              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                              No. ACM S32357
                          ________________________

                             UNITED STATES
                                 Appellee
                                      v.
                        Brandon A. WITHEE
              Airman First Class, U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 15 February 2017
                          ________________________

Military Judge: Joseph S. Imburgia (sitting alone).
Approved sentence: Bad-conduct discharge, confinement for 45 days,
and reduction to E-1. Sentence adjudged 20 October 2015 by SpCM
convened at Joint Base Lewis-McChord, Washington.
For Appellant: Major Johnathan D. Legg, USAF.
For Appellee: Captain Tyler B. Musselman, USAF; Gerald R. Bruce,
Esquire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge JOHNSON delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge SPERANZA joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

JOHNSON, Judge:
   A special court-martial composed of a military judge sitting alone found
Appellant guilty in accordance with his pleas of one specification of wrongfully
using 3,4 methylenedioxymethamphetamine (MDMA) on divers occasions and
                   United States v. Withee, No. ACM S32357


one specification of wrongfully using psilocybin on divers occasions, both in vi-
olation of Article 112a, UCMJ, 10 U.S.C. § 912a. The court-martial sentenced
Appellant to a bad-conduct discharge, confinement for 45 days, and reduction
to E-1. The convening authority approved the sentence as adjudged but de-
ferred Appellant’s reduction in grade until he took action on the court-martial
and waived the automatic forfeiture of Appellant’s pay pursuant to Article 58b,
UCMJ, 10 U.S.C. § 858b, for the benefit of Appellant’s spouse. 1
    Before us, Appellant raises a single assignment of error: Whether a new
post-trial process is required because his pretrial agreement with the conven-
ing authority required him to waive his right to submit clemency, in violation
of Rule for Courts-Martial (R.C.M.) 705(c)(1)(B). We answer in the affirmative
and order new post-trial processing.

                                I. BACKGROUND
    Within a year of arriving at his first duty station, on multiple occasions
Appellant used MDMA and mushrooms containing psilocybin on and off base
with other Airmen. Appellant entered a pretrial agreement whereby the con-
vening authority agreed to withdraw and dismiss with prejudice one specifica-
tion of conspiracy to use MDMA and two specifications of making false official
statements in violation of Articles 81 and 107, UCMJ, 10 U.S.C. §§ 881, 907.
In addition, the convening authority agreed to disapprove any sentence to con-
finement in excess of 45 days if a bad-conduct discharge was adjudged, or to
disapprove any confinement in excess of 90 days if no bad-conduct discharge
was adjudged. Finally, the convening authority agreed to disapprove any ad-
judged forfeiture of pay and to waive any automatic forfeiture of pay that would
apply under Article 58b, UCMJ, for the benefit of Appellant’s dependents. In
return, Appellant agreed, inter alia, to plead guilty to using MDMA and psilo-
cybin on divers occasions, to be tried by a military judge alone, and to “waive
[his] clemency rights.”
    At trial, the military judge clarified that trial defense counsel and Appel-
lant understood this waiver of “clemency” to refer specifically to Appellant’s
right to submit matters to the convening authority pursuant to R.C.M. 1105.
The military judge found Appellant knowingly and voluntarily waived these
“clemency rights,” accepted the pretrial agreement, and accepted Appellant’s
guilty plea. Later in the trial, after sentencing argument by counsel but prior
to announcement of the sentence, the military judge reviewed post-trial and
appellate rights with Appellant. The military judge confirmed Appellant’s un-
derstanding that pursuant to the pretrial agreement he had waived his right

1Appellant’s pretrial agreement required the convening authority to waive the auto-
matic forfeiture of pay, but not to defer the reduction in rank.


