UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           OLMSCHEID, GALLUP, and KIRBY
                              Appellate Military Judges

                          UNITED STATES, Appellee
                                        v.
                   Sergeant First Class JAMES H. WILLIAMS
                         United States Army, Appellant

                                   ARMY 20040760

                      101st Airborne Division (Air Assault)
    Robert L. Swann (arraignment) and Lauren B. Leeker (trial), Military Judges
               Colonel Richard M. Whitaker, Staff Judge Advocate


For Appellant: Bernard J. Casey, Esquire (argued); Kathy M. Banke, Esquire;
Captain Charles L. Pritchard, Jr., JA; (on brief); Bernard J. Casey, Esquire; Captain
Sean F. Mangan, JA (on reply brief).

For Appellee: Captain Michael C. Friess, JA (argued); Lieutenant Colonel Michele
B. Shields, JA; Major Tami Dillahunt, JA (on brief).

                                      11 April 2007

                             -------------------------------------
                                OPINION OF THE COURT
                             -------------------------------------

KIRBY, Judge:

       An officer and enlisted panel sitting as a general court-martial convicted
appellant, contrary to his pleas, of willful dereliction of duty and armed robbery, in
violation of Articles 92 and 122, Uniform Code of Military Justice, 10 U.S.C. §§ 892
and 922 [hereinafter UCMJ]. The convening authority approved the adjudged
sentence to a bad-conduct discharge and reduction to the grade of Private E1.

       This case is before the court for review pursuant to Article 66, UCMJ. We
have considered the record of trial, appellant’s assignments of error, oral arguments,
the matters appellant personally raised pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), the government’s response thereto, and appellant’s reply
brief. We find the errors asserted by appellant to be without merit. Appellant’s
WILLIAMS – ARMY 20040760

assertion of improper withdrawal and re-referral of charges, however, is worthy of
discussion.

                                       FACTS

       On 26 April 2003, appellant, a platoon sergeant, was traveling in a two
vehicle convoy in Iraq heading to the local market to buy food and drinks for the
soldiers. At an intersection, an Iraqi man driving a sport utility vehicle cut off the
convoy, which proceeded to chase the vehicle until it came to a stop at a private
residence. Appellant and Staff Sergeant (SSG) Lozano then approached the driver
with weapons drawn, made him exit the vehicle and get down on the ground with his
arms stretched above his head, and took the vehicle. They did not tell the Iraqi man
why they were taking the vehicle, explain how he could get it back or be
compensated, or leave a receipt as required by the Rules of Engagement (ROE)
applicable at the time. 1

       On the way back to the ammunition supply point (ASP) where the unit was
based, the convoy stopped along the side of the road, searched the vehicle interior
and discarded many of its contents. The convoy removed the license plate and drove
the Iraqi vehicle back to the ASP. At the ASP, appellant and SSG Lozano presented
the vehicle’s keys to their platoon leader, Second Lieutenant (2LT) Pavlik, told him
they had confiscated the vehicle for him, and cited the ROE as authority for seizing
the vehicle. The platoon leader was concerned they had seized the vehicle at
gunpoint and not left a receipt. Although 2LT Pavlik had told his soldiers
previously that he needed a vehicle, he had not ordered any vehicle confiscated; nor
was he authorized to issue such an order, as he was not the commander.

       Shortly thereafter, appellant directed his subordinate soldiers to intentionally
damage the vehicle to change its appearance. The soldiers broke all of the vehicle’s
windows, scratched and dented it, and tore off the spoiler and pinstripes, so that it
looked different from the vehicle they had seized. Later that evening, as several
soldiers from the platoon sat around a camp fire, 2LT Pavlik and appellant devised a
story to tell anyone who asked them how they acquired the vehicle. The gist of the

