                       UNITED STATES, Appellee

                                    v.

                       Richard M. DEAN, Private
                         U.S. Army, Appellant

                              No. 08-0431

                       Crim. App. No. 20051336

       United States Court of Appeals for the Armed Forces

                       Argued December 16, 2008

                        Decided March 12, 2009

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

                                 Counsel


For Appellant: Captain Richard P. Pizur (argued); Lieutenant
Colonel Matthew M. Miller, Lieutenant Colonel Mark Tellitocci,
and Captain Shay Stanford (on brief); Colonel Christopher J.
O’Brien, Lieutenant Colonel Steven C. Henricks, Major Teresa L.
Raymond, and Captain Sean F. Mangan.

For Appellee: Captain Mark E. Goodson (argued); Colonel Denise
R. Lind, Lieutenant Colonel Mark H. Sydenham, and Major Lisa L.
Gumbs (on brief); Lieutenant Colonel Francis C. Kiley.

Military Judge:   David L. Conn


       This opinion is subject to revision before final publication.
United States v. Dean, No. 08-0431/AR


     Judge ERDMANN delivered the opinion of the court.

     Private Richard M. Dean was charged with arson, larceny,

making a false official statement, and burglary.   The parties

entered into a pretrial agreement that did not include a

misconduct provision authorized in Rule for Courts-Martial

(R.C.M.) 705(c)(2)(D).    On the eve of trial, the convening

authority withdrew from the pretrial agreement because Dean

would not agree to modify the stipulation of fact to include new

acts of alleged misconduct.   Dean moved to compel enforcement of

the pretrial agreement.    The military judge conducted a hearing

and allowed the convening authority to withdraw.

     Dean subsequently entered pleas of not guilty to all

charges and specifications and was convicted of several offenses

by the military judge.    His adjudged and approved sentence

included a term of confinement that exceeded the limit set out

in the pretrial agreement by sixteen months.   We granted review

to determine whether the military judge erred in permitting the

convening authority to withdraw from the pretrial agreement.     67

M.J. 45 (C.A.A.F. 2008).   We hold that under the facts of this

case the convening authority did not have a right to withdraw

under R.C.M. 705(d)(4)(B), and we therefore reverse the United

States Army Court of Criminal Appeals.




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United States v. Dean, No. 08-0431/AR

                             Background

     Dean was arraigned on July 8, 2005.    He deferred pleas and

requested a military judge-alone trial.    On July 21, 2005, the

defense filed a motion for pretrial confinement credit under

Article 13, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

813 (2000).   On August 12, 2005, defense counsel notified the

Government of his intention to call sixteen witnesses at trial.

     Dean submitted an Offer to Plead Guilty and stipulation of

fact to the convening authority on August 29, 2005.   Paragraph 1

of the Offer to Plead Guilty required Dean to perform as

follows:   plead guilty to all but one specification; enter into

a written stipulation of fact with the trial counsel as to the

circumstances of the offense; elect to be tried by military

judge alone; waive the July 21, 2005, motion for pretrial

confinement credit; waive the personal appearance of three

specific military witnesses; and request that the Government

produce no more than two non-local defense witnesses to testify

at the court-martial.

     Paragraph 2 of the Offer to Plead Guilty stated that “[i]n

exchange for my actions as stated in paragraph 1, above, the

convening authority agrees to take the actions specified in

Appendix 1 to this offer.”   Appendix 1, the quantum portion of

the agreement, stated that the convening authority would not

approve any confinement in excess of twenty-four months.



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United States v. Dean, No. 08-0431/AR

     Paragraph 3 of the Offer to Plead Guilty addressed

cancellation of the agreement as follows:

     I understand that this agreement may be cancelled upon
     the happening of any of the following events:

     a.    My failure to arrive at an agreement with the trial
           counsel on the contents of the stipulation of fact, or
           any modification of the stipulation without my consent.

     b.    My withdrawal from this agreement at any time before
           sentence is announced.

     c.    Withdrawal from the agreement by the convening authority
           before I begin performance of promises contained in
           paragraph 1 of this agreement, upon my failure to
           fulfill any material promise or condition contained in
           paragraph 1 of this agreement or when inquiry by the
           military judge discloses a disagreement as to a material
           term in the agreement.

