                      UNITED STATES, Appellee

                                  v.

                 Jeremy K. EDWARDS, Airman Basic
                    U.S. Air Force, Appellant

                           No. 02-0229/AF
                     Crim. App. No. ACM S29885

     United States Court of Appeals for the Armed Forces

                      Argued October 15, 2002

                     Decided January 28, 2003

   ERDMANN, J., delivered the opinion of the Court, in which
   CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.

                               Counsel

   For Appellant: Major Patricia A. McHugh (argued); Colonel
      Beverly B. Knott and Major Jeffrey A. Vires (on brief).

   For Appellee: Lieutenant Colonel Lance B. Sigmon (argued);
      Colonel Anthony P. Dattilo (on brief); Lieutenant
      Colonel LeEllen Coacher, Major Mitchel Neurock, and
      Major Bryan T. Wheeler.

   Military Judge:     James L. Flanary




THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Edwards, 02-0229/AF


     Judge ERDMANN delivered the opinion of the Court.

     A special court-martial composed of a military judge

sitting alone convicted Appellant, pursuant to his pleas, of one

specification of wrongful use of lysergic acid diethylamide

(LSD) and one specification of wrongful use of marijuana, both

in violation of Article 112a, Uniform Code of Military Justice

[hereinafter UCMJ], 10 U.S.C. § 912a (2002).   Appellant was

sentenced to a bad-conduct discharge and confinement for four

months.   The convening authority approved the sentence as

adjudged, and the Air Force Court of Criminal Appeals (CCA)

affirmed the findings and sentence.



     On Appellant’s petition, we granted review of the following
issue:


     WHETHER IT IS AGAINST PUBLIC POLICY TO REQUIRE AN ACCUSED
     TO WAIVE HIS RIGHT TO ALERT THE COURT, IN AN UNSWORN
     STATEMENT, OF THE VIOLATIONS OF HIS RIGHTS TO HAVE COUNSEL
     PRESENT WHEN HE WAS INTERROGATED BY MILITARY CRIMINAL
     INVESTIGATORS IN ORDER TO BE PERMITTED TO OBTAIN A PRETRIAL
     AGREEMENT.


                               FACTS


   Appellant entered the Air Force in February 2000 and was

assigned to the 335th Training Squadron, Keesler Air Force Base,

Mississippi, at all times relevant to the charge and

specifications in this case.   On May 20, 2000, Appellant and two



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United States v. Edwards, 02-0229/AF


of his fellow classmates, Airman Basic (AB) Choyss Lowery and

Airman Adam Saunders, took a trip to New Orleans to hang out and

have some fun.   Once in New Orleans they walked down Bourbon

Street, stopping in bars and trying to meet women.    They

eventually entered into conversation with two women, one of whom

had purple hair.   Following some conversation, the purple-haired

woman invited the airmen to her house.



   When they arrived at her house, Appellant noticed marijuana

sitting on a table.   He asked the woman if he could have some

marijuana, and she said that he could.    Appellant then rolled a

marijuana cigarette, lit it and smoked it.    The woman and AB

Lowery shared the marijuana cigarette with Appellant.    The woman

later offered the airmen some “acid.”    She handed an Altoid

breath mint that contained LSD to Appellant and AB Lowery.      Both

Appellant and AB Lowery swallowed one breath mint containing the

LSD.



   The Air Force Office of Special Investigations (AFOSI)

conducted an investigation, and Appellant was subsequently

charged.   Appellant was represented by the Area Defense Counsel

(ADC) at Keesler Air Force Base who provided notice of the

representation to the AFOSI and informed them that all requests

for questioning must go through him.    After this notice the


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United States v. Edwards, 02-0229/AF


AFOSI directly contacted Appellant and, unbeknown to his defense

counsel, conducted an interrogation.1



    During the pretrial stages of the case, the parties discussed

terms for a pretrial agreement in which appellant would plead

guilty in exchange for a four-month cap on confinement.             The

defense counsel later submitted the pretrial notice required by

Uniform Rules of Practice Before Air Force Courts-Martial Rule

3.1(D) (2002) [hereinafter Uniform Rules].2          This notice included

a summary of Appellant’s intent to raise in his unsworn

statement alleged constitutional violations that occurred as a

result of the AFOSI interrogation.



    After the Government received this notice, it informed the

defense counsel that it would not support the pretrial agreement

if Appellant intended to discuss any alleged violation of his

constitutional rights.      Following consultation with his defense

counsel, Appellant agreed to accept the new terms of the

pretrial agreement.




1
  It is not contested that the AFOSI questioning centered on the conduct of
the other two airmen and did not elicit or result in any evidence that could
have been used against Appellant.
2
  This rule requires the defense to provide notice of any matter arguably
inadmissible, irrelevant or immaterial that may be included in the accused’s
unsworn statement.



