                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                  Keith L. WILLIAMS, Jr., Specialist
                         U.S. Army, Appellant

                               No. 04-0208

                        Crim. App. No. 20020327


       United States Court of Appeals for the Armed Forces

                        Argued October 13, 2004

                       Decided December 10, 2004

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

                                  Counsel

For Appellant: Captain Eric D. Noble (argued); Colonel Robert
D. Teetsel, Colonel Mark Cremin, Lieutenant Colonel Mark
Tellitocci, Major Allyson G. Lambert, and Captain Craig A.
Harbaugh (on brief).

For Appellee: Captain Mason S. Weiss (argued); Colonel Steven
T. Salata, Lieutenant Colonel Theresa A. Gallagher, Lieutenant
Colonel Mark L. Johnson, and Major Mark A. Visger (on brief).

Military Judge:    Gary W. Smith


  This opinion is subject to editorial correction before final publication.
United States v. Williams, Jr., No. 04-0208/AR


      Judge ERDMANN delivered the opinion of the Court.

      Specialist Keith L. Williams, Jr., was charged with two

specifications of larceny, seven specifications of forgery and

one specification of wrongfully opening mail, in violation of

Articles 121, 123 and 134, Uniform Code of Military Justice, 10

U.S.C. §§ 921, 923 and 934 (2000) respectively.           Williams

submitted an offer to plead guilty.         The convening authority

accepted the offer and the parties entered into a pretrial

agreement.

      At trial the military judge allowed the Government to

withdraw from the pretrial agreement.            Williams subsequently

entered pleas of guilty to all charges and specifications and

was convicted on the basis of his pleas.           He was sentenced to a

bad-conduct discharge, seven months confinement, forfeiture of

all pay and allowances, reduction to pay grade E-1, and a fine

of $2,300.00.

      In his appeal to the United States Army Court of Criminal

Appeals, Williams claimed that the convening authority should

not have been allowed to withdraw from the pretrial agreement.

After receiving briefs, the Court of Criminal Appeals ordered

the parties to submit affidavits.         Following receipt of the

affidavits, the Court of Criminal Appeals affirmed the findings

and sentence in a per curiam decision.

      We granted review of the following issue:



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      WHETHER THE TRIAL COUNSEL AND STAFF JUDGE ADVOCATE
      UNLAWFULLY BREACHED THE PRETRIAL AGREEMENT BECAUSE
      APPELLANT WAS NOT AFFORDED A REASONABLE OPPORTUNITY TO
      COMPLY WITH THE RESTITUTION PROVISION AFTER HE WAS GIVEN
      NOTICE OF THE AMOUNT OF SAID RESTITUTION AND BECAUSE THE
      CONVENING AUTHORITY DID NOT PERSONALLY MAKE THE DECISION TO
      WITHDRAW.

We hold that Rule for Courts-Martial [R.C.M.] 705(d)(4)(B)

provided a proper basis for the Government’s withdrawal and

therefore affirm the decision of the Court of Criminal Appeals.

                                 BACKGROUND

      Williams’ difficulties began when a Government travel card

issued to another service member was inadvertently placed in his

mailbox.   Williams obtained a personal identification number for

the card and used the card to purchase various items from the

commissary and to make cash withdrawals.         He offered to plead

guilty and enter into a stipulation of fact.        The agreement

contained a separate term that required Williams to reimburse

the victims “once those individuals and the amounts owed have

been ascertained.”     In return, the convening authority would

disapprove any confinement in excess of six months.        The

convening authority agreed to the offer and the pretrial

agreement was effectuated.

      Several days prior to trial there were discussions between

the trial counsel and Williams’ defense counsel concerning the

restitution provision.      Williams’ defense counsel indicated that

Williams might not be able to make restitution before trial.



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The Government’s position was that Williams was required to make

restitution before entering his plea.

        On the day of trial, Williams had not made restitution and

the Government informed the military judge that because of that

failure, it was withdrawing from the pretrial agreement.