As noted, the agreement did not contain any misconduct

provisions authorized in R.C.M. 705(c)(2)(D).

     Contemporaneous with the Offer to Plead Guilty, Dean

submitted a stipulation of fact to the convening authority which

had been executed by Dean, his defense counsel and the trial

counsel.    The convening authority accepted and signed the Offer

to Plead Guilty on September 14, 2005.    On October 3, 2005,

defense counsel submitted a revised witness list notifying the

Government that the only witnesses he intended to call were two

local civilians.

     On October 11, 2005, the eve of trial, trial counsel

learned that there was probable cause to believe Dean had

recently committed additional larcenies and made a false



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United States v. Dean, No. 08-0431/AR

official statement.   Trial counsel wanted to modify the

stipulation of fact to include this additional information as

evidence in aggravation.   Dean and his defense counsel would not

agree to the modification, which resulted in the convening

authority’s withdrawal from the pretrial agreement.

     Dean moved for enforcement of the pretrial agreement

arguing that because he began to perform the promises contained

in the agreement, the Government did not have the right to

withdraw.   The military judge conducted a hearing on November 7,

2005, and denied the defense’s motion on the grounds that there

was no evidence to show that Dean had detrimentally relied on

the pretrial agreement or that the Government sought to withdraw

for an illegitimate or arbitrary reason.1

     Dean proceeded to a military judge-alone trial on November

9, 2005, without a pretrial agreement.    He entered pleas of not

guilty to all charges and specifications but was convicted of

several offenses by the military judge.     Dean was sentenced to a

bad-conduct discharge, forfeitures of all pay and allowances,

1
  R.C.M. 705 (d)(4)(B) provides that a convening authority may
withdraw from a pretrial agreement for the following reasons:
“any time before the accused begins performance of promises
contained in the agreement”; “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”; and “if the findings are set
aside because a plea of guilty entered pursuant to the agreement
is held improvident on appellate review.” Neither of the




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United States v. Dean, No. 08-0431/AR

and confinement for forty months.     The adjudged length of

confinement was sixteen months greater than the limit set by the

earlier pretrial agreement.    The convening authority approved

the sentence as adjudged.    The United States Army Court of

Criminal Appeals summarily affirmed.       United States v. Dean, No.

ARMY 20051336 (A. Ct. Crim. App. Mar. 12, 2008) (per curiam).

                              Discussion

     Dean argues that under both R.C.M. 705(d)(4)(B) and the

provisions of the pretrial agreement, the right of the convening

authority to withdraw from the pretrial agreement terminated

when he began performance.    While Dean disputes that a showing

of detrimental reliance is required under R.C.M. 705(d)(4)(B),

he argues that the convening authority’s withdrawal was to his

detriment in regard to the production of witnesses.      Dean also

argues that because the Government would not consent to a

conditional guilty plea to preserve the withdrawal issues for

appeal, he lost a meaningful opportunity to plead guilty to some

offenses.   The Government responds that the convening

authority’s withdrawal from the pretrial agreement was proper on

four grounds:   (1) Dean did not begin performance under R.C.M.

705(d)(4)(B) or under paragraph 3.c. of the agreement and there

was no detrimental reliance; (2) inquiry by the military judge



grounds relied upon by the military judge are found in that
provision.



                                  6
United States v. Dean, No. 08-0431/AR

disclosed a disagreement as to a material term in the agreement;

(3) Dean violated an implied obligation of good faith embodied

in the agreement; and (4) Dean failed to arrive at an agreement

with trial counsel to modify the stipulation in violation of

paragraph 3.a. of the agreement.

     Interpretation of a pretrial agreement and interpretation

of provisions of the R.C.M. are questions of law that this court

reviews de novo.   United States v. Hunter, 65 M.J. 399, 401

(C.A.A.F. 2008).   We conclude that under the facts of this case

none of the Government’s asserted grounds provide a valid basis

for withdrawal.    We address each of the Government’s asserted

grounds in turn.