1
  The ROE provided: “Seize PRIVATE property only if it has a military use (e.g.,
weapons, ammunition, communication, equipment, or transportation) [and] your
commander authorizes the seizure based on military necessity. Give the owner a
receipt.” This was further reinforced by United States Central Command General
Order Number 1A, which provided: “Private or public property may be seized during
exercises or operations only on order of the Commander, when based on military
necessity. Such property will be collected, possessed, secured and stored for later
return to the lawful owner. The wrongful taking of private property, even
temporarily, is a violation of Article 121, [UCMJ].”
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WILLIAMS – ARMY 20040760

story was that the soldiers had found the vehicle abandoned on the side of the road.
Appellant and 2LT Pavlik then coached the other soldiers on how to respond to
questions if there was ever an investigation. Appellant told them that he used to be
a police officer and that if everyone just “stuck to the story,” nothing would happen
to them. Staff Sergeant Lozano, observing that some of the soldiers appeared
frightened, told the soldiers that if they got scared and wanted to tell the truth they
could do so and he would take responsibility for taking the vehicle. Appellant later
chastised SSG Lozano, telling him that his comment would make the soldiers more
likely to “squeal.”

       On 8 August 2003, charges were preferred against appellant and referred to a
summary court-martial (SCM). 2 Appellant was charged with two specifications of
dereliction of duty for failing to stop members of his platoon from drinking alcohol
and failing to stop 2LT Pavlik from bringing personally owned firearms into the area
of operations. He was also charged with making a false official statement (by
stating they found the vehicle abandoned by the side of the road) and armed robbery
for the theft of the vehicle.

       Prior to preferral and referral to a SCM, the trial counsel and defense counsel
engaged in pretrial agreement negotiations, but never came to a meeting of the minds
memorialized by a written agreement. The trial counsel was under the impression
that they had “agreed” appellant would plead guilty and testify against the co-
accuseds in exchange for a referral to a SCM. The trial counsel advised the
convening authority that this “agreement” was a predicate for the SCM referral. The
defense counsel and appellant, however, were under the impression that in order to
secure a referral to a SCM, appellant would merely have to “fully cooperate.” They
believed this to mean only that appellant would provide a sworn statement and
testify in the trials of the co-accuseds; they did not believe appellant was required to
plead guilty at the SCM. The charges were referred to a SCM without further
clarification or discussion.

      Appellant met with the officer presiding over the SCM sometime in mid-



2
 The maximum punishment authorized at a SCM of a sergeant first class (E7) is
forfeiture of two-thirds pay for one month, restriction to specified limits for two
months, and reduction to staff sergeant (E6). Rule for Courts-Martial [hereinafter
R.C.M.] 1301(d).




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WILLIAMS – ARMY 20040760

August for a preliminary proceeding in accordance with R.C.M. 1304(b)(1). 3 The
proceeding was informal with the two sitting at a table. There was not a recorder or
anyone else present to make any notes of the proceeding. 4 The presiding officer read
the charges to appellant and the two discussed appellant’s rights, the procedures that
would be followed at trial, and the date for the upcoming SCM trial proceeding.
Appellant gave the presiding officer a list of requested witnesses for the SCM and
the proceeding was adjourned until the agreed upon trial date.

      Sometime after the preliminary proceeding, the defense counsel asked the trial
counsel if he expected appellant to plead “guilty” at the upcoming SCM trial
proceeding phase. The trial counsel conveyed his and the convening authority’s
understanding that the “agreement” required appellant to plead “guilty” and if
appellant was now going to plead “not guilty,” the government would have to re-
examine whether the charges had been referred to the appropriate level court-
martial. After discussion with appellant, the defense counsel informed the trial
counsel that appellant planned to plead “not guilty” at the SCM.

       On 30 August 2003, the battalion commander who had referred the charges to
the SCM withdrew the charges and dismissed them without prejudice. On 13
September 2003, identical charges were re-preferred and the battalion commander
appointed an officer to conduct a thorough and impartial investigation into the
alleged offenses, pursuant to Article 32, UCMJ. On 5 April 2004, pursuant to the
investigating officer’s recommendation, the battalion commander dismissed Charge
I, Specification 2, 5 and Charge II and its Specification 6 without prejudice and
forwarded the remaining charges to the general court-martial (GCM) convening
authority (GCMCA). On 6 April 2004, the GCMCA referred the remaining charges

