                        UNITED STATES, Appellee

                                    v.

                  William T. LUNDY, Staff Sergeant
                        U.S. Army, Appellant

                              No. 03-0620

                       Crim. App. No. 20000069

       United States Court of Appeals for the Armed Forces

                        Argued March 21, 2006

                        Decided July 18, 2006

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

                                 Counsel

For Appellant: Captain Seth A. Director (argued); Colonel John
T. Phelps II, Colonel Mark Cremin, Lieutenant Colonel Kirsten V.
C. Brunson, Lieutenant Colonel Mark Tellitocci, Major Charles A.
Kuhfahl Jr., Captain Charles L. Pritchard Jr., and Captain
Jeremy W. Robinson (on brief); Major Sean S. Park.

For Appellee: Major William J. Nelson (argued); Lieutenant
Colonel Theresa A. Gallagher (on brief); Colonel Steven T.
Salata and Captain Flor M. Suarez.



Military Judge:   William T. Barto



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lundy, No. 03-0620/AR


     Judge BAKER delivered the opinion of the Court.

     On January 27, 2000, Appellant was convicted in accordance

with his pleas of forcible sodomy with a child under the age of

twelve, forcible sodomy with a child under the age of sixteen,

and six specifications of indecent acts with a child under the

age of sixteen in violation of Articles 125 and 134, Uniform

Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 934 (2000).

He was convicted contrary to his pleas of attempted carnal

knowledge with a child under the age of twelve and attempted

indecent acts with a child over the age of sixteen in violation

of Article 80, UCMJ, 10 U.S.C. § 880 (2000).   The adjudged

sentence included a dishonorable discharge, confinement for

twenty-three years and reduction to the lowest enlisted grade

(E-1).    The sentence approved by the convening authority

included a dishonorable discharge and confinement for eighteen

years.    He also approved the reduction to E-1, but waived the

mandatory forfeitures under Article 58b, UCMJ, 10 U.S.C. § 858b

(2000).   This case is on appeal to this Court a second time.1

     Appellant’s pretrial agreement included a commitment from

the convening authority on behalf of the United States to “defer


1
 See United States v. Lundy (Lundy II), 60 M.J. 52 (C.A.A.F.
2004) (this Court reversing and remanding); United States v.
Lundy (Lundy III), 60 M.J. 941 (A. Ct. Crim. App. 2005)(on
remand, lower court affirming findings of guilty and sentence);
United States v. Lundy (Lundy I), 58 M.J. 802 (A. Ct. Crim. App.
2003) (lower court affirming findings of guilty and sentence).

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United States v. Lundy, No. 03-0620/AR


any and all reductions and forfeitures, until sentence is

approved, suspend any and all adjudged and waive any and all

automatic reductions and forfeitures and pay them to

[Appellant’s] wife to the full extent of the law.”   The question

presented on this appeal is whether the timing of the

Government’s execution of this term was material to the

agreement and therefore to Appellant’s decision to plead guilty.

If so, Appellant argues that under United States v. Perron, 58

M.J. 78 (C.A.A.F. 2003), he is entitled to withdraw his plea as

improvident.

                            BACKGROUND

     After the trial, the convening authority deferred the

adjudged reduction in grade and the mandatory forfeitures that

would have taken effect under Article 58b, UCMJ.   However, the

convening authority did not suspend or waive “any and all

adjudged . . . [and] automatic reductions and forfeitures.”    In

light of an Army regulation that precluded suspending a

mandatory reduction in grade unless a convening authority also

suspended any related confinement or punitive discharge, the

convening authority did not suspend Appellant’s mandatory

reduction.   Dep’t of the Army, Reg. 600-8-19, Personnel-General:

Enlisted Promotions and Reductions para 7-1d (May 1, 2000).

Consequently, upon the convening authority’s action, Appellant

was automatically reduced from grade E-6 to E-1.   In turn,


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United States v. Lundy, No. 03-0620/AR


Appellant’s wife received payments based on the rate of pay of

an E-1 rather than that of an E-6.     Thus, Appellant’s wife

received some of what was bargained for on her behalf, but not

all.