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                      United States v. Withee, No. ACM S32357


to submit matters in clemency to the convening authority. In addition, the writ-
ten post-trial rights advisement signed by Appellant and trial defense counsel
stated, under a section entitled “Clemency,” Appellant had waived his right to
submit matters to the convening authority pursuant to the pretrial agreement.
    After announcing the sentence, but before reviewing the quantum portion
of the pretrial agreement, the military judge recommended the convening au-
thority “consider” deferring automatic forfeitures and the adjudged reduction
in rank until action, and at action waiving the automatic forfeitures, for the
benefit of Appellant’s spouse. 2 After trial, but before being served with the staff
judge advocate’s recommendation (SJAR) to the convening authority, trial de-
fense counsel submitted a request that the convening authority waive Appel-
lant’s automatic forfeiture of pay for the benefit of Appellant’s spouse, in ac-
cordance with the pretrial agreement. In addition, although not required by
the pretrial agreement, trial defense counsel requested Appellant’s reduction
in rank be deferred until action as “recommended” by the military judge. Trial
defense counsel’s request added that pursuant to the pretrial agreement “the
Defense will not be submitting further matters in clemency.”
    In his written advice to the convening authority on the defense request, the
staff judge advocate (SJA) acknowledged the pretrial agreement required the
convening authority to waive automatic forfeitures, and that the military judge
“recommended” both deferral and waiver of automatic forfeitures and deferral
of Appellant’s reduction in rank. The SJA recommended the convening author-
ity approve both the requested deferral and waiver of forfeitures and deferral
of the reduction. The convening authority did so.
   The SJA later prepared his SJAR to guide the convening authority’s action
on the court-martial and served it on the Defense. In response, trial defense



2   After announcing the sentence, the military judge stated:
          I make the following recommendations. One, that the convening au-
          thority consider, and the convening authority can do whatever the con-
          vening authority wants to do, but, that the convening authority con-
          sider deferring automatic forfeitures until action, and then waive them
          at action, for the benefit of [Appellant’s] wife. And then, also, I recom-
          mend the convening authority consider, and again “consider”—I’m not
          saying the convening authority should, but at least consider deferring
          [Appellant’s] reduction in grade until action, also for the benefit of [Ap-
          pellant’s] wife.
Thus the military judge’s recommendations fell short of a definite recommendation for
clemency, as opposed to a recommendation to consider clemency. However, this dis-
tinction was generally ignored when participants in the process subsequent referred
to the military judge’s recommendations.


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                   United States v. Withee, No. ACM S32357


counsel submitted a written waiver of “further clemency proceedings,” again
specifically referencing the pretrial agreement.

                                II. DISCUSSION
   Whether a term of a pretrial agreement violates R.C.M. 705(c)(1)(B) is a
question of law we review de novo. United States v. Tate, 64 M.J. 269, 271
(C.A.A.F. 2007).
    R.C.M. 705(c)(1)(B) provides in pertinent part: “A term or condition in a
pretrial agreement shall not be enforced if it deprives the accused of . . . the
complete and effective exercise of post-trial and appellate rights.” The rule’s
prohibition on the restriction of an accused’s post-trial rights includes re-
strictions on his right to submit matters to the convening authority pursuant
to Article 60(b)(1), UCMJ, 10 U.S.C. § 860(b)(1), and R.C.M. 1105. See Tate, 64
M.J. at 271.
    Appellant asserts the term of his pretrial agreement requiring him to waive
his “clemency rights” was prohibited by R.C.M. 705(c)(1)(B) and the holding in
Tate. The Government concedes the term is unenforceable. We agree. As inter-
preted by the military judge, Appellant, and trial defense counsel, this provi-
sion deprived Appellant of the “complete and effective exercise” of his post-trial
right to submit matters to the convening authority under R.C.M. 1105 and fell
squarely within the prohibition of R.C.M. 705(c)(1)(B). See id.
    The more difficult question is what, if any, remedy Appellant is entitled to
in light of this error. The presence of an impermissible term in a pretrial agree-
ment is not necessarily fatal to the result of the court-martial. See id. at 272.
In some cases, such a term may be nullified while leaving the remainder of the
agreement intact. Id. We find this case presents such a situation. The imper-
missible term was laid upon Appellant and inured to the benefit of the Govern-
ment; clearly it was not an inducement for Appellant to enter the agreement.
Nullifying it will not deprive Appellant of any benefit of the agreement he bar-
gained for. Our conclusion is reinforced by the fact that before us Appellant
neither requests nor contends he is entitled to a new trial.
   What R.C.M. 705(c)(1)(B) does explicitly require is that the impermissible
term “not be enforced.” Appellant contends he is entitled to a new post-trial
process in which he is free to exercise his R.C.M. 1105 rights, unencumbered
by the pretrial agreement. However, the Government contends Appellant is
entitled to no relief, and advances two arguments.
   First, the Government essentially argues the impermissible term was not
actually enforced against Appellant because he exceeded its terms. The Gov-
ernment points out trial defense counsel, in light of the military judge’s recom-
mendations at sentencing, requested not only waiver of automatic forfeitures,

