                         UNITED STATES, Appellee

                                         v.

                  Matthew W. GLADUE, Staff Sergeant
                      U.S. Air Force, Appellant

                                  No. 08-0452
                           Crim. App. No. 36580

       United States Court of Appeals for the Armed Forces

                         Argued December 3, 2008

                          Decided April 28, 2009

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, J., filed a separate opinion
concurring in the result, in which EFFRON, C.J., joined.


                                     Counsel


For Appellant: Captain Tiffany M. Wagner (argued); Major
Shannon A. Bennett and Captain Griffin S. Dunham (on brief).


For Appellee: Captain Naomi N. Porterfield (argued); Colonel
Gerald R. Bruce and Major Jeremy S. Weber (on brief); Major
Matthew S. Ward and Captain Brendon K. Tukey.


Military Judge:    Donald A. Plude


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gladue, No. 08-0452/AF


     Judge STUCKY delivered the opinion of the Court.

     We granted review to determine whether Appellant’s pretrial

agreement (PTA) to “waive any waiveable [sic] motions” barred

Appellant from asserting claims of multiplicity or

multiplication of charges on appeal.    We find that under these

facts it did, and affirm.

     This case began when Appellant brought a firearm onto

Robins Air Force Base in violation of Base Instruction 31-101.

Upset with the treatment he had received from two of his

supervising noncommissioned officers, Appellant communicated to

friend and coworker Staff Sergeant Jeremy Green detailed and

apparently sincere threats to kill Master Sergeant Clifford

Walton, Appellant’s flight chief and second-level supervisor,

and Technical Sergeant Anthony Staggers, his immediate

supervisor.   While in pretrial confinement at the Houston County

Detention Center in Perry, Georgia, for these offenses,

Appellant concocted a plan to hire a contract killer to murder

the principal witness to the threats.   At Appellant’s request, a

fellow prisoner put him in contact with a purported contract

killer, in actuality an undercover law enforcement officer.

     Appellant was tried before a general court-martial

consisting of a military judge sitting alone.   In return for a

ten-year cap on any sentence to confinement and the dismissal of

certain additional specifications, Appellant agreed to a PTA


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United States v. Gladue, No. 08-0452/AF


requiring him to plead guilty to the following offenses:     one

specification of attempted conspiracy to murder; one

specification of conspiracy to murder; one specification of

failure to obey an order or regulation; two specifications of

communicating a threat; one specification of endeavoring to

impede a court-martial in violation of Article 134; and two

specifications of solicitation of murder.   Articles 80, 81, 92,

and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§

880, 881, 892, 934 (2000).

     In accordance with his pleas, Appellant was convicted of

these offenses and sentenced by the military judge to a

dishonorable discharge, confinement for eighteen years,

forfeiture of all pay and allowances, and reduction to E-1.

Under the terms of the PTA, the convening authority approved

only so much of the sentence as extended to a dishonorable

discharge, confinement for ten years, forfeiture of all pay and

allowances, and reduction to E-1.    The United States Air Force

Court of Criminal Appeals (CCA) affirmed the findings and

sentence.   United States v. Gladue, 65 M.J. 903, 906 (A.F. Ct.

Crim. App. 2008).

                    I.   The Pretrial Agreement

     In the PTA, Appellant agreed to “waive any waiveable [sic]

motions” and stated that “My defense counsel have fully advised

me of . . . any defenses that might apply. . . .   I fully


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United States v. Gladue, No. 08-0452/AF


understand their advice and the meaning, effect, and

consequences of this plea.”   At the trial, the following

colloquy took place:

          MJ: In particular, do you understand that this
          term of you [sic] pretrial agreement precludes
          this court or any appellate court from having
          the opportunity to determine if you are
          entitled to any relief upon those motions?

          ACC:   Yes, sir.

          MJ: Essentially it is a speak now or forever
          hold your peace scenario. The motion would
          have to be raised before entering a plea and if
          you don’t do so, then you lose the ability to
          argue them later on. Do you understand that?

          ACC:   Yes sir, I do.

          MJ: When you elected to give up the right to
          litigate these motions and I am going to be
          discussing with your counsel shortly what these
          motions are, did your defense counsel explain
          this term of the pretrial agreement and the
          consequences to you?

          ACC:   Yes sir, they did.

          MJ: Did anyone force you to enter into this
          term of your pretrial agreement?

          ACC:   No, sir.