Williams moved for specific performance of the agreement,

arguing that performance had commenced because he had already

entered into the stipulation of fact and had not breached any

material portion of the agreement.         In response, the Government

conceded that as a result of its withdrawal from the pretrial

agreement, it would also have to withdraw from the stipulation

of fact.    Williams’ defense counsel acknowledged that the

stipulation would not be entered into evidence or otherwise

used.    The military judge then ruled:

        All right. Well, I do find that the government is free at
        this point under R.C.M. 705, the convening authority is
        free to withdraw from the pretrial agreement based upon
        failure to fulfill a material promise or condition in the
        agreement. It would have been much better had the -- had
        it been spelled out in writing in the Offer to Plead
        Guilty, that it was before trial and not -- then we
        wouldn't have this issue at all. So, I do find that the
        prosecution is free to -- the convening authority is free
        under that rule to withdraw from the pretrial agreement.

        Following that ruling the defense asked "to note for the

record" that there had been no proffer or evidence from the

Government as to the victims and amounts at issue.        The trial

counsel advised the military judge that the Bank of America was

the victim and that the Government had been "working with" the


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United States v. Williams, Jr., No. 04-0208/AR


defense to contact representatives of the bank "to figure out a

way to pay them."     The military judge asked the Government what

the specific amount of the restitution was, at which point trial

counsel advised that "just going with the amount of larceny, we

find the total of $2,302.01."        That amount corresponds with the

amount set forth in the charge sheet.

      After confirming that Williams could not "comply with that

term at this point," the military judge stated that he was

adhering to his ruling and that Williams' motion to compel

specific performance of the pretrial agreement was denied.

      Williams then pleaded guilty without the benefit of a

pretrial agreement and was sentenced to a bad-conduct discharge,

seven months confinement, forfeiture of all pay and allowances,

reduction to pay grade E-1, and a fine of $2,300.00.       The

convening authority approved the sentence.       Had the pretrial

agreement been in effect, he would have been obligated to

disapprove confinement in excess of six months.       As there were

no limitations in the agreement as to any other aspect of

Williams' sentence, it is the difference between six and seven

months that serves as the basis for Williams' appeal.

                                 DISCUSSION

      Williams has not asked us to reject his guilty plea.

Rather, he has asked us for a one month reduction in the

duration of his confinement, consistent with the terms of the



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disputed pretrial agreement.       He also asks us to set aside his

fine, which closely approximates the amount of his larcenies.

As his claim involves an interpretation of the pretrial

agreement, our review here is de novo.           United States v.

Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999).

     Under R.C.M. 705(d)(4)(B), the convening authority may

withdraw from a pretrial agreement:

      (1) at any time before an accused begins performance of his
      or her promises under the agreement;

      (2) upon the failure of an accused to fulfill any material
      promise or condition in the agreement;

      (3) when inquiry by the military judge discloses a
      disagreement as to a material term in the agreement; or

      (4) if findings are set aside because a guilty plea is
      deemed improvident on appellate review.

The military judge determined that withdrawal was authorized by

virtue of Williams' failure to fulfill a material promise or

condition in the agreement.       Williams contends that the military

judge erred in allowing the withdrawal because (1) he had begun

performance of his obligations under the agreement and (2) none

of the other circumstances listed in R.C.M. 705(d)(4)(B) were

present.

      The language at issue in the pretrial agreement provides:

“I agree to reimburse the victim or victim(s) of the larcenies

for which I have been charged, once those individuals and the

amounts owed have been ascertained.”         This language is not a



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United States v. Williams, Jr., No. 04-0208/AR


model of clarity and does not provide a date certain for payment

of the reimbursement.      Williams consequently argues that the

language does not require that the restitution be made prior to

trial.   He asserts that a plain reading of the language

indicates that if the amount and identity of the victim have not

been ascertained prior to trial, the pretrial agreement is not

affected because he would be allowed to make reimbursement after

trial.   The Government argues that the identity of the victim

and the amount of reimbursement were not in dispute from the day

the charges were preferred.       The charge sheet, bank records and

other documents in the case file identified the Bank of America

as the victim of the larcenies and the total amount stolen as

$2,302.01, the same figure the Government provided at trial to

the military judge.

