Subject to such limitations as the Secretary concerned may prescribe, an accused and the convening authority or the accused and special trial counsel, as applicable, may enter into a plea agreement in accordance with this rule. In cases over which special trial counsel has exercised authority and has not deferred, an agreement may only be entered into between special trial counsel and the accused; however, any such agreement may bind convening authorities and other commanders subject to such limitations as prescribed by the Secretary concerned.

The authority of convening authorities or special trial counsel to refer cases to trial and approve plea agreements extends only to trials by court-martial. To ensure that such actions do not preclude appropriate action by federal civilian authorities in cases likely to be prosecuted in the United States District Courts, convening authorities or special trial counsel, when applicable, shall ensure that appropriate consultation under the “Memorandum of Understanding Between the Departments of Justice and Defense Relating to the Investigation and Prosecution of Crimes Over Which the Two Departments Have Concurrent Jurisdiction” or its Coast Guard equivalent has taken place prior to trial by court-martial or approval of a plea agreement in cases where such consultation is required. See Appendix 3 and Appendix 4. Convening authorities and special trial counsel should also review and consider Appendix 2.1 (Disposition Guidance) for guidance concerning the disposition of charges and specifications through plea agreements.

A plea agreement may include:

A promise by the accused to plead guilty to, or to enter a confessional stipulation as to, one or more charges and specifications, and to fulfill such additional terms or conditions that may be included in the agreement and that are not prohibited under this rule; and

A promise by the convening authority or special trial counsel, as applicable, to do one or more of the following:

Refer the charges to a certain type of court-martial;

Refer a capital offense as noncapital;

Withdraw one or more charges or specifications from the court-martial;

A convening authority or special trial counsel may withdraw certain specifications and/or charges from a court-martial and dismiss them if the accused fulfills the accused’s promises in the agreement. Except when jeopardy has attached ( see R.C.M. 907(b)(2)(C)), such withdrawal and dismissal does not bar later reinstitution of the charges by special trial counsel or the same or different convening authority. A judicial determination that the accused breached the plea agreement is not required prior to reinstitution of withdrawn or dismissed specifications and/or charges. If the defense moves to dismiss the reinstituted specifications and/or charges on the grounds that the government remains bound by the terms of the plea agreement, the government will be required to prove, by a preponderance of the evidence that the accused has breached the terms of the plea agreement. If the agreement is intended to grant immunity to an accused, see R.C.M. 704.

Have trial counsel present no evidence as to one or more specifications or portions thereof; and

Limit the sentence that may be adjudged by the court-martial for one or more charges and specifications in accordance with R.C.M. 705(d); or

A promise by either the convening authority or special trial counsel to take other action within their authority.

A term or condition in a plea agreement shall not be enforced if the accused did not freely and voluntarily agree to it.

A term or condition in a plea 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 presentencing proceedings; the complete and effective exercise of post-trial and appellate rights.

A plea agreement provision which prohibits the accused from making certain pretrial motions, such as for issues that are not waivable ( see R.C.M. 905-907), is improper.

R.C.M. 705(c)(1)(A) and (1)(B) do not prohibit the convening authority, special trial counsel, or the accused from proposing the following additional conditions:

A promise to enter into a stipulation of fact concerning offenses to which a plea of guilty or to which a confessional stipulation will be entered;

A promise to testify as a witness in the trial of another person;

A promise to provide restitution;

A promise to conform the accused’s conduct to certain conditions of probation before action by the convening authority in a summary court-martial or before entry of judgment in a general or special court-martial as well as during any period of suspension of the sentence, provided that the requirements of R.C.M. 1108 must be complied with before an alleged violation of such terms may relieve the Government of the obligation to fulfill the agreement;

A promise to waive procedural requirements such as the Article 32 preliminary hearing, the right to trial by a court-martial composed of members, the right to request trial by military judge alone, the right to elect sentencing by members if applicable, or the opportunity to obtain the personal appearance of witnesses at presentencing proceedings;

A plea agreement that includes a waiver of the accused’s right to request trial by a court-martial composed of members necessarily waives the right to elect sentencing by members. See R.C.M. 1002. A plea agreement that permits the accused to request trial by a court-martial composed of members necessarily preserves the accused’s right to elect sentencing by military judge alone or members. In such cases, the accused will be sentenced for all offenses for which the accused was found guilty in accordance with the accused’s election. See R.C.M. 1002.

When applicable, a provision requiring that the sentences to confinement adjudged by the military judge for two or more charges or specifications be served concurrently or consecutively. Such an agreement shall identify the charges or specifications that will be served concurrently or consecutively; and

A provision requiring the sentences to confinement be served concurrently or consecutively is applicable only to plea agreements in which the military judge determines the sentence under R.C.M. 1002(d)(2).

Any other term or condition that is not contrary to or inconsistent with this rule.