       In Lundy II, because the United States Army Court of

Criminal Appeals in Lundy I determined that the provision at

issue here was a material term, we remanded to that court to

determine:   (a) whether specific performance was possible; and

if not (b) whether there were viable options for alternative

relief under Perron.    60 M.J. at 60.    However, in light of our

conclusion in Perron that the government cannot impose

alternative relief on an unwilling appellant to satisfy a

material term in a pretrial agreement, we also ordered the lower

court to determine whether the timing of any payments was

material to the pretrial agreement.      Id. at 60-61.

       In Lundy III, the Court of Criminal Appeals determined on

remand that specific performance was available.     60 M.J. at 944.

It further concluded that “[a]lthough appellant argues that

specific performance at this late date is, in actuality, a form

of alternative relief because the timing of payments is a

material provision of his pretrial agreement, he has failed to

demonstrate such materiality.”   Id.     The lower court noted that

following Lundy II, the Secretary of the Army’s designee

authorized the convening authority to suspend Appellant’s


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United States v. Lundy, No. 03-0620/AR


automatic reduction without the requirement of also suspending

the related confinement and punitive discharge.    Id. at 943.

Further, after the lower court’s determination in Lundy III, the

Defense Finance and Accounting Service made payment to

Appellant’s wife in October 2005 in the amount of the difference

between the E-1 rate and the E-6 rate of pay for six months with

interest.   At this point, Appellant received the monetary

benefit of his bargain.    However, Appellant now renews his claim

that the timing of payments at the E-6 rate for the six-month

period following the convening authority’s action “played a

large part in his decision to enter into the pretrial

agreement,” and thus his plea was improvident.

                              DISCUSSION

     A pretrial agreement is a contract between the accused and

the convening authority.    See United States v. Acevedo, 50 M.J.

169, 172 (C.A.A.F. 1999).    Therefore, “we look to the basic

principles of contract law when interpreting pretrial

agreements.”   Id.   However, a pretrial agreement is a

constitutional rather than a commercial contract.    Typically, an

accused foregoes his or her constitutional rights, including the

privilege against compulsory self-incrimination, the right to

trial by members, and the right to confront witnesses against

him in exchange for a reduction in sentence or other benefit.

Perron, 58 M.J. at 81.     As a result, when interpreting pretrial


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United States v. Lundy, No. 03-0620/AR


agreements, “contract principles are outweighed by the

Constitution’s Due Process Clause protections for an accused.”

Acevedo, 50 M.J. at 172.    In a criminal context, the government

is bound to keep its constitutional promises, whereas in a

commercial context it might accept the financial consequences of

breach.   Thus, financial remedies are not necessarily an

appropriate or available remedy for breach of a plea agreement.

The right to confrontation, for example, is not redeemable for

interest.

     Interpretation of a pretrial agreement is a question of

law, which we review de novo.   Id.   Whether the government has

complied with the material terms and conditions of an agreement

presents a mixed question of law and fact.   Hometown Financial,

Inc. v. United States, 409 F.3d 1360, 1369 (Fed. Cir. 2005);

Gilbert v. Dep’t of Justice, 334 F.3d 1065, 1071 (Fed. Cir.

2003).    Generally courts look to all of the facts and

circumstances for this determination, and the inquiry is

generally considered a question of fact.   Singer v. West Publ’g

Corp., 310 F. Supp. 2d 1246, 1253 (S.D. Fla. 2004).       In the

context of pretrial agreements involving the constitutional

rights of a military accused, we look not only to the terms of

the agreement, or contract, but to the accused’s understanding

of the terms of an agreement as reflected in the record as a

whole.    Where, as here, the relevant facts are undisputed, the


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United States v. Lundy, No. 03-0620/AR


materiality determination necessarily reduces to a question of

law.   Gilbert, 334 F.3d at 1072; United States v. Green, 1 M.J.