3
  Rule for Courts-Martial 1304(b) divides a SCM into two distinct phases. The first
phase (R.C.M. 1304(b)(1)) is the preliminary proceeding where the accused is
provided with basic information regarding the allegations and his rights. The
accused is then provided “a reasonable period of time to decide whether to object to
trial by SCM.” If the accused does not object to being tried by SCM then the SCM
proceeds to the trial proceeding phase (R.C.M. 1304(b)(2)). It is during this second
phase that the accused is arraigned and tried for the alleged offenses. Id.
4
  Rule for Courts-Martial 1305 requires a record of trial be prepared in a SCM and
outlines what the record shall contain. Trial counsel testified that it was his practice
to “have a [paralegal] present as a recorder during a [SCM].”
5
  Dereliction of duty for failing to stop 2LT Pavlik from bringing a privately owned
firearm into the area of operations, in violation of Article 92, UCMJ.
6
    Making a false official statement, in violation of Article 107, UCMJ.
                                              4
WILLIAMS – ARMY 20040760

of dereliction of duty and armed robbery, in violation of Articles 92 and 122, UCMJ,
to a GCM. 7

       At trial, the defense counsel moved to dismiss all the charges for improper
withdrawal from the SCM and re-referral to a GCM without good cause. The
defense argued that the government withdrew and re-referred the charges to a higher
level court-martial in retaliation for appellant’s free exercise of his right to plead not
guilty under the Fifth and Sixth Amendments to the U.S. Constitution 8 and R.C.M.
910(a)(1). 9 The government argued that the withdrawal and subsequent GCM
referral were proper because new information was discovered after the initial
referral indicating appellant was more culpable than he had initially led the trial
counsel and convening authority to believe. The new information indicated
appellant played a greater leadership role in the armed robbery and subsequent
attempt to conceal the crime. The government also argued the convening authority
had based his SCM referral decision on the belief that appellant was going to plead
guilty and testify against the co-accuseds.

       The defense counsel fully litigated appellant’s claim of improper withdrawal
and re-referrel to a GCM at trial. The military judge found there was no arraignment
at the SCM preliminary proceeding and no meeting of the minds or pretrial
agreement. Moreover, the military judge found the trial counsel discovered
additional information indicating appellant was more culpable than initially thought.
She found the convening authority withdrew the charges for a proper purpose and,
therefore, denied the motion to dismiss.

                                           LAW

         Rule for Courts-Martial 604 provides in pertinent part:

               (a) Withdrawal. The convening authority or a superior
               competent authority may for any reason cause any charges

7
 The maximum punishment authorized for these offenses at a GCM was confinement
for fifteen years and six months, a dishonorable discharge, forfeiture of all pay and
allowances, and reduction to Private E1.
8
  The Fifth Amendment states, inter alia, an accused shall neither be “compelled in
any criminal case to be a witness against himself, nor shall be deprived of life
liberty, or property without due process of law.” The Sixth Amendment, inter alia,
protects the right of an accused in a criminal prosecution, “to a speedy and public
trial.”
9
    Rule for Courts-Martial 910(a)(1) lists “not guilty” as an authorized plea.
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WILLIAMS – ARMY 20040760

             or specifications to be withdrawn from a court-martial at
             any time before the findings are announced.

             (b) Referral of withdrawn charges. Charges which have
             been withdrawn from a court-martial may be referred to
             another court-martial unless the withdrawal is for an
             improper reason.

The discussion section following R.C.M. 604(b) explains:

             Improper reasons for withdrawal include an intent to
             interfere with the free exercise by the accused of
             [C]onstitutional or codal rights, or with the impartiality of
             the court-martial. . . . Before arraignment, there are many
             reasons for a withdrawal which will not preclude another
             referral. These include . . . reconsideration by the
             convening authority or by a superior competent authority
             of the seriousness of the offenses . . . . Charges withdrawn
             after arraignment may be referred to another court-martial
             under some circumstances. For example, it is permissible
             to refer charges which were withdrawn pursuant to a
             pretrial agreement if the accused fails to fulfill the terms
             of the agreement.

Rule for Courts-Martial 904 further provides: “Arraignment shall be conducted in a
court-martial session and shall consist of reading the charges and specifications to
the accused and calling on the accused to plead.” Finally, the discussion following
R.C.M. 904 states: “Arraignment is complete when the accused is called upon to
plead; the entry of pleas is not part of the arraignment.” See United States v. Boehm,
17 U.S.C.M.A. 530 (1968); United States v. Jackson, 41 C.M.R. 677 (A.C.M.R.
1970), pet. denied, 19 U.S.C.M.A. 403 (1970).