      We have long emphasized the critical role that a military

judge and counsel must play to ensure that the record reflects a

clear, shared understanding of the terms of any pretrial

agreement between an accused and the convening authority.

United States v. Felder, 59 M.J. 444, 445 (C.A.A.F. 2004)(citing

United States v. King, 3 M.J. 458 (C.M.A. 1977) and United

States v. Green, 1 M.J. 453 (C.M.A. 1976)).       Whatever else the

record reflects in this case, the exchange between the parties

and the military judge plainly demonstrates something far short




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of "a clear, shared understanding" of the disputed restitution

provision.

     Accordingly, we need not determine whether Williams'

execution of a stipulation of fact constituted the beginning of

performance or whether the military judge properly concluded

that Williams had “fail[ed] to fulfill a material promise or

condition in the agreement.”       Rather, this is an instance in

which the parties had an underlying disagreement as to the

restitution clause itself.       The President has set forth four

alternative circumstances in R.C.M. 705(d)(4)(B) under which the

convening authority is authorized to withdraw from a pretrial

agreement.    The third circumstance is when an “inquiry by the

military judge discloses a disagreement as to a material term in

the agreement.”

      A distinct, separate provision offering to make restitution

can provide a significant inducement for a convening authority

to accept an accused’s offer to plead guilty.      See R.C.M.

705(c)(2)(C).    Here the record on appeal demonstrates that

Williams sought a more favorable pretrial agreement by extending

an offer to make restitution and reflects the significance

attached by the convening authority to that offer.      Under those

circumstances, there can be little doubt that the restitution

provision was “material” to the resultant pretrial agreement.




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United States v. Williams, Jr., No. 04-0208/AR


      The inquiry conducted by the military judge clearly

established "a disagreement as to a material term in the

agreement," and that circumstance alone provides a factual and

legal basis for the convening authority to withdraw.        Although

the military judge’s inquiry did not focus on the "disagreement

as to a material term" component of R.C.M. 705(d)(4)(B), his

inquiry and the record nonetheless demonstrate that as a proper

basis for withdrawal under the rule.         Because the withdrawal

provisions of R.C.M. 705(d)(4)(B) are disjunctive, we need not

determine whether there was specific performance or detrimental

reliance upon the agreement by Williams.         Nor do we need to

address what remedies might be appropriate in a case involving

detrimental reliance.

     We do not hold today that a convening authority may

withdraw from a pretrial agreement by simply claiming that a

disagreement exists.      Rather, the President has required that

the existence of a disagreement and the materiality of the terms

at issue be ascertained by the military judge through his or her

inquiry.   That requirement reflects the critical role that a

military judge plays during a plea colloquy in ensuring that the

record reflects a clear, shared understanding by the parties of

the terms of the agreement.       Felder, 59 M.J. at 445.

      We also reject Williams' claim that the withdrawal was

improper because the convening authority did not personally make



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United States v. Williams, Jr., No. 04-0208/AR


the decision to withdraw.       When the staff judge advocate (SJA)

recommended to the convening authority that Williams’ offer to

plead guilty be accepted, he was induced to do so based on

Williams’ offer to make restitution.         Following their discussion

about this case, the SJA believed that the restitution provision

was the reason the convening authority approved the offer and he

left the office with the clear understanding that if there were

no restitution prior to trial, there was no deal.

      As the SJA knew the circumstances under which the convening

authority approved the offer, once those circumstances were no

longer present, the trial counsel who had communicated with the

SJA on this matter could effect the Government’s withdrawal from

the pretrial agreement.      Cf. Satterfield v. Drew, 17 M.J. 269,

273 (C.M.A. 1984)(noting trial counsel authorized to take

necessary, usual, and proper actions to accomplish or perform,

the main authority expressly delegated to him).

                                     DECISION

      The decision of the United States Army Court of Criminal

Appeals is affirmed.




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