     1.   Whether Dean began performance of the promises in
          the pretrial agreement.

     In military practice, the convening authority’s rights to

withdraw are set out in R.C.M. 705(d)(4)(B) and frequently, like

here, are reflected in the terms of the pretrial agreement

itself.   R.C.M. 705(d)(4)(B) provides in part that the

“convening authority may withdraw from a pretrial agreement at

any time before the accused begins performance of promises

contained in the agreement.”   Dean’s pretrial agreement

acknowledges this right in paragraph 3.c. with the following

language:   “I understand that this agreement may be canceled

upon the happening of any of the following events . . .




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United States v. Dean, No. 08-0431/AR

Withdrawal from the agreement by the convening authority before

I begin performance of promises contained in paragraph 1 of this

agreement . . . .”

     Paragraph 1 of the agreement contains six separate promises

to be performed by Dean.   He contends that he began performance

of these promises by entering into a stipulation of fact with

the trial counsel, by submitting a request to be tried by

military judge alone, and by waiving the personal appearance of

certain witnesses.   The Government responds that an accused’s

performance does not “begin,” for purposes of a pretrial

agreement, until the accused enters a guilty plea.      According to

the Government, because Dean had not yet entered a guilty plea,

he had not yet begun to perform.       The Government also argues

that because Dean failed to “begin” performance, he must show

detrimental reliance to be entitled to specific performance of

the agreement.

     In light of the plain language of R.C.M. 705(d)(4)(B), the

Government’s position is untenable.      The rule does not state, as

it easily could have, that the convening authority may withdraw

from a pretrial agreement at any time before the accused enters

a guilty plea.   Rather, it clearly states that the convening

authority may withdraw from the agreement at any time before the

accused “begins performance of promises contained in the

agreement.”   The drafters chose the plural of “promise,” so



                                   8
United States v. Dean, No. 08-0431/AR

while a promise to plead guilty is certainly a relevant

consideration, it is not the only promise which can trigger the

“begins performance” criteria.2

     Furthermore, the Government’s position directly conflicts

with the persuasive guidance provided by the Drafters’ Analysis

of R.C.M. 705(d)(4)(B), which states:   “Note that the beginning

of performance is not limited to entry of a plea.   It would also

include testifying in a companion case, providing information to

Government agents, or other actions pursuant to the terms of an

agreement.”   Manual for Courts-Martial, United States, Analysis

of the Rules for Courts-Martial app. 21 at A21-41 (2008 ed.)

[hereinafter Drafters’ Analysis]; see United States v. Toy, 65

M.J. 405, 410 n.3 (C.A.A.F. 2008) (recognizing the Drafters’

Analysis of M.R.E. 317 as persuasive authority).

2
  As support for its position the Government relies primarily on
two cases from this court, United States v. Manley, 25 M.J. 346,
350 (C.M.A. 1987), and United States v. Kitts, 23 M.J. 105, 108
(C.M.A. 1986). Both cases are inapposite. In Manley, we noted
that “the accused commenced performance by entering pleas of
guilty pursuant to the written pretrial agreement before the
Government took any action to withdraw” without mentioning that
entry of a stipulation also occurred pursuant to the terms of
the agreement. 25 M.J. at 350. Relying on entry of a guilty
plea to show that performance began is not the same as holding
that entry of a guilty plea is the only way to begin
performance. In Kitts, while addressing allegations that
unlawful command influence impacted the pretrial agreement
process, we generalized in dicta that “the Government will
usually be protected by the power to withdraw from a plea
agreement up until the plea is entered.” 23 M.J. at 108. Kitts
did not discuss or cite R.C.M. 705(d)(4)(B) and has no




                                  9
United States v. Dean, No. 08-0431/AR

        In this case, Dean either performed or began to perform

several of the promises listed in the agreement before the

convening authority announced his withdrawal on October 11,

2005:    Dean elected trial by military judge alone on July 8,

2005; he entered into a stipulation of fact with trial counsel

as to the circumstances of the offense on August 29, 2005; and

on October 3, 2005, he filed an amended witness list which

complied with two separate promises he made regarding the

production of witnesses.    The convening authority’s right to

withdraw “any time before the accused begins performance of

promises contained in the agreement” therefore terminated before

he announced his withdrawal from the agreement.    R.C.M.