453, 456 (C.M.A. 1976).

       An appellant bears the burden of establishing that there is

a significant basis in law or fact to overturn a guilty plea.

United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991); United

States v. Jordan, 57 M.J. 236, 238 (C.A.A.F. 2002).      Thus, in

this context, Appellant bears the burden of establishing that a

term or condition of the agreement was material to his decision

to plead guilty, that the Government failed to comply with that

term or condition, and therefore, that his plea was improvident.

       The term in dispute obligated the convening authority to

“suspend any and all adjudged and waive any and all automatic

reductions and forfeitures, and pay them to [Appellant’s] wife

to the full extent of the law.”   The agreement is silent as to

the timing of performance.   However, by law this event could not

occur sooner than the convening authority’s action.      As a matter

of practice, and in the absence of a contrary agreement, such

waivers of forfeitures and suspensions are ordinarily executed

at the time of the convening authority’s action.   Article 57,

UCMJ, 10 U.S.C. § 857 (2000).

       The record reflects the following additional facts:

          Appellant was sentenced on January 27, 2000.




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United States v. Lundy, No. 03-0620/AR


        The convening authority deferred enforcement of
        automatic forfeitures until he could act on the
        sentence.

        The convening authority took action on May 26, 2000, but
        did not waive or suspend the automatic reduction because
        of provisions contained in a departmental regulation.

        For the six-month period following the convening
        authority’s action, Appellant’s wife received the
        benefit of the waived forfeitures at the E-1 rate. She
        also received $6,845 of transitional compensation for
        this same period of time.

        In March of 2001, Appellant became aware of the fact
        that his wife had only received the reduced benefit.

        On June 19, 2003, the Court of Criminal Appeals issued
        its first opinion in this case upholding the convening
        authority’s action in not waiving or suspending the
        automatic reduction. (Lundy I.)

        On June 24, 2004, this Court issued its opinion
        remanding to the lower court for a determination on the
        issue of specific performance. (Lundy II.)

        On January 3, 2005, the convening authority received an
        exception to the departmental regulation, which allowed
        him to suspend the automatic reduction previously
        approved in his prior action.

        On March 10, 2005, the Army Court of Criminal Appeals
        issued its second opinion in the case. (Lundy III.)

        On October 7, 2005, Appellant’s wife received the
        remainder of the benefit due her under the pretrial
        agreement, i.e., the difference between the E-1 and E-6
        rate of pay for six months with interest.

     This is a difficult case, in part, because there is an

absence of information as to the relevance of timing at the time

the agreement was concluded.   In the abstract, the absence of

any discussion during the plea inquiry regarding timing would



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United States v. Lundy, No. 03-0620/AR


seem to support a conclusion that the timing of the payments was

not a material condition to the agreement.   However, as noted

above, in the ordinary course of military practice the

suspension or waiver of “any and all reductions and forfeitures”

would ordinarily occur at the time of the convening authority’s

action.    Thus, absent language to the contrary, we think it fair

to imply as a term of Appellant’s agreement that it was

contemplated that the waived forfeiture of pay at the E-6 rate

was to accrue to Appellant’s wife at the time the convening

authority acted and that he could expect that this would happen

at the time he pled guilty.

     In our view, this is Appellant’s strongest argument that

the term was material to his decision to plead guilty.    The

purpose behind the waiver of forfeitures is to provide for an

accused’s dependents.   The law requires that dependents receive

such waived forfeitures.   Article 58b, UCMJ.   It is intuitive

that military members would want their dependents to benefit

from the present value of any waiver of forfeitures.   However,

the law also provides, in context, for transitional assistance

to the abused dependents of a servicemember convicted at court-

martial.   Dep’t of Defense, Instr. 1342.24, Transitional

Compensation for Abused Dependents para. 2.2.3. (May 23, 1995,

Administrative Reissuance Incorporating Change 1, Jan. 16,

1997).    As a result, it is not necessarily the case that an


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United States v. Lundy, No. 03-0620/AR

accused’s agreement to plead guilty in exchange for a waiver of

forfeitures and suspension of reductions is intended to provide

for the immediate financial needs of a member’s dependents as

opposed to contributing to the dependents’ intermediate or

longer term financial needs.      More to the point, timing would

always be a material condition to an agreement to waive

forfeitures and reductions, absent contrary language.      This was

neither the lower court’s conclusion in this case, nor this

Court’s conclusion in Perron.