Subject to such limitations as the Secretary concerned may prescribe pursuant to R.C.M. 705(a), a plea agreement that limits the sentence that can be imposed by the court-martial for one or more charges and specifications may contain:

a limitation on the maximum punishment that can be imposed by the court-martial;

a limitation on the minimum punishment that can be imposed by the court-martial;

limitations on the maximum and minimum punishments that can be imposed by the court-martial; or,

a specified sentence or portion of a sentence that shall be imposed by the court-martial.

G eneral or special courts-martial.

In a plea agreement in which the accused waives the right to elect sentencing by members and agrees to a limitation on the confinement or the amount of a fine that may be imposed by the military judge for more than one charge or specification under paragraph (1), the agreement shall include separate limitations, as applicable, for each charge or specification.

In a plea agreement in which the convening authority and accused agree to sentencing by members, limitations on the sentence that may be adjudged shall be expressed as limitations on the total punishment that may be imposed by the members.

A plea agreement involving limitations on the sentence that may be adjudged shall be expressed as limitations on the total punishment that may be imposed by the court-martial.

A plea agreement may include a limitation as to other authorized punishments as set forth in R.C.M. 1003.

A sentence limitation under paragraph (1) may not include the possibility of a sentence of death.

A sentence limitation under paragraph (1) may not provide for a sentence less than the applicable mandatory minimum sentence for an offense referred to in Article 56(b)(2), except as follows:

If the accused pleads guilty to the offense, the agreement may have the effect of reducing a mandatory dishonorable discharge to a bad-conduct discharge.

Upon recommendation of trial counsel, in exchange for substantial assistance by the accused in the investigation or prosecution of another person who has committed an offense, a plea agreement may provide for a sentence that is less than the mandatory minimum sentence for the offense charged.

Plea agreement negotiations may be initiated by the accused, defense counsel, trial counsel, the staff judge advocate, convening authority, or their duly authorized representatives. Either the defense or the Government may propose any term or condition not prohibited by law or public policy. Government representatives shall negotiate with defense counsel unless the accused has waived the right to counsel.

After negotiation, if any, under paragraph (1), if the accused elects to propose a plea agreement, the defense shall submit a written offer. All terms, conditions, and promises between the parties shall be written. The proposed agreement shall be signed by the accused and defense counsel, if any.

The plea agreement ordinarily contains an offer to plead guilty and a description of the offenses to which the offer extends. It must also contain a complete and accurate statement of any other agreed terms or conditions. For example, if the convening authority or special trial counsel agrees to withdraw certain specifications, or if the accused agrees to waive the right to an Article 32 preliminary hearing or the right to elect sentencing by members, this should be stated. The written agreement should contain a statement by the accused that the accused enters it freely and voluntarily and may contain a statement that the accused has been advised of certain rights in connection with the agreement.

The convening authority or special trial counsel, as applicable, may either accept or reject an offer of the accused to enter into a plea agreement or may propose by counteroffer any terms or conditions not prohibited by law or public policy. The decision whether to accept or reject an offer is within the sole discretion of the convening authority or special trial counsel, as applicable. When the convening authority has accepted a plea agreement, the agreement shall be signed by the convening authority or by a person, such as the staff judge advocate or trial counsel, who has been authorized by the convening authority to sign. When special trial counsel has accepted a plea agreement, the agreement shall be signed by special trial counsel.

The convening authority should consult with the staff judge advocate or trial counsel and should review the applicable sections of Appendix 2.1 (Non-binding disposition guidance) before acting on an offer to enter into a plea agreement.

Prior to the convening authority or special trial counsel, as applicable, accepting a plea agreement, the convening authority or special trial counsel shall make the convening authority’s or special trial counsel’s best efforts to provide the victim an opportunity to submit views concerning the plea agreement terms and conditions in accordance with regulations prescribed by the Secretary concerned. The convening authority or special trial counsel, as applicable, shall consider any such views provided prior to accepting a plea agreement. For purposes of this rule, a “victim” is an individual who is alleged to have suffered direct physical, emotional, or pecuniary harm as a result of the matters set forth in a charge or specification under consideration and is named in one of the specifications under consideration.

The accused may withdraw from a plea agreement at any time prior to the sentence being announced. If the accused elects to withdraw from the plea agreement after the acceptance of the plea agreement but before the sentence is announced, the military judge shall permit the accused to withdraw only for good cause shown. Additionally, the accused may withdraw a plea of guilty or a confessional stipulation entered pursuant to a plea agreement only as provided in R.C.M. 910(h) or 811(d).

The convening authority or special trial counsel, as applicable, may withdraw from a plea agreement at any time:

before substantial performance by the accused of promises contained in the agreement;

upon the 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; or

if findings are set aside because a plea of guilty entered pursuant to the agreement is held improvident on appellate review.

No court-martial member shall be informed of the existence of a plea agreement, except upon request of the accused or when the military judge finds that disclosure of the existence of the plea agreement is manifestly necessary in the interest of justice because of circumstances arising during the proceeding. In addition, except as provided in Mil. R. Evid. 410, the fact that an accused offered to enter into a plea agreement, and any statements made by an accused in connection therewith, whether during negotiations or during a providence inquiry, shall not be otherwise disclosed to the members.

See R.C.M. 1002 and 1005.