawal

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

1. interpretation of a pretrial agreement and interpretation of provisions of the RCM are questions of law that an appellate court reviews de novo