     In Perron, we looked beyond the terms of the agreement, to

the record as a whole, for evidence that the timing of execution

of the agreement’s financial terms was material to the accused’s

decision to plead guilty.      58 M.J. 85.   Thus, in Perron, we drew

from defense counsel’s colloquy with the military judge stating

that the appellant’s specific understanding was that the

suspension of forfeitures would provide financial support during

his sixty-day period of confinement.      See id.   When this did not

occur, Perron went into a no-pay status and his family received

no money.   See id.      Defense counsel then sent a clemency request

to the convening authority stating “Please consider BM2

[Boatswain’s Mate Second Class] Perron’s family in this matter.

The family cannot survive financially without the aid of BM2

Perron.”    Id. at 79.    Further, defense counsel then requested

that the convening authority grant relief from the pay


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United States v. Lundy, No. 03-0620/AR

provisions or immediately release Perron from jail in order to

gain immediate employment and provide financial relief for his

family.    Id.

     Appellant has not met his burden of establishing similar

evidence that timing was material in this case.   The following

factors while not determinative, inform this conclusion.

     First, the pivotal clause in the plea agreement contained

the phrase “to the full extent of the law.”   This suggests

emphasis on the amount of payment and not necessarily the speed

or timing of payment.   “To the full extent of the law” is a term

of art designed to maximize payment, but not necessarily

expedite process.   The term implicitly concedes that the parties

are not in agreement, or have yet to conclude, the specific

parameters of the agreed-upon benefit.

     This conclusion is supported by the military judge’s

inquiry into this term during the providence inquiry:

     MJ: What does “To the full extent as allowed by law” mean,
     [defense counsel]?

     DC: Sir, as I understand the state of the law right now,
     that would be six months from the approval. However, sir,
     I wanted it to be to the full extent of the law because it
     may change, sir.

     MJ:    The law may change.

     DC:    But I believe it’s six months.

     MJ:    Government concur?




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United States v. Lundy, No. 03-0620/AR

        TC: Sir, the government’s belief is that it’s six months.
        That’s correct.

Defense counsel’s response emphasizes the duration of payment,

rather than the immediacy or timing of payment, and both counsel

reflect uncertainty as to the scope of the law.

        In Lundy II, we observed that the regulatory impediment

precluding the convening authority from suspending the reduction

resulted from a departmental action rather than a statutory

mandate.    60 M.J. at 58.   As such, the Army was free to modify

the regulation, create an exception, or grant a waiver.    Id.

But such steps, even if immediately pursued, could take

substantial bureaucratic time.    This undercuts Appellant’s

argument that the immediacy of the payments was material to his

decision to plead guilty.

        Second, the waiver of forfeitures in Appellant’s agreement

accrued to the benefit of a third party, in this case,

Appellant’s wife.    Regarding this third-party benefit, the

convening authority began performance when he deferred the

forfeitures and reduction immediately after the trial.    Since

the convening authority’s ultimate action failed to suspend any

reduction, the result was an incomplete or partial performance

of the promises that would complete the benefit to Appellant’s

wife.




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United States v. Lundy, No. 03-0620/AR

     However, Appellant has not demonstrated that the third-

party beneficiary complained.   More importantly, because the

constitutional bargain was with Appellant and not his wife, the

record reflects that Appellant was not aware until March 2001,

that his wife did not receive the full benefit of his bargain.

Thus, unlike the situation in Perron, here Appellant did not

complain about the convening authority’s failure to act until

some thirteen months after the fact.   Perron, 58 M.J. 79-80.