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United States v. Edwards, 02-0229/AF


      The language of the pretrial agreement provides, in

pertinent part, as follows:

      h. Agree to waive any motion regarding my constitutional
      rights to counsel and my right to remain silent during
      AFOSI interviews and other questioning conducted by the
      AFOSI that occurred after I was represented by counsel. In
      addition, I agree not to discuss any of the circumstances
      surrounding my interrogation or questioning during my care
      [sic] inquiry, any sworn statement, any unsworn statement
      during my trial. Although it was my intention to discuss
      these matters at my trial, I specifically waive my rights
      to discuss these matters to gain the benefit of this
      pretrial agreement.[3]

    The military judge recognized that this provision of the

pretrial agreement might involve public policy considerations.

As part of his inquiry into the terms of the pretrial agreement

the military judge stated: “And in order to ensure that this

does not violate public policy, I am going to inquire into that

now during this particular inquiry.”         The military judge then

launched into the following inquiry:

      MJ: And sir, also you state that originally you were
      intending to discuss these matters at trial, but you
      specifically waived the right to discuss these matters to
      gain the benefit of the pre-trial agreement. Is that
      correct?


3
  Appellant limits his appeal to whether the provision in the pretrial
agreement in which he waived his right to raise the interrogation by the
AFOSI in his unsworn statement violates public policy. The pretrial
agreement also contains language that could be construed to constitute a
waiver of appellant’s right to raise the issue in his Care inquiry. While
the language was obviously not interpreted in that manner by the parties
below, the Court notes that any provisions of a pretrial agreement that
inhibit the providence inquiry or the inquiry into the pretrial agreement
would not be appropriate. See Article 45(a), UCMJ, 10 U.S.C. § 845(a)
(2002); Rule for Courts-Martial 910(e)-(f); United States v. Green, 1 M.J.
453 (C.M.A. 1976); United States v. Care, 18 C.M.A. 535, 539-42 (1969).



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United States v. Edwards, 02-0229/AF


     ACC: Yes, sir.

     MJ: And you realize that, obviously, you have got the
     right to bring these matters to the court’s attention in
     your unsworn statement, or potentially through sworn
     statements, either one, both in the finding – well, at
     least sworn testimony in the findings aspect, if you had
     plead not guilty, and in the unsworn and sworn both in the
     sentencing aspect, should it have gone to sentnecing [sic].
     Do you realize that?

     ACC: Yes, sir.

     MJ: Okay. And you also realize that these could be
     mitigating factors for sentencing, which potentially could
     reduce the sentence that I would impose. And, had this
     gone to finding, rather than a plea of guilty, potentially
     some of the evidence could have been excluded, based upon
     these as potential violations, had the court so found that
     they were violations. Do you understand that?

     ACC: Yes, sir.

     MJ: Okay. And I know this is a lot of stuff to be asking
     you, but I want to get it clear on the record for a
     potential appellate review, and that is being fully
     cognizant and aware of this potentiality, had you succeeded
     on the motions and pled not guilty, some of the evidence
     may have been excluded, which could have potentially
     resulted in an acquittal upon you, or that some of the
     stuff that had been brought before the court’s attention
     potentially could be a mitigating factor in sentencing. Do
     you fully realize that?

     ACC: Yes, sir.

     MJ: And, with that in mind, is it still your desire to
     waive these matters and not pursue them at the trial?

     ACC: Yes, sir.


   On appeal to the CCA, Appellant argued both that his sentence

was inappropriately severe, and that the noted pretrial

agreement provision was against public policy and, therefore,


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United States v. Edwards, 02-0229/AF


should not be enforced.   The CCA found that the sentence was

appropriate and that the pretrial agreement did not violate Rule

for Courts-Martial 705 [hereinafter R.C.M.].   We subsequently

granted review.



                            DISCUSSION

     Rule for Courts-Martial 705 addresses various rules

regarding the use of pretrial agreements in court-martial

proceedings.   The provisions pertinent to this case are as

follows:


     (c) (1) Prohibited terms or conditions.
          (A) Not Voluntary. A term or condition in a pretrial
               agreement shall not be enforced if the accused
               did not freely and voluntarily agree to it.
          (B) Deprivation of certain rights. 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 a speedy trial; the right
               to complete sentencing proceedings; the complete
               and effective exercise of post-trial and
               appellate rights.
          . . . .
     (d) (3) Acceptance. The convening authority may either
     accept or reject an offer of the accused to enter into a
     pretrial 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. . . .




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United States v. Edwards, 02-0229/AF


      In the present case, Appellant does not challenge the

meaning or scope of the provision at issue, nor does he assert

that his waiver was not knowing and voluntary.   Appellant argues

only that the pretrial agreement violates public policy because

it prohibited him from discussing, in his unsworn statement, the

circumstances surrounding AFOSI’s interrogation of him.

Appellant does not argue that he was wrongly deprived of the

right to raise this issue in a motion or through other

witnesses.   He does not allege that the interrogation produced

evidence that would have been used against him at trial, nor

does he argue that his plea was involuntary.

     Therefore, we need only determine whether the challenged

provision in the pretrial agreement violated public policy.     In

turn, if the provision is not contrary to public policy or

R.C.M. 705, an accused may waive the underlying right if that

waiver is knowingly and voluntarily executed.

     To the extent that a term in a pretrial agreement violates

public policy, it will be stricken from the pretrial agreement

and not enforced.   See R.C.M. 705(c)(1)(B); United States v.

