

   
   
   
   U.S. v. Davis



IN THE CASE OF
UNITED STATES, Appellee
v.
Larry J. DAVIS, Jr., Sergeant
U.S. Marine Corps, Appellant
 
No. 97-0790
Crim. App. No. 96-0319
 
United States Court of Appeals for the Armed
Forces
Argued October 7, 1998
Decided June 24, 1999
GIERKE, J., delivered the opinion of the
Court, in which COX, C.J., and SULLIVAN, and EFFRON, JJ., joined. CRAWFORD,
J., filed an opinion concurring in the result.
Counsel
For Appellant: Major Stephen D. Chace,
USMC (argued); Lieutenant Estela I. Velez, JAGC, USNR (on brief).
For Appellee: Major Clark R. Fleming,
USMC (argued); Colonel Charles Wm. Dorman, USMC, Colonel K. M.
Sandkuhler, USMC, and Commander David H. Myers, JAGC, USN, (on
brief).
Military Judge: C. L. Carver
 

THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, contrary to his pleas, of two unauthorized absences,
wrongful possession of drug paraphernalia contrary to a general regulation,
wrongful use of marijuana, wrongful use of cocaine (2 specifications),
and making and uttering 37 bad checks, in violation of Articles 86, 92,
112a, and 123a, Uniform Code of Military Justice, 10 USC §§ 886,
892, 912a, and 923a, respectively. The adjudged and approved sentence provides
for a bad-conduct discharge, confinement for one year, total forfeitures,
and reduction to the lowest enlisted grade. The Court of Criminal Appeals
affirmed the findings and sentence. 46 MJ 551 (1997).
This Court granted review of the following
issue:

WHETHER THE LOWER COURT ERRED WHEN IT DETERMINED
THAT THE MILITARY JUDGE HAD NOT ERRED IN ACCEPTING APPELLANTS PRETRIAL
AGREEMENT WHERE THE PRETRIAL AGREEMENT CONTAINED A PROHIBITED AND UNENFORCEABLE
PROVISION TO "CALL NO WITNESSES AND PRESENT NO EVIDENCE ON MY BEHALF DURING
THE CASE ON THE MERITS," THEREBY VIOLATING RULE FOR COURTS-MARTIAL 705(c)(1)(B).

For the reasons set out below, we affirm.

Factual Background
Before trial, appellant negotiated a pretrial
agreement with the convening authority that obligated appellant to request
trial by military judge alone, enter into a confessional stipulation, "call
no witnesses and present no evidence on my behalf during the case on the
merits[,]" and "complete an in-patient drug rehabilitation program . .
. at the earliest time practicable." The convening authority agreed to
suspend all confinement in excess of 12 months for 12 months from the date
of his action. The agreement permitted all punishments to be approved as
adjudged.
After appellant entered pleas of not guilty,
both sides waived opening statements. The military judge announced that
he had received a copy of the proposed stipulation of fact, observed that
it appeared to be a confessional stipulation, and announced his intention
to conduct the inquiry required by United States v. Bertelson, 3
MJ 314 (CMA 1977).
The military judge then asked appellant if
he signed the stipulation, discussed it with his defense counsel, voluntarily
entered into the stipulation, believed everything recited in the stipulation
was true, and wished to admit that it was true. Appellant responded in
the affirmative to each inquiry. The military judge (MJ) explained the
effect of a confessional stipulation as follows:

This stipulation amounts to a confession
of the elements of all of the offenses to which you pled not guilty. There
is I believe only a couple of exceptions. It seems to me that the stipulation
does not include anything about what the SECNAV [Secretary of the Navy]
Instruction prohibits, that is, the Article 92 offense; but I would presume
that that wouldnt take much effort by the Government to introduce evidence
of the copy of that instruction and it does not admit the wrongfulness
of the use of cocaine and marijuana; but again, that can be presumed by
the stipulation that you have entered into and it does not admit the intent
to defraud which is a part of the Article 123a, bad-checks offense. Nonetheless,
that can also be presumed simply by the facts that youve entered into
it. Do you understand that?
[Accused] (ACC): Yes, sir.
MJ: So in other words, based just on the stipulation
and perhaps the introduction of a copy of the SECNAV Instruction as to
one offense, the Government [sic] could find you guilty of all the offenses
based only on the stipulation of fact. Do you understand that?
ACC: Yes, sir.

