

   
   
   
   U.S. v. McFadyen



UNITED STATES, Appellee
v.
Ross A. MCFADYEN, Senior Airman
U. S. Air Force, Appellant
 
No. 99-0129/AF
Crim. App. No. 32878
 
United States Court of Appeals for the Armed
Forces
Argued June 3, 1999
Decided August 16, 1999
EFFRON, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ., joined.

Counsel
For Appellant: Captain Jeffrey
B. Miller, USAFR (argued); Lieutenant Colonel Ray T. Blank, Jr.
and Major Carol L. Hubbard (on brief); Colonel Douglas H. Kohrt
and Lieutenant Colonel Jeanne M. Rueth.
For Appellee: Captain Tony
R. Roberts (argued); Lieutenant Colonel Anthony P. Dattilo and
Major
Ronald A. Rodgers (on brief).
Military Judge: William M. Burd
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.


Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant, in accordance with his pleas,
of wrongfully using cocaine on divers occasions between October 2, 1996,
and February 2, 1997, in violation of Article 112a, Uniform Code of Military
Justice, 10 USC § 912a. He was sentenced to a bad-conduct discharge,
confinement for 102 days, and reduction to E-1. The convening authority
approved the sentence. The Court of Criminal Appeals affirmed in an unpublished
opinion.
This Court specified the following issue
for review:



WHETHER THE PRETRIAL AGREEMENT PURPORTING
TO REQUIRE APPELLANT TO WAIVE HIS RIGHT TO CHALLENGE HIS PRETRIAL TREATMENT
IN VIOLATION OF ARTICLE 13 AS A CONDITION TO A PRETRIAL AGREEMENT VIOLATES
PUBLIC POLICY. SEE UNITED STATES v. FORESTER, 48 MJ
1 (1998); UNITED STATES v. RIVERA, 46 MJ 52 (1997) ; SEE
ALSO united states V. combs, 47 MJ 330 (1997).



I. FACTS
After a pretrial confinement hearing, appellant
was ordered into confinement pending trial. The pretrial confinement reviewing
officer gave the following reasons for his decision:

a. It is reasonable to assume that SrA McFadyen
will revert to the use of cocaine without 24-hour monitoring.
b. Lesser forms of restraint are inadequate.
Capt Prince testified that the 313th TRS does not have the manpower to
conduct a 24-hour monitoring of SrA McFadyen.

See RCM 305(h)(2)(B), Manual for Courts-Martial,
United States (1998 ed.). On February 7, 1997, appellant was confined
at the brig at Naval Air Station (NAS), Pensacola. After complaining to
his attorney about his treatment, appellant was transferred to the confinement
facility at Dyess Air Force Base on April 11, 1997. On May 20, 1997,
appellant entered into a pretrial agreement, which included an agreement
by appellant to waive his "right to present a motion for additional pretrial
confinement credit for alleged unlawful punishment inflicted on [him] while
confined at the Pensacola NAS Brig." At trial, appellant pleaded guilty
pursuant to his pretrial agreement. During sentencing, appellant testified
in an unsworn statement, much of which related his allegations of mistreatment
at the Pensacola brig. Trial counsel objected on the grounds that appellant
was "getting off on all sorts of tangents and hearsay and bringing in all
sorts of stuff."
Defense counsel responded that the court needed
to consider appellant's treatment "in its totality to determine whether
the treatment he has already received in the last 102 days has had the
punishment and deterrent effect of a suitable sentence, in determining
what other punishment, if any, is suitable to adjudge in this court-martial."
The military judge agreed and allowed appellant to complete his statement.
Appellant's sentence included 102 days confinement, the amount
of time he had already served.
In this Court, appellant alleges several instances
of mistreatment during his confinement in the brig at NAS Pensacola. Among
these are that he was stripped of rank, that he was prevented from seeing
his attorney, and that telephone communications he had with his attorney
were monitored. Appellant asserts that his treatment at NAS Pensacola amounted
to pretrial punishment. He now contends that his pretrial agreement waiving
his right to present a motion for additional sentence credit was improper
on the grounds that waiver of the right to be free of pretrial punishment
is contrary to public policy.

II. DISCUSSION
Article 13, UCMJ, 10 USC § 813, provides:



No person, while being held for trial, may
be subjected to punishment or penalty other than arrest or confinement
upon the charges pending against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the circumstances required to
insure his presence, but he may be subjected to minor punishment during
that period for infractions of discipline.



This Court is not called upon by the specified
issue to resolve the question of whether appellant's treatment at NAS Pensacola
amounted to pretrial punishment. Rather, the question before this Court
is whether public policy considerations prohibit the waiver of this claim
in a pretrial agreement.
RCM 705(d)(1) permits negotiation of a pretrial
agreement and allows either party to propose "any term or condition not
prohibited by law or public policy." RCM 705(c)(1)(B) states:



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 complete sentencing proceedings; the complete
and effective exercise of post-trial and appellate rights.



RCM 705(c)(1)(B) does not specifically prohibit
an accused from waiving his right to make a motion for sentencing credit
because of unlawful pretrial punishment.
This Court has held that an accused may offer
to waive several significant rights as part of a pretrial agreement. See
United States v. Rivera, 46 MJ 52 (1997) (accused may waive evidentiary
objections); United States v. Weasler, 43 MJ 15, 19 (1995) (where
unlawful command influence in the preferral of charges was alleged,
it
was permissible for the accused to offer to waive unlawful command influence
in a pretrial agreement); United States v. Burnell, 40 MJ 175 (CMA
1994) (waiver of trial by court-martial composed of members);
United
States v. Gansemer, 38 MJ 340 (CMA 1993) (waiver of administrative
board is permissible). There is nothing sufficiently different about the
right to be free from unlawful pretrial punishment that persuades us to
reach the conclusion that it cannot be waived.
We are concerned that any Article 13 waiver
be executed with full knowledge of the implications of the waiver. See
United States v. Combs, 47 MJ 330, 334 (1997) (no waiver of Article
13 rights where appellant's "legal status between trials was so unique
that neither the Government nor appellant were fully aware of his legal
rights."). Therefore, for all cases tried on or after 90 days fromthe
date of this opinion, where a military judge is faced with a pretrial agreement
that contains an Article 13 waiver, the judge should inquire into
the circumstances of the pretrial confinement and the voluntariness
of the waiver, and ensure that the accused understands the remedy to which
he would be entitled if he made a successful motion.
Even if we were to apply this rule retroactively
to the case at bar, it would make no difference to the outcome because
appellant was not prejudiced by the absence of a formal inquiry. The judge
conducted an appropriate inquiry into the voluntariness of the pretrial
agreement. Appellant does not contest the voluntariness of the waiver.
Moreover, during sentencing, the military judge allowed appellant
to fully describe the circumstances of his confinement at the brig at NAS
Pensacola. In awarding a sentence to confinement, the judge was able, if
he wished, to take into account the nature of appellant's pretrial confinement
in determining the amount of confinement appropriate as a punishment for
his offenses. Under these circumstances, we see no reason why appellant
should be prevented from waiving his Article 13 rights.

III. CONCLUSION
The decision of the United States Air Force
Court of Criminal Appeals is affirmed.

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