          MJ: Defense counsel, which side originated the
          waiver of motions provision?

          CIV DC:   The prosecution did.

          MJ: SSgt Gladue, although the government
          originated this term of your pretrial
          agreement, did you freely and voluntarily agree
          to this term of your pretrial agreement in
          order to receive what you believe to be a
          beneficial pretrial agreement?


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United States v. Gladue, No. 08-0452/AF


           ACC:   Yes sir, I did.

     The military judge then went on to discuss with Appellant’s

civilian defense counsel certain motions.     These included (1) a

motion for change of venue, (2) a motion to suppress, (3) a

motion for continuance, and (4) the defense of entrapment.

Appellant acknowledged that he had discussed these possible

motions with his counsel and, as part of the PTA offer, decided

to affirmatively waive raising them.    Motions relating to

multiplicity and unreasonable multiplication of charges were not

among those discussed by the military judge.

     Before the CCA, Appellant argued that his conviction on the

two specifications of solicitation to murder were multiplicious

with the specifications of impeding a trial by soliciting

another to commit murder and the attempted conspiracy to murder.

Gladue, 65 M.J. at 904.     In the alternative, Appellant argued

that the charges constituted an unreasonable multiplication of

charges.   Id.

     The CCA rejected this argument.    The court held that the

claims of unreasonable multiplication of charges and

multiplicity were waived.    Id. at 905-06.   The CCA found that

the military judge conducted an “extensive inquiry” into

Appellant’s understanding and acknowledgment of each provision

of the PTA.   Id. at 904.    Appellant’s agreement to the PTA was




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United States v. Gladue, No. 08-0452/AF


made freely and voluntarily, and thus the CCA found that as a

“matter of fact” Appellant “voluntarily relinquished his rights

at trial and on appeal to raise ‘waivable motions.’”      Id.

                            II.   Discussion

     The granted issue arises out of the failure of military

courts to consistently distinguish between the terms “waiver”

and “forfeiture.”   See United States v. Harcrow, 66 M.J. 154,

156 n.1 (C.A.A.F. 2008).    “Waiver is different from forfeiture.

Whereas forfeiture is the failure to make the timely assertion

of a right, waiver is the ‘intentional relinquishment or

abandonment of a known right.’”     United States v. Olano, 507

U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)).   The distinction between the terms is important.

If an appellant has forfeited a right by failing to raise it at

trial, we review for plain error.       Harcrow, 66 M.J. at 156

(citing Olano, 507 U.S. at 733-34).       When, on the other hand, an

appellant intentionally waives a known right at trial, it is

extinguished and may not be raised on appeal.      Id. (citing

Olano, 507 U.S. at 733-34).

     The prohibition against multiplicity is grounded in

compliance with the “constitutional and statutory restrictions

against Double Jeopardy.”    United States v. Quiroz, 55 M.J. 334,

337 (C.A.A.F. 2001).   The related policy against the




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United States v. Gladue, No. 08-0452/AF


unreasonable multiplication of charges, Rule for Courts-Martial

(R.C.M.) 307(c)(4), addresses the danger of prosecutorial

overreaching.   Quiroz, 55 M.J. at 337.

     Appellant asserts that an unconditional guilty plea does

not waive multiplicity claims and that “the policy behind

multiplicity dictates that the existence of a pretrial agreement

does not prevent an appellant from raising issues waived at

trial.”   Citing United States v. Heryford, 52 M.J. 265, 266

(C.A.A.F. 2000), and United States v. Britton, 47 M.J. 195,

198-99 (C.A.A.F. 1997), Appellant argues that this is a case of

plain error, in that the specifications complained of are

“facially duplicative,” that plain error exists, and that the

waiver provision in the PTA is therefore ineffective.

     This case is distinct from the cases relied upon by

Appellant because here Appellant’s pretrial agreement expressly

waived all waivable motions.   We hold that Appellant waived,

rather than forfeited these issues.   In United States v. Lloyd,

this Court recognized that even in cases in which an appellant

failed to raise multiplicity at trial, he would be entitled to

relief if the specifications were facially duplicative.    46 M.J.

19, 23 (C.A.A.F. 1997).   But we added a caveat:   “Express waiver

or voluntary consent, however, will foreclose even this limited

form of inquiry.”   Id.   Although Lloyd only addressed




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United States v. Gladue, No. 08-0452/AF


multiplicity, we see no reason why the same caveat regarding

express waiver or consent should not apply to the concept of

unreasonable multiplication of charges, and therefore adopt it.