                                    DISCUSSION

       The first issue we must determine is whether appellant was arraigned at the
SCM preliminary proceeding. For the reasons articulated below, we agree with the
military judge that appellant was not arraigned at the SCM.

       Appellant argued at trial during the motion hearing and to this court that
withdrawal of the charges from the SCM occurred after arraignment and was for the
improper purpose of retaliating against him for asserting his Constitutional right to
plead not guilty. Specifically, appellant asserted that he was read the charges and
called upon to plead. As support for this assertion, appellant submitted an affidavit

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WILLIAMS – ARMY 20040760

with his appellate pleadings in which he stated in pertinent part, with emphasis
added:

             5. Major Hurley read from what appeared to be a
             script. [10] He told me he was the [SCM] officer. He read
             the charges from the charge sheet. He asked if I
             understood the charges and my rights under the [SCM]
             procedures. I responded that I did and handed him a
             written request for the appearance of specified witnesses
             and the identification and copies of other evidence.

             6. Major Hurley appeared surprised and said something to
             this effect: “So you are pleading not guilty?” I
             confirmed that I was. He said, in that case, he would
             attempt to produce the requested witnesses and evidence
             and that I was to report back to him to continue the trial in
             a specified time period which I believed to have been ten
             (10) days. Major Hurley said that if he could not produce
             the witnesses at that time, he would reschedule the
             proceedings and let me know.

      Appellant’s testimony at trial, however, was far different. On direct
examination, the following colloquy, with emphasis added, took place between the
defense counsel and appellant:

             Q: Let’s get to the [SCM]. What happened at this
             hearing?

             A: I went to Mosul to the airfield. I met with Major
             Hurley, who had been appointed as the court-martialing
             [sic] officer.

             Q: How do you know that?

             A: Because when I sat down with him, he announced that
             that is what he was, that he was the [SCM] Officer. He
             gave me some paperwork to sign and informed me on what
             date that I would have to appear for the [SCM]. At that
             time, I presented him with my request for evidence and my
             witness list.

10
  A SCM script is found in the Manual for Courts-Martial, United States (2002 ed.)
[hereinafter MCM], Appendix 9.
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WILLIAMS – ARMY 20040760


             Q: I’m sorry, keep going, Sergeant Williams.

             A: He seemed kind of surprised that I was doing that. He
             didn’t say anything. He said, “I’ll see you on” that
             date that he had put down on the sheet for me to be
             back for my [SCM].

       Appellant’s testimony later continued with the following questioning by the
military judge:

             Q: And when you saw Major Hurley, you all sat down and
             ----

             A: He announced that he was going to be the Officer in
             Charge of the [SCM]. He explained to me what his duties
             were as far as investigating the charges. He made it real
             clear that he was not biased in any way because I asked
             him the question of if he knew about the case or if he had
             formulated any opinions. He had me sign some paperwork
             to inform me of what day my [SCM] would be. I gave him
             the witness list that I requested. I gave him the request
             for evidence that Captain George had put together for me.

             Q: So, he basically apprised you of the rights that you had
             at the court-martial and when the court-martial would be?

             A: Yes, ma’am.

      We agree with the military judge that appellant was not arraigned at the SCM.
Arraignment occurs when an accused is read the charges and called upon to enter a
plea. R.C.M. 904. Both appellant’s post-trial affidavit and trial testimony support
the conclusion that the SCM officer proceeded consistent with the script found in
MCM, Appendix 9, for the SCM preliminary proceeding. Clearly the purpose of the
meeting was to read appellant the charges, explain the SCM procedures and
appellant’s rights, and set a future date for the actual trial proceedings — a stage
never reached in this case. As noted above, arraignment is not a part of the
preliminary proceeding, but rather part of the subsequent SCM trial proceeding.
R.C.M. 1304(b)(2); MCM, Appendix 9.

