                          UNITED STATES, Appellee

                                          v.

          Erik G. VASQUEZ, Gunner’s Mate (Guns) Seaman
                      U.S. Navy, Appellant


                                   No. 00-0224


                           Crim. App. No. 99-0051



       United States Court of Appeals for the Armed Forces

                          Argued October 11, 2000

                         Decided January 12, 2001

     GIERKE, J., delivered the opinion of the Court, in which
    SULLIVAN, EFFRON, and BAKER, JJ., joined. CRAWFORD, C.J.,
   filed an opinion concurring in part and dissenting in part.

                                      Counsel
For Appellant: Major Charles C. Hale, USMC (argued); Lieutenant
   Commander L. J. Lofton, JAGC, USN (on brief).

For Appellee: Major Edward C. Durant, USMC (argued); Colonel
   Kevin M. Sandkuhler, USMC, Lieutenant Commander Phillip
   Sundel, JAGC, USN, and Lieutenant Danette L. Walker, JAGC,
   USNR (on brief).

Military Judge:     Thomas P. Tielens


          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Vasquez, No. 00-0224/NA


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a special court-martial

convicted appellant, pursuant to his pleas, of stealing

merchandise worth $876.00 from the Navy Exchange, in violation of

Article 121, Uniform Code of Military Justice, 10 USC § 921.          The

military judge sentenced appellant to a bad-conduct discharge,

confinement for 75 days, forfeiture of $600.00 pay per month for

3 months, and reduction to the lowest enlisted grade.        In

accordance with a pretrial agreement, the convening authority

disapproved all confinement in excess of time served but approved

the remainder of the sentence.        The Court of Criminal Appeals

affirmed the findings and approved sentence.        52 MJ 597 (1999).

      This Court granted review of the following issue:

      WHETHER THE LOWER COURT ERRED IN FINDING THAT THE MILITARY
      JUDGE DID NOT VIOLATE MIL. R. EVID. 410 BY ADMITTING (AS
      AGGRAVATION UNDER RCM 1001) APPELLANT’S ADMISSION OF GUILT
      IN AN UNRELATED REQUEST FOR AN OTHER THAN HONORABLE
      DISCHARGE.

For the reasons set out below, we reverse the decision of the

Court of Criminal Appeals.

                            Factual Background
      During the plea inquiry, appellant told the military judge

that he was asked by another sailor to be the lookout while the

other sailor stole merchandise from the Navy Exchange.        The plan

was to return the stolen property to the Navy Exchange for a

refund and split the money.       When they were unable to obtain a

refund without a receipt, they decided to “go shopping” again.

Appellant agreed to act as lookout again while his co-actor took

more items, intending to exit the store without paying for them.




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As appellant and his co-actor exited the store, they were

apprehended.

      After appellant’s pleas of guilty were accepted by the

military judge, the prosecution offered evidence that appellant

had requested an administrative discharge under other than

honorable conditions in lieu of trial by court-martial for an

unauthorized absence of 212 days.          Appellant was awaiting

execution of the administrative discharge when he committed the

larceny.    Appellant’s request included an admission that he was

in fact guilty of the unauthorized absence.

      Trial counsel argued that the request for administrative

discharge was admissible as a personnel record relating to the

character of appellant’s prior service under RCM 1001, Manual for

Courts-Martial, United States (1998 ed.), and was not excluded by

Mil. R. Evid. 410, Manual, supra.          The military judge overruled a
defense objection and admitted the evidence under RCM

1001(b)(2).∗

      The defense case focused on avoiding a bad-conduct

discharge.     In an unsworn statement, appellant described his life

growing up in a poor family and a bad neighborhood.          He

remembered his grandfather’s war stories about World War II and

decided to enlist in the Navy.        He did not mention his

unauthorized absence or approved administrative discharge.          He

concluded his unsworn statement with the following:



∗
 All Manual provisions are cited to the version in effect at the
time of trial. The current version is unchanged, unless
otherwise indicated.



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            I enlisted in October of ’94, not for the college money
            or to see the world, I joined for three reasons, sir:
            To serve my country, to make something out of myself,
            and to make my grandfather proud of me. Sir, the
            bottom line, I wanted to make a man out of myself and
            not be one of the street punks that I used to see
            everyday on the street. Sir, while in the Navy I have
            been many places and done many things and met many
            people, and I loved everyday of it. From that I have
            taken life lessons that I couldn’t learn anywhere else.
            This right here, sir, will be no different. Sir, at
            this time I would like to apologize to the United
            States Navy, to you, sir, my family, and especially my
            grandfather who I have let down. I am sorry, and thank
            you very much, sir.