     Admittedly, motions relating to multiplicity and

unreasonable multiplication of charges were not among those

subsequently discussed by the military judge and the civilian

defense counsel.   However, this does not affect the validity of

the waiver.   The text of the PTA unambiguously agrees to “waive

any waiveable [sic] motions,” and after the military judge

conducted a detailed, careful, and searching examination of

Appellant to ensure that he understood the effect of the PTA

provision, Appellant explicitly indicated his understanding that

he was giving up the right “to make any motion which by law is

given up when you plead guilty.”       (Emphasis added.)

     “A criminal defendant may knowingly and voluntarily waive

many of the most fundamental protections afforded by the

Constitution.”   United States v. Mezzanatto, 513 U.S. 196, 201

(1995).   That includes double jeopardy, the basis of the

multiplicity objection.   See id. (citing Ricketts v. Adamson,

483 U.S. 1, 10 (1987) (double jeopardy defense waivable by

pretrial agreement)).   The caution against the unreasonable

multiplication of charges is not a constitutional imperative,

but rather a presidential policy.      United States v. Weymouth,




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United States v. Gladue, No. 08-0452/AF


43 M.J. 329, 335 (C.A.A.F. 1995).   In the absence of an explicit

prohibition, a party may knowingly and voluntarily waive such a

nonconstitutional right in a PTA.   See Shutte v. Thompson, 82

U.S. 151, 159 (1873) (stating that “[a] party may waive any

provision, either of contract or of a statute, intended for his

benefit”); United States v. Edwards, 58 M.J. 49, 52 (C.A.A.F.

2003) (citing Mezzanatto, 513 U.S. at 201).   Although the

President has prohibited the waiver of certain fundamental

rights in a PTA, neither multiplicity nor the unreasonable

multiplication of charges is among them.   R.C.M. 705(c)(1)(B).

Appellant’s express waiver of any waivable motions waived claims

of multiplicity and unreasonable multiplication of charges, and

extinguished his right to raise these issues on appeal.   This

being the case, we need not reach the issue of whether the

specifications were in fact facially duplicative.

                         III.   Decision

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. Gladue, No. 08-0452/AF


     BAKER, Judge, with whom EFFRON, Chief Judge, joins

(concurring in the result):

     I agree with the general proposition that an accused can

waive waivable motions, which is a circular legal truism, of

course.   However, I would not find waiver, express or otherwise,

in this case because the military judge catalogued the motions

at issue and he did not include either multiplicity or

unreasonable multiplication of charges among the motions waived.

     As the majority notes, waiver, the “intentional

relinquishment or abandonment of a known right,” differs from

forfeiture, “the failure to make the timely assertion of a

right.”   United States v. Gladue, __ M.J. __ (6) (C.A.A.F. 2009)

(quoting United States v. Olano, 507 U.S. 725, 733 (1993)

(quotation marks omitted)).   Generally, waivers of fundamental

constitutional rights, including protection from double

jeopardy, must be “knowing, intelligent, and voluntary.”

Ricketts v. Adamson, 483 U.S. 1, 23 (1987) (citing Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)).   See U.S. Const. amend. V

(“No person shall . . . be subject, for the same offence, to be

twice put in jeopardy of life or limb.”).   Here, the record

reveals no indication that Appellant knowingly, voluntarily, and

intelligently waived his double jeopardy claims.   Although

Appellant expressly waived all waivable motions, the military

judge delimited that waiver by cataloguing the specific motions
United States v. Gladue, No. 08-0452/AF


and issues waived.   This catalogue did not include multiplicity

or an unreasonable multiplication of charges:

          MJ: When you elected to give up the right to
          litigate these motion [sic] and I am going to be
          discussing with your counsel shortly what these
          motions are, did your defense counsel explain
          this term of the pretrial agreement and the
          consequences to you?

          ACC:   Yes sir, they did.

          . . . .

          MJ: Defense counsel, what do you believe to be
          the factual basis for any motions covered by the
          pretrial agreement? Per one of the 802
          conferences that we held prior to this trial I
          was informed of two potential motions. One of
          which you had submitted, motion for change of
          venue. I was also advised of a motion to
          suppress evidence that would effect --

          CIV DC: Those items which were found in the jail.

          . . . .

          MJ: Please explain to me or educate me if you
          would on what you believe is the factual basis of
          any motions covered by this term of the pretrial
          agreement?