705(d)(4)(B).3

        2. Whether the record demonstrates that inquiry by
           the military judge disclosed a disagreement as to a
           material term in the agreement under R.C.M.
           705(d)(4)(B).

        In addition to allowing the convening authority to withdraw

from a pretrial agreement at any time before the accused begins



application to this case. To the extent the generality
conflicts with R.C.M. 705(d)(4)(B), we reject it.
3
  In reaching this conclusion, we need not address whether Dean
detrimentally relied on the actions he took to comply with his
promises in the agreement. The Government argues that Dean must
show detrimental reliance only if he did not “begin” performance
of the agreement. See Shepardson v. Roberts, 14 M.J. 354, 358
(C.M.A. 1983). As we have found that Dean did “begin”
performance, the issue of the continuing viability, if any, of
the doctrine of detrimental reliance on R.C.M. 705(d)(4)(B) is
reserved for a future case.



                                  10
United States v. Dean, No. 08-0431/AR

performance, R.C.M. 705(d)(4)(B) also provides that the

convening authority may withdraw “when inquiry by the military

judge discloses a disagreement as to a material term in the

agreement.”   The Government contends that since the parties

litigated the meaning of the phrase “before I begin performance”

at the trial level, that action reflected a “disagreement”

sufficient to trigger the convening authority’s right to

withdraw under this component of R.C.M. 705(d)(4)(B).      The

Government makes this argument on appeal despite the fact that

it did not rely on that basis for withdrawal at the trial level.

In support, the Government cites United States v. Williams, 60

M.J. 360 (C.A.A.F. 2004).

     The Government’s reliance on Williams is misplaced.         In his

pretrial agreement, Williams had promised to make restitution to

his victims and even before trial the parties disagreed as to

whether that restitution had to be made before Williams entered

his plea.   Id. at 361.   At trial Williams had not made

restitution and the convening authority withdrew from the

agreement under the “failed to fulfill a material promise or

condition” component of R.C.M. 705(d)(4)(B).   Id.   On appeal to

this court, we held that we did not need to determine whether

Williams had failed to “fulfill a material promise or condition”

as the inquiry conducted by the military judge clearly




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United States v. Dean, No. 08-0431/AR

established “a disagreement as to a material term in the

agreement.”   Id. at 363.

     Although the government in Williams did not rely on the

“disagreement of a material term” component of R.C.M.

705(d)(4)(B) at the trial level, the military judge noted that

the disagreement between the parties arose from the language of

the agreement itself and acknowledged that the justification for

the government’s withdrawal was based on that disagreement:      “It

would have been much better had the -- had it [when restitution

had to be made] been spelled out in writing in the Offer to

Plead Guilty, that it [restitution] was before trial and not --

then we wouldn’t have this issue at all.”    Id. at 361.   The

parties’ positions at the hearing together with these remarks

clearly reflected an inquiry in which the military judge had

ascertained an underlying disagreement between the parties as to

what the negotiated term meant, as well as the material nature

of that term.   Id. at 361-63.

     We do not have the same situation in this case.    Here the

inquiry before the military judge focused on the convening

authority’s right to withdraw before an accused begins to

perform.   As discussed in the preceding section, this right is

conveyed to the convening authority as a matter of law under

R.C.M. 705(d)(4)(B).   See supra pp. 8-10.   While the parties

included this right as a term in the pretrial agreement, neither



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United States v. Dean, No. 08-0431/AR

party asserts on appeal nor does the record of trial suggest

that use of the phrase “before I begin performance” was intended

to convey rights beyond what the rule itself conveys.

Furthermore, at no point during the hearing or in his ruling did

the military judge address whether the “begin performance” term

was material to the agreement.