Clark, 53 M.J. 280, 283 (C.A.A.F. 2000).   Under those

circumstances, public policy prohibits the accused from waiving

the underlying right or privilege as part of the pretrial

agreement.   Consequently, when pretrial agreements are




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United States v. Edwards, 02-0229/AF


challenged based upon alleged violations of public policy, the

cases invariably discuss the issue in the context of waiver.



     Criminal defendants may knowingly and voluntarily waive

many rights and Constitutional protections.   See, e.g., Ricketts

v. Adamson, 483 U.S. 1, 10 (1987); Boykin v. Alabama, 395 U.S.

238, 243 (1969); Johnson v. Zerbst, 304 U.S. 458, 465 (1938).

Further, the U.S. Supreme Court has held that “absent some

affirmative indication of Congress’ intent to preclude waiver,

we have presumed that statutory provisions are subject to waiver

by voluntary agreement of the parties.”   United States v.

Mezzanatto, 513 U.S. 196, 201 (1995).   In United States v.

McFadyen, 51 M.J. 289 (C.A.A.F. 1999), this Court noted that an

accused may waive significant rights as part of a pretrial

agreement and held that an accused could waive his right to

challenge his pretrial treatment in a pretrial agreement.     Id.

at 290-91 (citing United States v. Rivera, 46 M.J. 52 (C.A.A.F.

1997)) (an accused may waive evidentiary objections); United

States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 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); United States v. Burnell, 40 M.J.

175 (C.M.A. 1994) (waiver of trial by court-martial composed of




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United States v. Edwards, 02-0229/AF


members); United States v. Gansemer, 38 M.J. 340 (C.M.A. 1993)

(waiver of administrative board is permissible)).



       The Court in McFadyen, however, also voiced concern that

Article 13, UCMJ, 10 U.S.C. § 813 (2002), (pretrial punishment)

waivers should only be executed with full knowledge of the

implications of the waiver and provided a procedure that

military judges should follow when faced with a pretrial

agreement containing an Article 13 waiver.           This procedure

requires the military judge to inquire into the circumstances of

the pretrial confinement and the voluntariness of the waiver,

and to ensure that the accused understands the remedy to which

he would be entitled if he made a successful motion.             Id. at

291.    The analysis of the military judge in this case was

consistent with McFadyen, adjusted to address the specific

waiver raised here.4



       Rule for Courts-Martial 705(c)(1)(B) does not prohibit an

accused from waiving his right to notify the court of the

circumstances surrounding AFOSI’s interrogation of him without

notice to his defense counsel.        While Appellant argues that the

waiver deprived him of a “complete sentencing proceeding”


4
  McFadyen was not cited by the military judge, and it is not evident from the
record he either referred to McFadyen or developed a similar analysis on his
own volition out of an abundance of caution.


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United States v. Edwards, 02-0229/AF


pursuant to R.C.M. 705(c)(1)(B), the right to make an unsworn

statement is not unlimited.   R.C.M. 1001(c)(2)(A) provides that

an unsworn statement may be made “in extenuation, in mitigation,

or to rebut matters presented by the prosecution, or for all

three purposes whether or not the accused testified prior to

findings.”   The fact that appellant was interrogated outside the

presence of counsel, even if not justified or excusable, does

not serve to “explain the circumstances” of the offense, tend to

“lessen the punishment to be adjudged,” or rebut anything

presented by the prosecution.   See R.C.M. 1001(c)(1).   In this

case, voluntarily waiving the right to raise this issue in an

unsworn statement did not deprive appellant of a “complete

sentencing proceeding.”



     Finally, Appellant points out that his initial

understanding with the Government concerning the substance of

the pretrial agreement did not include the provision that

required Appellant not to discuss the AFOSI questioning.    It was

only after the notification pursuant to Uniform Rules Rule

3.1(D) that the Government insisted on the contested provision.

Appellant appears to argue that the Government should be

required to honor the initial pretrial agreement discussions.




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United States v. Edwards, 02-0229/AF


     Prior to the finalization of the pretrial agreement the

Government proposed an additional term.   Rule for Courts-Martial

705 clearly provides that acceptance of the pretrial agreement

is solely within the discretion of the convening authority.      The

convening authority was not bound by the initial discussions

between the Government and the defense counsel.   Moreover, the

Government in this case was not estopped from changing their

position on the proposed agreement.    At that point the Appellant

could have choosen to either accept the pretrial agreement or

reject it and go to trial, where he could have raised any

appropriate issue in an unsworn statement.



                            CONCLUSION



     The military judge in this case conducted an appropriate

inquiry into whether Appellant understood the implications of

the waiver, and whether it was voluntarily and knowingly

executed.   We agree with the military judge’s determination that

the waiver was voluntarily and knowingly executed.   Under the

facts presented in this case, we hold that Appellant’s waiver of

his right to discuss, in his unsworn statement, that the AFOSI

interrogated him without notifying his defense counsel does not

violate public policy.




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United States v. Edwards, 02-0229/AF


     The decision of the Air Force Court of Criminal Appeals is

therefore affirmed.




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