       Even if we accept appellant’s post-trial assertion, that the presiding officer
asked him, “So you are pleading not guilty?” after appellant handed the presiding
officer his witness list (contrary to his assertion at trial that the presiding officer

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WILLIAMS – ARMY 20040760

“didn’t say anything”) this was not an arraignment. Rather, this was a preliminary
and informal meeting to establish what would be required for the SCM trial
proceeding. We find this to be no different than a military judge requiring counsel
to submit a docketing request that includes anticipated pleas and forum, and
proposed trial dates. See Army Reg. 27-10, Legal Services, Military Justice, para.
5-21 (16 Nov. 2005). 11 As indicated by the lack of a recorder and the informality of
the meeting, the purpose of the initial meeting was not to formally call upon
appellant to enter pleas, but to properly prepare the presiding officer for what he
would need in order to conduct the SCM. See Jackson, 41 C.M.R. at 681 (holding
that a discussion concerning pleas at an off-the-record R.C.M. 802 session did not
constitute an arraignment). See also, R.C.M. 904 discussion (“The accused may not
be arraigned at a conference under R.C.M. 802.”).

       We also agree with the military judge that there was no pretrial agreement in
this case. Rule for Courts-Martial 705(d)(2) requires “[a]ll terms, conditions, and
promises between the parties shall be written. The proposed agreement will be
signed by the accused and defense counsel, if any.” There was no written agreement
in this case. Moreover, there was no meeting of the minds. There was serious
disagreement as to a material term — how appellant would plead to the charges.
This is not to say, however, as further discussed below, that the convening authority
did not make his initial referral decision based upon certain factual assumptions —
one being that appellant would plead guilty to the charged offenses.

       In claims of retaliatory prosecution for the exercise of Constitutional rights,
appellant bears the burden of setting forth at least a prima facie case rebutting the
“strong presumption that the convening authority performs his duties as a public
official without bias.” United States v. Hagen, 25 M.J. 78, 84 (C.M.A. 1987)
(citations omitted). For, “[a]s with a charge of selective prosecution, an accused
must show more than a mere possibility of vindictiveness; he must show
discriminatory intent.” Id. Once a prima facie case has been made that the
convening authority acted vindictively or improperly, then the burden shifts to the
government to disprove that claim. Id.

       Appellant has failed to meet his burden in establishing a prima facie case that
the charges were withdrawn from the SCM and subsequently re-referred to a general
court-martial for a discriminatory purpose. Appellant asserts, inter alia, that
because no pretrial agreement existed in this case, the convening authority
improperly relied upon appellant’s failure to abide by the terms of the pretrial
agreement as one of the reasons for withdrawing the charges from the SCM and re-
referring them to a higher level court-martial.

11
  The version in effect at the time of trial is substantially identical. See Army Reg.
27-10, Legal Services, Military Justice, para. 5-20 (6 Sept. 2002).
                                            9
WILLIAMS – ARMY 20040760

      We disagree. As discussed above, the government withdrew the charges in this
case prior to arraignment. More importantly, even if the existence of a pretrial
agreement were relevant, appellant has failed to show discriminatory intent by the
convening authority. The discussion section of R.C.M. 604 specifically lists
“reconsideration by the convening authority or by a superior competent authority of
the seriousness of the offenses” as an example of a proper purpose. The
memorandum for record from the convening authority, dated 23 July 2004, in the
allied papers and the trial counsel’s testimony clearly explain why the convening
authority initially referred this case to a SCM. That decision was based upon the
following facts as understood by the convening authority at the time: (1) a lack of
witnesses willing to testify would make prosecution of the responsible individuals
difficult; (2) appellant’s rendition of events made him seem like a passive
participant in the armed robbery; and (3) appellant would be willing to plead guilty
to the offenses and testify against the other participants in the armed robbery.

      After SCM referral it became apparent that the convening authority’s initial
understanding was not accurate. Based upon SSG Lozano’s proffer of expected
testimony, it emerged that appellant served a much more prominent leadership role
in the armed robbery and subsequent efforts to conceal the crime than trial counsel
had been led to believe. Furthermore, other participants in the armed robbery
corroborated SSG Lozano’s version and were now willing to testify, thus making
appellant’s cooperation less important. Finally, appellant’s decision to plead not
guilty removed a mitigating factor that had led the convening authority to refer the
case to a SCM. Once the trial counsel informed the convening authority that the
factual assumptions used in his referral decision were incorrect, the convening
authority reconsidered the seriousness of appellant’s offenses and his referral
decision. We do not find this to be an improper purpose.

                                   CONCLUSION

      The findings of guilty and the sentence are affirmed.

      Senior Judge OLMSCHEID and Judge GALLUP concur.

                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court



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