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                   United States v. Withee, No. ACM S32357


which was required by the pretrial agreement, but also deferral of the reduc-
tion in rank until action, which was not required by the pretrial agreement.
Because Appellant did seek clemency beyond the terms of the pretrial agree-
ment, the Government argues, he was not in fact bound by the clemency
waiver. Therefore, this court can simply strike the unenforceable term and give
effect to Appellant’s subsequent waiver of the opportunity to submit additional
clemency matters beyond the deferral of the reduction in rank and the deferral
and waiver of automatic forfeitures.
     We are not persuaded. Appellant was repeatedly advised that by his pre-
trial agreement he waived his right to submit matters to the convening author-
ity. He repeatedly expressed his understanding of this waiver to the military
judge. There is no indication in the record Appellant was ever disabused of that
belief. Trial defense counsel’s opportunistic capitalization on the military
judge’s recommendation did not nullify the “no clemency” provision. Arguably,
it contravened Appellant’s commitments under the pretrial agreement, but the
Government did not react to it as a violation. Regardless, Appellant’s indica-
tions through counsel—both in his written request for waiver of forfeitures and
in response to the SJAR—that he would forego his right to submit additional
clemency matters specifically referenced the pretrial agreement. It is apparent
trial defense counsel and Appellant believed Appellant had forfeited the “com-
plete and effective” exercise of his post-trial rights, and they acted on that be-
lief.
    The Government’s second argument is more compelling—that Appellant is
entitled to no relief because he has made no colorable showing of possible prej-
udice. Essentially, the Government contends the impermissible pretrial agree-
ment term should be analyzed in the same manner as a faulty SJAR or similar
“error effect[ing] clemency processing.” In such cases, the Court of Appeals for
the Armed Forces (CAAF) has required an appellant to not only demonstrate
error, but to make some “colorable showing of possible prejudice in terms of
how the omission potentially affected an appellant’s opportunity for clemency”
in order to secure relief. United States v. Scalo, 60 M.J. 435, 437 (C.A.A.F.
2005).
    However, the essential distinction between a faulty SJAR or similar error
impacting an appellant’s clemency and an illegal pretrial agreement term is
the specific mandate of R.C.M. 705(c)(1)(B) that such a term “shall not be en-
forced.” The more apt precedent in support of the Government’s position as to
how that requirement applies to Appellant’s case is our superior court’s deci-
sion in United States v. McLaughlin, 50 M.J. 217 (C.A.A.F. 1999). In that case,
the CAAF addressed an impermissible pretrial agreement term that required
the appellant to waive a speedy trial issue. Id. at 218. As in the instant case,
the impermissible term had arguably already been performed by the appellant.


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                    United States v. Withee, No. ACM S32357


Yet the CAAF denied relief because it found insufficient information in the
record that a colorable speedy trial claim existed. Id. In effect, the CAAF con-
cluded the impermissible speedy trial waiver had not been enforced in violation
of R.C.M. 705(c)(1)(B) because there was insufficient evidence of a colorable
speedy trial issue the defense would have or could have raised. Id. at 219; see
also United States v. Forrester, 48 M.J. 1, 4 (C.A.A.F. 1998) (denying relief
based on an overly broad “waiver of defenses” provision where there was no
showing appellant was actually precluded from raising a defense).
    Appellant’s case is different. Trial defense counsel specifically cited the pre-
trial agreement as the reason why no additional clemency was submitted to
the convening authority. Unlike a speedy trial claim or legal defense, which
require a specific application of law to facts, convening authority clemency is a
highly discretionary process, both in terms of what the convicted individual
may submit and the reasons why a convening authority may grant it. See
R.C.M. 1105(b), 1107(b)(1); Scalo, 60 M.J. at 437 (noting the convening author-
ity’s “broad discretion” in granting clemency). In this case, we are satisfied the
appellant did not submit additional clemency because the pretrial agreement
purportedly prevented him from doing so. Therefore, it was enforced contrary
to R.C.M. 705(c)(1)(B). Any result short of new post-trial processing results in
the unenforceable term having been enforced and fails to vindicate the rule. 3
    The Government cites the CAAF’s opinion in Tate and unpublished deci-
sions of our sister service court where impermissible restrictions on the appel-
lants’ post-trial rights were stricken as void without granting a new post-trial
process or other relief. These cases are easily distinguished. In Tate, the CAAF
addressed a pretrial agreement term that required the appellant “waive both
mandatory and discretionary consideration by the Navy Clemency and Parole
Board for a period of twenty years . . . and decline clemency or parole if offered
during that period.” 64 M.J. at 271. The CAAF found this provision unenforce-
able under R.C.M. 705(c)(1)(B) as infringing the complete and effective exercise
of the appellant’s post-trial and appellate rights. Id. at 272. The CAAF as-