      In sentencing argument, trial counsel made specific

reference to appellant’s unauthorized 212-day absence and asked

the military judge to impose a sentence that included a bad-

conduct discharge.      Defense counsel emphasized appellant’s

remorse, commented on the influence of other troublemakers in the

unit on appellant, and argued that a bad-conduct discharge would

be too severe a punishment.

      The Court of Criminal Appeals upheld the military judge’s

ruling.   It held that the approved request for administrative

discharge documented appellant’s unauthorized absence “in much

the same way as a record of a prior conviction is documented by a

promulgating order or a record of nonjudicial punishment by the

completed mast report form.”        52 MJ at 599.

      The court below further held that Mil. R. Evid. 410 was not

applicable to appellant’s case.           The court reasoned that Mil. R.

Evid. 410 applies only to pending charges and that the

unauthorized absence was no longer pending after appellant’s

request for an administrative discharge was approved.          Id.




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                                 Discussion

      RCM 1001(b)(2) permits the prosecution to introduce a broad

range of documents from an accused’s personnel records.         However,

it does not provide blanket authority to introduce all

information that happens to be maintained in the accused’s

personnel records.      United States v. Ariail, 48 MJ 285, 287

(1998).

      Mil. R. Evid. 410 prohibits the admission of a guilty plea

that was later withdrawn, a plea of nolo contendere, a statement
made during a judicial inquiry into a plea of guilty or nolo

contendere, or “any statement made in the course of plea

discussions.”     Mil. R. Evid. 410 is generally taken from Fed. R.

Evid. 410, but is broader because it encompasses statements made

in connection with a request for administrative disposition in

lieu of court-martial.      Drafters’ Analysis of Mil. R. Evid. 410,

Manual, supra at A22-34.       Mil. R. Evid. 410(b) defines a

“statement made in the course of plea discussions” as including

“a statement made by the accused solely for the purpose of

requesting disposition under an authorized procedure for
administrative action in lieu of trial by court-martial.”

      In United States v. Barunas, 23 MJ 71, 75-76 (CMA 1986),

this Court held that an accused’s pretrial letter to his

commander, admitting his guilt and requesting disposition by “any

other avenues of punishment short of court-martial,” was a plea

discussion within the meaning of Mil. R. Evid. 410.       This Court

explained that “[a]n excessively formalistic or technical

approach to this rule may undermine” the policy of the rule,

which is “to encourage the flow of information during the plea-


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bargaining process.”      See also United States v. Ankeny, 30 MJ 10,

15 (CMA 1990) (defense counsel’s “preliminary overtures” to an

assistant staff judge advocate during a social event encompassed

by Mil. R. Evid. 410); United States v. Brabant, 29 MJ 259, 264

(CMA 1989) (accused’s question to commander, “What can I do to

make this right?” was a plea discussion encompassed by Mil. R.

Evid. 410).

      In light of this Court’s long-standing precedent for

avoiding an “excessively formalistic or technical” application of

Mil. R. Evid. 410 in favor of a broad application of the rule, we

must respectfully reject the rationale of the court below for

finding the rule inapplicable.        Mil. R. Evid. 410 does not

require that protected plea bargaining statements be related to

offenses “pending” before the court-martial at which they are

offered.    Such a construction of the rule would remove its

protection from any accused who bargained for withdrawal or

dismissal of certain charges and specifications.

      Furthermore, appellant’s charges arising from the

unauthorized absence are still “pending” because appellant has

not yet received the quid pro quo for his admission of guilt: an
executed discharge.      Government appellate counsel acknowledged in

oral argument that the convening authority was not empowered to

execute the requested discharge and that the request for

discharge was still pending approval at the Navy Bureau of

Personnel at the time it was offered in evidence.        Subject to

limitations of the Due Process Clause and Articles 10, 33, and

43, UCMJ, 10 USC §§ 810, 833, and 843, respectively, the

Government remains free to prosecute appellant for the


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unauthorized absence at any time until its jurisdiction is

terminated by appellant’s discharge.