This negates Appellant’s assertion that the timing of the

payments was material to his decision to plead guilty because

Appellant appears not to have been concerned whether or not his

wife had received the benefit of the agreement at the time it

was due.

     During the appellate process, Appellant submitted several

affidavits, which were considered by the court below.   See Lundy

I, 58 M.J. at 807 n.12; Lundy III, 60 M.J. at 942-43.      In the

affidavit of October 22, 2004, Appellant suggests that the

belated payment to his wife of the difference between E-1 and E-

6 pay is no longer of value to his family.    He claims that his

wife has left him for another man and attributes this, in part,

to “the need for additional support which had been denied them

by the actions taken in regards to my pay.”   He further

indicates that his daughter (the victim of his offenses) intends

on moving out of the household with his wife to live with


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United States v. Lundy, No. 03-0620/AR

Appellant’s mother.    Appellant’s logic is that any benefit

provided his wife at this point would not benefit his daughter.

This may be the case.   However, the appellate question is not

whether circumstances have changed such that Appellant’s family

might benefit less from the terms of the agreement, but whether

at the time of the agreement, the condition now in dispute was

material to his decision to plead guilty.

     To return to where we began our analysis, these factors do

not demonstrate that timing was necessarily irrelevant to

Appellant’s decision to plead guilty.     But in light of these

facts, Appellant has not met his burden of demonstrating that

the timing of the payment to his wife of the difference between

the two pay grades with interest was material to his agreement

to plead guilty.   Therefore, we agree with the Court of Criminal

Appeals that the belated payment to Appellant’s wife is not

alternative relief, but constitutes specific performance of the

original pretrial agreement.

                               DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Lundy, No. 03-0620/AR


     EFFRON, Judge (concurring in part and in the result):

     I agree with the majority that Appellant has failed to

carry the burden of demonstrating that there is a significant

basis in law to overturn his plea.   I write separately to focus

on the Government’s offer to provide full payment plus interest

to cover the delay in the payment that is the subject of the

present appeal.    Appellant has failed to demonstrate that the

Government’s offer does not constitute an adequate remedy under

the circumstances of this case.

     As the majority notes, it is “fair to imply as a term of

Appellant’s agreement that it was contemplated that the waived

forfeiture of pay at the E-6 rate was to accrue to Appellant’s

wife at the time the convening authority acted and that

Appellant could expect that this would happen at the time he

pled guilty.”   United States v. Lundy, 63 M.J. __, __ (9)

(C.A.A.F. 2006).   “It is intuitive that military members would

want their dependents to benefit from the present value of any

waiver of forfeitures.”   Id. at __ (9).

     In that context, factors such as the availability of

transitional compensation and the request for payments “to the

full extent of the law,” see id. at __ (9–11), do not

demonstrate that Appellant contemplated that the agreement would

permit delayed payments at the E-6 level.   Such factors

underscore that financial assistance to the family was a
United States v. Lundy, No. 03-0620/AR


significant factor in the decision to plead guilty, but do not

reflect that the parties contemplated a significant delay in the

timing of the agreed-upon payments.    While there may be cases in

which the availability of transitional compensation and

possibility of changes in the law would permit us to discount

the importance of timing, the record here does not demonstrate

that this is such a case.

     By its actions, the Government has recognized that timing

was an important component of the agreement.   The Government has

agreed not only to provide the full payment at the E-6 level,

but it has also agreed to pay interest to remedy the untimely

payment.   Interest payments are a classic means of compensating

one party for the other party’s delay in making payments.

Restatement (Second) of Contracts § 354(1) (1981).    In that

light, we may proceed on the basis that immediate payments were

contemplated by Appellant, but that does not resolve the

question of whether the delay requires nullification of the

agreement.

     There are a number of ways to address the government’s

failure to perform its responsibilities under a plea agreement:

     (1) Require specific performance by the government or

permit withdrawal from the agreement.    See United States v.