          CIV DC: Outside of the ones that you just
          described which [sic] will be the motion for
          continuance --

          . . . .

          CIV DC: The only other one that we can describe,
          which was somewhat eluded [sic] to by the
          prosecution, would be the entrapment defense. Of
          course as we know that can either be raised by a
          motion or upon the trial of the case, whatever
          the evidence would be in that particular matter.
          We would waive that particular motion as well.


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United States v. Gladue, No. 08-0452/AF


          . . . .

          MJ: SSgt Gladue, the motion for the change of
          venue was made and a possible ruling could have
          been that your trial would have been moved to
          another location other than being held [sic] at
          or near Robins AFB. It wouldn’t necessarily
          effect [sic] any of the charges against you, just
          the location of your trial. Do you understand
          that?

          ACC: Yes, sir.

          . . . .

          MJ: The entrapment issue and the motion to
          suppress, if they were granted, that could result
          in -- well, with regard to the suppression
          motion, the inability of the government to use
          that evidence to prove your offense which could
          result in a dismissal of those effective charges.
          Similarly the entrapment offense, if the
          government was unable to prove beyond a
          reasonable doubt that you were not entrapped,
          that similarly could result with respect of a
          finding of not guilty. Possibly a motion for
          finding him not guilty could be approved by the
          court with regard to some or all of the
          additional charges or second additional charges.

          . . . .

          MJ: SSgt Gladue, do you understand that if these
          motions were made and granted by me that there is
          a possibility that the relief that I’ve
          discussed, specifically dismissal of some or all
          of those effected [sic] charges could result?

          ACC: Yes, sir.

          MJ: I said possibility because at this point in
          time no one knows for certain whether or not it
          would have that effect. Have you discussed those
          motions with your defense counsel?

          ACC: Yes sir, I have.


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United States v. Gladue, No. 08-0452/AF


             MJ: Knowing what your defense counsel and I have
             told you, do you want to give up making those
             motions in order to get the benefit of your
             pretrial agreement?

             ACC: Yes sir, I do.

        The accused, especially in a plea context, looks to the

military judge to explain the law and to ensure he understands

the terms of his pretrial agreement, as well as the consequences

and meaning of his plea.    The military judge did so in this

case.    Nonetheless, the majority considers the military judge’s

explanation irrelevant to Appellant’s understanding of his plea

and its terms.    I do not see how we can determine Appellant’s

plea was knowing and voluntary if we do not assess it in the

context in which it was explained on the record to Appellant.

See United States v. Smith, 56 M.J. 271, 272-73 (C.A.A.F. 2002)

(“To ensure that the record reflects the accused understands the

pretrial agreement and that both the Government and the accused

agree to its terms, the military judge must ascertain the

understanding of each party during the inquiry into the

providence of the plea.”).

        Further, an accused cannot silently waive appellate review

of plain error.    See United States v. Branham, 97 F.3d 835, 842

(6th Cir. 1996) (reviewing for plain error because failure to

take affirmative steps to waive double jeopardy claims

constituted forfeiture rather than waiver); United States v.


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United States v. Gladue, No. 08-0452/AF


Lloyd, 46 M.J. 19, 22 (C.A.A.F. 1997) (“[I]n the absence of an

express waiver or consent, we have not abandoned the doctrine of

plain error with respect to multiplicious offenses.”).   Waiver

of waivable motions should be done on the record and expressly.

Otherwise, the military judge and appellate courts will not be

in a position to assess whether the waiver is knowing and

voluntary.

     That being said, I concur in the result because, waiver or

not, there is no plain error in this case.   There is no error

because the charges were not facially duplicative and did not

represent an unreasonable multiplication of charges.   See United

States v. Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006)

(“Multiplicity and unreasonable multiplication of charges are

two distinct concepts.   While multiplicity is a constitutional

doctrine, the prohibition against unreasonable multiplication of

charges is designed to address prosecutorial overreaching.”)

(citing United States v. Quiroz¸ 55 M.J. 334, 337 (C.A.A.F.

2001)).

     First, the charges were not “facially duplicative, that is,

factually the same.”   United States v. Heryford, 52 M.J. 265,

266 (C.A.A.F. 2000) (quotation marks omitted).   To the contrary,

the charges included distinct elements.   See United States v.

Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004) (“Under [the elements]

test, the court considers ‘whether each provision requires proof

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United States v. Gladue, No. 08-0452/AF


of a fact which the other does not.’”) (quoting Blockburger v.