     As such, neither the purpose nor the result of the military

judge’s inquiry in this case was to ascertain whether the

parties disagreed as to a material term.   On the contrary, the

hearing and the military judge’s ruling focused on

interpretation of the rule itself, which is a legal rather than

a factual inquiry.   Furthermore, unlike in Williams where the

parties’ disagreement over the restitution clause instigated the

convening authority’s withdrawal, the record in this case

demonstrates that the parties’ disagreement over the “begin

performance” term had nothing to do with the Government’s

decision to withdraw.    Trial counsel confirmed during the

hearing that the only reason the Government withdrew was because

Dean refused to modify the stipulation of fact to include

additional misconduct.

     In this case, the hearing before the military judge does

not reflect an inquiry by the military judge which “disclose[d]

a disagreement as to a material term in the agreement” under

R.C.M. 705(d)(4)(B).    Accordingly, the Government cannot rely on



                                 13
United States v. Dean, No. 08-0431/AR

this component of the rule to justify the convening authority’s

withdrawal on appeal.

       We recognize that the discussion in Williams could have

better explained the basis for our conclusion that “[t]he

inquiry conducted by the military judge clearly established ‘a

disagreement as to a material term in the agreement.’”

Williams, 60 M.J. at 363.     In reviewing that holding and to

avoid confusion in the future, we now make clear that in order

for the government, on appeal, to rely on the “disagreement as

to a material term” component of R.C.M. 705(d)(4)(B) to justify

its withdrawal from a pretrial agreement, the record must

reflect either that the government relied on that basis at trial

or that the military judge made a finding to that effect.

       3.   Whether there was an implied obligation of good
            faith not to commit additional misconduct
            embodied in the pretrial agreement.

       The Government, citing United States v. Koopman, 20 M.J.

106, 110 (C.M.A. 1985), argues that if an individual commits a

crime while under the terms of a pretrial agreement, he violates

an implied obligation of good faith and the government has a

right to withdraw from the pretrial agreement.     The Government

misreads Koopman, which involved a “different type of pretrial

agreement,” namely, an “oral promise of immunity.”     20 M.J. at

109.   One critical condition of the agreement was that Koopman

pay restitution to cover sums he had written in bad checks.      Id.



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United States v. Dean, No. 08-0431/AR

at 107.   This court upheld the military judge’s determination

that on the specific facts of that case there were two implicit

terms in the parties’ agreement:      (1) that Koopman would make

restitution within a reasonable time period after his discharge;

and (2) that the parties act in good faith to accomplish the

objectives of the contract.   Id. at 110-11.

     Before Koopman was discharged and restitution was made, he

went absent without leave for eight months, “assur[ing] that his

discharge would be substantially delayed and that restitution to

the Navy Exchange would not take place promptly.”     Id. at 111.

This court determined that Koopman violated the implicit terms

of the parties’ agreement and the government therefore had a

right to withdraw.   Id.   Contrary to the Government’s

interpretation, Koopman does not stand for the proposition that

every appellant who commits additional acts of misconduct while

a pretrial agreement is pending violates an implied obligation

of good faith embodied in the agreement.

     In United States v. Cox, 22 C.M.A. 69, 70, 46 C.M.R. 69, 70

(1972), this court long ago stated:     “We are unable to adjudge

that the pretrial agreement carries with it an implied condition

that the Government will be bound only if the appellee behaves

well.”    We see no reason to depart from that precedent here.

R.C.M. 705(c)(2)(D) allows the government to include as a

condition of the pretrial agreement an express “promise to



                                 15
United States v. Dean, No. 08-0431/AR

conform the accused’s conduct to certain conditions of probation

before action by the convening authority.”     The Government in

this case chose not to avail itself of the opportunity to

include a misconduct provision in Dean’s pretrial agreement and

that leaves the convening authority without recourse to cancel

the pretrial agreement on the grounds of alleged acts of new

misconduct.     We therefore reject the Government’s contention

that the convening authority had a right to withdraw because

Dean violated an implied obligation of good faith.

       4.   Whether Dean’s refusal to include additional acts
            of misconduct in the stipulation of fact violated
            the terms of the pretrial agreement.