Perron, 58 M.J. 78, 84 (C.A.A.F. 2003) (citing Santobello v. New

York, 404 U.S. 257, 263 (1971)).


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United States v. Lundy, No. 03-0620/AR


     (2) Provide for alternative relief, with the consent of the

Appellant.   See id. at 86 (holding that an alternative remedy

may not be imposed on an unwilling defendant).

     (3) Provide an adequate remedy to cure the material breach

of the agreement.   See, e.g., United States v. Garcia, 698 F.2d

31, 37 (1st Cir. 1983) (resentencing defendant to time already

served where other remedies would be meaningless or infeasible);

Cooper v. United States, 594 F.2d 12, 20-21 (4th Cir. 1979)

(ordering specific enforcement “to the extent possible” of a

plea proposal withdrawn by the government, where the lapse of

time and intervening circumstances compelled the court to

disregard some obligations of the government and defendant).

     The term “specific performance” does not require the

government to comply with each literal detail of the agreement

when there is an adequate remedy.     As we noted in Perron,

“[w]here the failed term in the agreement involves pure economic

concerns, finding relief of equal value is possible.”    58 M.J.

at 85.   Even when the term of an agreement involves a non-

economic benefit, literal performance is not necessarily

required if the level of performance possible at a later date

constitutes an adequate remedy.   See, e.g., Garcia, 698 F.2d at

37; Cooper, 594 F.2d at 20-21.    In that regard, there is a

distinction between:   (1) alternative relief, which involves

creation of a new agreement requiring the consent of the


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United States v. Lundy, No. 03-0620/AR


parties; and (2) an adequate remedy, which does not require any

further agreement.

      When the issue on appeal involves delayed timing of

performance by the government, the question of whether belated

performance constitutes an adequate remedy must be assessed on a

case-by-case basis.   The common law of contracts provides an

important source of authority in this regard.   The Restatement

(Second) of Contracts, states that among the factors to be

considered in assessing the adequacy of a remedy proposed to

cure a contractual breach are the extent to which the breach may

deprive a party of an expected benefit, whether a party can be

adequately compensated for the lost benefit, the likelihood that

the breaching party will perform a remedy, the breaching party’s

adherence to standards of good faith and fair dealing, and

whether delay precludes reasonable substitute arrangements.

Restatement (Second) of Contracts, §§ 241, 242 (1981).   Contract

law, however, is helpful but not determinative.   The ultimate

assessment must also reflect due process considerations.    See

Perron, 58 M.J. at 85-86 (stating that the remedy for a material

breach of a pretrial agreement must corroborate the

voluntariness of the guilty plea).

      In Perron, the lower court concluded that the timing of the

payments was addressed on the face of the agreement.   58 M.J. at

85.   In that context, with the breach of the agreement as to


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United States v. Lundy, No. 03-0620/AR


timing at issue, we concluded that the government’s offer of

belated payments plus interest could not be treated as specific

performance, but instead amounted to alternative relief, which

could be substituted only with the consent of the appellant.

See id. at 85-86.

     In the present case, the agreement on its face does not

address timing.   Our prior decision in this case expressly left

open the question of whether a belated payment could constitute

specific performance.   United States v. Lundy, 60 M.J. 52, 60-61

(C.A.A.F. 2004) (remanding to determine whether a delayed

implementation of a suspension would be considered specific

performance).   Here, the agreement focused on the provision of

financial benefits to his dependents.    In this context,

Appellant must not only show the adverse effects of belated

payments -- a matter addressed in his filings with our Court --

but he must also demonstrate that full payments plus interest

would not provide an adequate remedy.

     Appellant’s dependents can now receive a substantial sum of

money from the Government, including interest covering the time

during which payments were delayed.   Appellant has failed to

demonstrate that the payment of substantial sums to his

dependents, at this time, would not constitute an adequate

remedy for the Government’s breach.   Accordingly, he has not met




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United States v. Lundy, No. 03-0620/AR


his burden of showing that there is a significant basis in law

for overturning his plea.




                                6