United States, 284 U.S. 299, 304 (1932)).     Although

Specifications 1 and 4 of Additional Charge II both address

Appellant’s “solicit[ation of] an undercover law enforcement

known to the accused as ‘Mike Williams’ to murder Staff Sergeant

Jeremy Green,” they are distinct because Specification 1

includes the additional element that the solicitation impeded

Appellant’s trial by court-martial.1     Whereas solicitation

requires “intent that the offense actually be committed,”

Specification 1 requires additional proof that Appellant

committed the offense of solicitation to “endeavor to impede a


1
    As stated in the charge sheet:

       ADDITIONAL CHARGE II, Violation of the UCMJ, Article
       134

       Specification 1: In that [Appellant] did, at or near
       Perry, Georgia, between on or about 16 July 2004 and
       on or about 13 October 2004, wrongfully endeavor to
       impede a trial by court-martial in the case of the
       United States vs. Staff Sergeant Matthew W. Gladue, by
       soliciting an undercover law enforcement officer known
       to the accused as “Mike Williams” to murder Staff
       Sergeant Jeremy Green, a witness in the case of United
       States vs. Staff Sergeant Matthew W. Gladue.

       . . . .

       Specification 4: In that [Appellant] did, at or near
       Perry, Georgia, between on or about 16 July 2004 and
       on or about 13 October 2004, wrongfully solicit an
       undercover law enforcement officer known to the
       accused as “Mike Williams” to murder Staff Sergeant
       Jeremy Green.

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United States v. Gladue, No. 08-0452/AF


trial by court-martial.”    Manual for Courts-Martial, United

States pt. IV, para. 105.b(2) (2005 ed.) (MCM).

       Further, the specification of the Second Additional Charge

departs from Specification 3 of Additional Charge II because,

even though it similarly addresses the role of Christopher

Carter, it also addresses the payment of money, the involvement

of Appellant’s wife, and the role of “Mike Williams” in

Appellant’s scheme.2    Additionally, conspiracy is a distinct



2
    As stated in the charge sheet:

       ADDITIONAL CHARGE II, Violation of the UCMJ, Article
       134

       . . . .

       Specification 3: In that [Appellant] did, at or near
       Perry, Georgia, between on or about 16 July 2004 and
       on or about 13 October 2004, wrongfully solicit
       Christopher Carter to secure the services of a
       contract killer to murder Staff Sergeant Jeremy Green.

       . . . .

       SECOND ADDITIONAL CHARGE, Violation of the UCMJ,
       Article 80

       Specification: In that [Appellant] did, at or near
       Perry, Georgia, between on or about 15 September 2004
       and on or about 13 October 2003, attempt to conspire
       with Christopher Carter and an undercover law
       enforcement officer known to the accused as “Mike
       Williams” to commit an offense under the Uniform Code
       of Military Justice, to wit: the murder of Staff
       Sergeant Jeremy Green and in order to effect the
       object of the conspiracy the said Staff Sergeant
       Matthew W. Gladue did give a written contract to
       Christopher Carter promising the payment of money,
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United States v. Gladue, No. 08-0452/AF


offense from solicitation because conspiracy requires additional

proof “[t]hat the accused entered into an agreement with one or

more persons to commit an offense” and “the accused or at least

one of the co-conspirators performed an overt act for the

purpose of bringing about the object of the conspiracy.”    MCM

pt. IV, para. 5.b.   See United States v. Carter, 30 M.J. 179,

180-81 (C.M.A. 1990) (concluding that charging conspiracy and

solicitation was not multiplicious because the offenses have

different elements).

     Second, there was no unreasonable multiplication of

charges.   Appellant did not object to the multiple charges and

their specifications, and the specifications at issue address

distinct criminal acts, do not misrepresent or exaggerate

Appellant’s criminality, did not unreasonably increase

Appellant’s punitive exposure, and are not the result of

prosecutorial overreaching.   See Quiroz, 55 M.J. at 338 (relying

on a list of factors to determine the unreasonable

multiplication of charges).   In that context, it is firm, but

not unreasonable, to charge each independent aspect of the

conduct.




     request to be introduced to “Mike Williams,” direct
     Jessica Gladue to meet with Christopher Carter and
     “Mike Williams,” and direct Jessica Gladue to pay
     Christopher Carter and “Mike Williams” money.
                                 8