       Paragraph 1.b. of the pretrial agreement required Dean to

“enter into a written stipulation of fact with the trial counsel

as to the circumstances of the offense.”     Under paragraph 3.a.,

the pretrial agreement may be cancelled upon “[m]y [Dean’s]

failure to arrive at an agreement with the trial counsel on the

contents of the stipulation of fact, or any modification of the

stipulation without my [Dean’s] consent.”     The parties reached

agreement on the stipulation of fact on August 29, 2005.        The

Government argues that Dean’s subsequent refusal to modify the

stipulation of fact to include alleged acts of new misconduct

permitted the convening authority’s withdrawal under paragraph

3.a.   Again, we disagree.




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United States v. Dean, No. 08-0431/AR

      While the language in paragraph 3.a. of the pretrial

agreement as to modification of the stipulation of fact is not a

model of clarity, the language of paragraph 1.b. is clear --

Dean agreed to enter into a written stipulation as to the

“circumstances of the offense.”    Paragraph 1.b. makes no

reference to the facts or circumstances of any misconduct other

than that charged in the offense.      As such, the modification

proposed by the Government to include recent acts of alleged

misconduct in the stipulation is outside the scope of the

parties’ agreement.   Because the pretrial agreement does not

include a misconduct provision authorized in R.C.M.

705(c)(2)(D), the convening authority cannot rely on alleged

acts of new misconduct to justify its withdrawal.     See supra p.

16.

                            Conclusion

      For all the above reasons, we conclude that the convening

authority did not properly withdraw from the pretrial agreement

in this case.   Dean has requested that this court grant relief

by affirming only so much of the sentence as includes

confinement for twenty-four months, forfeiture of all pay and

allowances, and a bad-conduct discharge.     As the convening

authority was bound under the terms of the pretrial agreement to

disapprove all confinement in excess of twenty-four months, we

find that the requested relief is appropriate.



                                  17
United States v. Dean, No. 08-0431/AR

                             Decision

     To the extent that the decision of the United States Army

Court of Criminal Appeals affirmed a sentence that included

confinement in excess of twenty-four months, the decision is

reversed.   The remainder of the findings and that portion of the

sentence extending to a bad-conduct discharge, forfeiture of all

pay and allowances, and confinement for twenty-four months are

affirmed.




                                18
United States v. Dean, No. 08-0431/AR


     BAKER, Judge (dissenting):

     I disagree with the majority on two counts.   First, the

majority concludes that the convening authority’s right to

withdraw from the plea agreement terminated because Appellant

began performance of the agreement.   In particular, he elected

trial by military judge alone on July 8, 2005, he entered into

the stipulation with the trial counsel on August 29, 2005, and

he filed his witness request on October 3, 2005.   Second, and

more importantly, the majority concludes that the language of

the pretrial agreement did not permit amendment to address

Appellant’s subsequent misconduct because the agreement did not

include a misconduct clause.   The majority is correct to focus

on preferred outcomes, but wrong to conclude that because the

agreement might have been drafted better, the parties should not

be bound by its terms.

     A. Performance Under the Agreement

     With respect to the military judge alone request and

Appellant’s entry into the stipulation, the record and the

majority’s chronology both indicate that these two events

occurred before the convening authority entered into the

agreement on September 14, 2005.   Thus, it is not clear how

Appellant could, as a matter of military or contract law, begin

performing on a contract that had not yet been signed by the

convening authority and that had not entered into force.    It
United States v. Dean, No. 08-0431/AR


appears that at the time Appellant submitted his offer for a

plea agreement, he was essentially promising to do that which he

had already done, in anticipation of an agreement.

     B.   The Proposed Modification of the Stipulation

     The stipulation of fact is inextricably related to section

3.a. of the agreement setting forth circumstances allowing for

cancellation of the agreement.   Section 3.a. states:

     I understand that this agreement may be canceled upon
     the happening of any of the following events:

     a. My failure to arrive at an agreement with the
     trial counsel on the contents of the stipulation of
     fact, or any modification of the stipulation without
     my consent.