3 We note the pretrial agreement did not contain a “severability clause” whereby the
parties specifically agree that if any portion of the agreement were found invalid or
unenforceable, the remaining provisions would remain in force. However, the Govern-
ment concedes the clemency restriction is unenforceable but argues the balance of the
pretrial agreement and the pleas, findings, and sentence may be upheld; for his part,
Appellant does not seek to undo the pretrial agreement itself but only requests new
post-trial processing with the opportunity to submit matters to the convening author-
ity. Therefore, the parties agree the offending provision is severable from the remain-
der of the agreement, and we need not inquire further as to whether either party seeks
to withdraw from the agreement.


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                   United States v. Withee, No. ACM S32357


sessed whether the “impermissible term may be treated as null without im-
pairing the remainder of the agreement.” Id. Considering the positions of the
parties and the facts and circumstances of the particular case, the CAAF de-
clared the offending provisions void, upheld the balance of the agreement, and
affirmed the findings and sentence. Id. at 272–73.
    In United States v. Evans, No. 200600806, 2008 CCA LEXIS 299 (N-M. Ct.
Crim. App. 12 Aug. 2008) (unpub. op.) and United States v. Framness, No.
200500152, 2007 CCA LEXIS 150 (N-M. Ct. Crim. App. 26 Apr. 2007) (unpub.
op.), the Navy-Marine Corps Court of Criminal Appeals (NMCCA) addressed
provisions similar to those in Tate requiring the appellants to forego the oppor-
tunity for clemency or parole for some period of years from the dates of their
trials. In each case, the NMCCA declared the terms unenforceable in light of
Tate, but, like the CAAF in Tate, found the impermissible terms could be
stricken without upsetting the balance of the agreements or the pleas, or grant-
ing other relief. Evans, 2008 CCA LEXIS 299, at *9–10; Framness, 2007 CCA
LEXIS 150, at *21. In each of these cases, the CAAF and the NMCCA dealt
with purported restrictions on the appellants’ future opportunities to secure
relief from the Navy Clemency and Parole Board. Tate, 64 M.J. at 271; Evans,
2008 CCA LEXIS 299, at *9; Framness, 2007 CCA LEXIS 150, at *21. Thus the
courts could avoid enforcement of the impermissible terms simply by decreeing
them null and void, without impacting the balance of the agreements or re-
quiring a new post-trial process. Appellant’s case is fundamentally different in
that the impermissible requirement has already been enforced.
    The Government’s various arguments as to why Appellant would be un-
likely to secure additional relief from the convening authority in this case fail
to address the essential defect: that an illegal term of Appellant’s pretrial
agreement was enforced against him. The Government had not only the oppor-
tunity but the responsibility to avoid inserting such a term in the agreement.
Regardless of its origin, the enforcement of such a term cannot be permitted,
and a new post-trial process is required to satisfy R.C.M. 705(c)(1)(B) under
the circumstances of this case.

                                III. CONCLUSION
    Paragraph 2.g. of the pretrial agreement between Appellant and the con-
vening authority is void. The record of trial is returned to The Judge Advocate
General for remand to the convening authority for new post-trial processing
consistent with this opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e). Thereaf-
ter, the record of trial will be returned to this court for completion of appellate




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                 United States v. Withee, No. ACM S32357


review under Article 66, UCMJ, 10 U.S.C. § 866.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




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