      The final question is whether appellant was prejudiced by

the violation of Mil. R. Evid. 410.          See Barunas, 23 MJ at 76.

Appellant had no previous convictions or nonjudicial punishment.

On its face, the unexplained 212-day absence was a serious

offense.    Appellant expressed remorse for the larceny, and his

counsel argued that a bad-conduct discharge was too severe.         We

cannot say “with fair assurance” that evidence of a 212-day

unauthorized absence did not have a “substantial influence” on

the sentence imposed by the military judge.         Kotteakos v. United
States, 328 U.S. 750, 765 (1946). Furthermore, under the criteria

for sentence reassessment prescribed in United States v. Sales,

22 MJ 305, 307-09 (CMA 1986), we are convinced that it cannot be

reliably determined that the military judge would have imposed a

bad-conduct discharge in the absence of evidence of the 212-day

unauthorized absence. Accordingly, we cannot give the court below

its usual broad discretion to reassess and affirm the bad-conduct

discharge, because we would be unable to affirm that decision in
light of Sales.



                                  Decision

      The decision of the United States Navy-Marine Corps Court of

Criminal Appeals is affirmed as to findings but reversed as to

sentence.    The sentence is set aside.       The record of trial is

returned to the Judge Advocate General of the Navy for remand to

the Court of Criminal Appeals.        That court may either reassess




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and affirm a sentence that does not include a bad-conduct

discharge, or it may order a sentence rehearing.




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     CRAWFORD, Chief Judge (concurring in part and

dissenting in part):

     I fully join the majority’s rationale in holding that

Mil.R.Evid. 410, Manual for Courts-Martial, United States

(1998 ed.), was applicable to appellant’s case and that the

military judge’s error in admitting the challenged evidence

had a “substantial influence” on appellant’s sentence.

     I respectfully part company with the majority over

their restrictive remand of this case to the Court of

Criminal Appeals for sentence reassessment.   In taking this

action, the majority has abridged the lower court’s

sentence reassessment discretion and expertise

unnecessarily, substituted its own judgement of sentence

appropriateness, and virtually dictated a sentence

rehearing, all in derogation of Congressional and

Presidential mandates, as well as 15 years of precedent

from this Court.   See Art. 66(c), UCMJ, 10 USC § 866(c);

RCM 1203, Manual, supra; United States v. Suzuki, 20 MJ

248, 249 (CMA 1985); United States v. Sales, 22 MJ 305 (CMA

1986); United States v. Reed, 33 MJ 98, 99 (CMA 1991);

United States v. Cook, 48 MJ 434, 438 (1998); United States

v. Eversole, 53 MJ 132, 138 (2000)(Crawford, C.J.,

dissenting); Id. at 140 (Gierke, J., dissenting).
United States v. Vazquez, No. 00-0224/NA


     This Court’s responsibility is to determine, as a

matter of law, whether a Court of Criminal Appeals abuses

its discretion when reassessing and determining that a

sentence imposed at trial, minus the prejudicial error,

would have been of a certain magnitude.    Art. 67(c), UCMJ,

10 USC § 867(c); see United States v. Taylor, 51 MJ 390,

391 (1999); United States v. Jones, 39 MJ 315, 317 (1994);

Sales, 22 MJ at 308.    Today we put the proverbial cart

before the horse by circumscribing the Court of Criminal

Appeals’ statutory function.

     Finally, the restrictive mandate virtually guarantees

a sentence rehearing.    Instead of erroneously introducing

appellant’s discharge request at trial, the Government

could have introduced, during sentencing, properly

maintained, complete, reliable personnel forms reflecting

appellant’s absence from and return to duty after 212 days.

See RCM 1001(b)(2); United States v. Ariail, 48 MJ 285

(1998); see generally United States v. Abel, 469 U.S. 45,

56 (1984).   Such documents, even though incorporated in the

allied papers of the record of trial, cannot be considered

by the Court of Criminal Appeals when performing its

sentence reassessment.    See United States v. Peoples, 29 MJ

426, 428 (CMA 1990).    Conversely, they can be introduced

during a sentence rehearing.


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     By its action today, the majority says that the Court

of Criminal Appeals is incapable of determining the

ultimate affect (albeit “substantial”) a 212 day

unauthorized absence had on the sentence.   Accordingly, the

Court of Criminal Appeals, with its discretion removed,

will have no option but to restart the sentencing process.




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