On its face, this provision indicates that the parties

anticipated the possibility that one or both parties might seek

modification of the agreement prior to trial.      If so, the

parties would have to agree on any modification.      A stipulation

is, by definition, an agreement between the parties.      See Rule

for Courts-Martial (R.C.M.) 811.       Thus, this provision does

little more than state a truism; however, it makes clear that

the parties anticipated such an event.      The text of the

agreement does not limit the basis on which a modification might

be sought.   Moreover, according to the plain language of the

agreement, any modification to the stipulation on which the

parties could not agree would cancel the agreement.




                                   2
United States v. Dean, No. 08-0431/AR


     As a result, had the convening authority not withdrawn from

the agreement and instead forged ahead with the modification

notwithstanding the accused’s refusal to accept it, the military

judge would have been unable to accept the stipulation at trial

as a matter of law because the accused would not have been in

agreement with it.   R.C.M. 811(c) (“Before accepting a

stipulation in evidence, the military judge must be satisfied

that the parties consent to its admission.”).      Likewise, had the

convening authority not withdrawn and not attempted to modify

the stipulation, the Government, when asked by the military

judge at trial whether it wished to be bound by the stipulation,

presumably would have expressed its refusal to be bound by a

stipulation with which they no longer agreed.

     Nonetheless, the majority concludes that the cancellation

provision does not encompass the Government’s proposed

modification to address subsequent misconduct because most plea

agreements include an express misconduct provision.      United

States v. Dean, __ M.J. __ (17-18) (C.A.A.F. 2009) (“As such,

the modification proposed by the Government to include recent

acts of alleged misconduct in the stipulation is outside the

scope of the parties’ agreement.       Because the pretrial agreement

does not include a misconduct provision authorized in R.C.M.

705(c)(2)(D), the convening authority cannot rely on alleged

acts of new misconduct to justify its withdrawal.”).      This


                                   3
United States v. Dean, No. 08-0431/AR


agreement did not.   But, here, the majority conflates what is

preferred with what is legally required.   In other words, the

majority suggests that subsequent misconduct can only be

addressed through resort to a subsequent misconduct provision,

even if the language the parties agree upon permits otherwise.

     Of course, the parties to a plea agreement that contains a

stipulation are free to propose or make any modifications they

see fit before the agreement is accepted by the military judge.

R.C.M. 811(a) (“[t]he parties may make an oral or written

stipulation to any fact”) (emphasis added); United States v.

Kazena, 11 M.J. 28, 31 (C.M.A. 1981) (the military judge at a

court-martial is responsible for the immediate supervision of

pretrial agreements in the military justice system).    Even if

one accepts the majority’s position that the promise to enter

into the stipulation was limited to the circumstances of the

charges, any modifications referred to in the cancellation

provision were not so limited.   There is no text in the

agreement limiting any subsequent modification to the

stipulation.

     Moreover, and significantly, this is not a case where the

Government has used its relative bargaining position to compel

an accused to accept an agreement that favors only one side.

The military judge found as a matter of fact that Appellant had

drafted the terms of the agreement, including the cancellation


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United States v. Dean, No. 08-0431/AR


provision.   Neither the United States Army Court of Criminal

Appeals nor the majority has found this finding clearly

erroneous.   Indeed, on its face, the cancellation provision in

question is intended to protect the accused, making express what

is implied in the law:   either party could seek amendment to the

agreement, but the Government could not change the agreement

without Appellant’s consent.

     Unusual facts can make bad law.    The Appellant chose to

enter into a stipulation of fact prior to reaching an agreement

with the convening authority.   In addition, the terms of the

agreement did not include a subsequent misconduct provision as

many agreements do.   This is not wholly surprising as the

language was drafted by defense counsel.   However, even without

an express subsequent misconduct provision, the plain terms of

the agreement clearly permit subsequent and agreed upon

modifications to the stipulation and permit withdrawal by either

party when a proposed modification is not agreed upon.    These

terms are consistent with public policy and are not the product

of Government overreaching.

     In my view, whether the convening authority unilaterally

withdrew or not, when Appellant and his defense counsel refused

the proposed modification to the stipulation, the agreement was

cancelled by operation of its terms.    Any actions on Appellant’s

part from that point forward cannot be considered performance of


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United States v. Dean, No. 08-0431/AR


an agreement that no longer existed.    As a result, I

respectfully dissent.




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