The military judge then advised appellant of the
elements of each offense charged and asked if he realized that the confessional
stipulation "practically admits" each element of each offense charged.
In each case, appellant responded, "Yes, sir." The military judge then
had the following dialogue with appellant:

MJ: You have pleaded not guilty to all offenses.
By pleading not guilty, you have placed the burden on the prosecution to
prove its case against you, if it can, by legal and competent evidence
beyond a reasonable doubt. By stipulation to all of the elements of the
offenses, you relieve the prosecution of its burden of proving these elements
by legal and competent evidence. If you do not agree to this stipulation,
then the stipulation could not be used and the prosecution would have to
prove these elements if it could. Do you understand that?
ACC: Yes, sir.
MJ: Is everything in the stipulation true?
ACC: Yes, sir.
MJ: How do you know that its true?
ACC: I read it myself, sir, and I agree with
what is stipulated in the statement.
MJ: Most of the facts were personally known
to you?
ACC: Yes, sir.
MJ: And perhaps [as to] some of the others,
that came about by reviewing the evidence with your attorney?
ACC: Yes, sir, and discussion with my attorney.
MJ: And youre absolutely convinced that there
is a factual basis for all the stipulated matters?
ACC: Yes, sir.
MJ: Has anyone forced or threatened you to
enter into the stipulation?
ACC: In no way, sir.
MJ: Has anyone made any promises or agreements
with you in exchange for your entering into this stipulation other than
the pretrial agreement itself?
ACC: No, sir.

Thereafter, the military judge explained each
term of the pretrial agreement, ensured that appellant was satisfied with
the advice of his defense counsel and that appellant understood each term,
agreed with the military judges interpretation of each term, and was entering
the pretrial agreement voluntarily.
With the concurrence of trial counsel and defense
counsel, the military judge advised appellant that the maximum authorized
punishment for the offenses was a dishonorable discharge, confinement for
19 years and 7 months, total forfeitures, a fine, and reduction to pay
grade E-1, "as well as other lesser penalties." The military judge asked
appellant, "Do you understand that since this stipulation of fact practically
admits [sic] to a plea of guilty, you could lawfully be sentenced to this
maximum punishment?" Appellant responded, "Yes, sir."
The military judge then accepted the confessional
stipulation in evidence and ruled that "the pretrial agreement is in accordance
with appellate case law" and "not contrary to public policy or my own notions
of fairness."
After presenting evidence of the SECNAV Instruction
allegedly violated, the prosecution rested. The military judge then conducted
the following inquiry:

MJ: Sergeant Davis, if it werent for the
agreement which you yourself and your counsel proposed, you would have
the absolute right to present evidence, to present witnesses and to testify
under oath as to these matters. Do you understand that?
ACC: Yes, sir.
MJ: Do you specifically waive all of those?
ACC: Yes, sir.

Following this inquiry, defense counsel made the
following closing argument:

Sir, we would simply address the issue of
intent to defraud with respect to the charge under Article 123a. We would
submit that while the Government has presented facts which would permit
the military judge to make an inference as to intent to defraud, we would
argue that those facts in combination with the charge regarding cocaine
use raised enough doubt as to amount to reasonable doubt in this Courts
mind as to intent to defraud. We would ask the judge not to make the inference
of that intent and render a finding of not guilty. Thank you.

Immediately after defense counsels argument,
the military judge found appellant guilty of all Charges and specifications.

Discussion
Appellant asserts that the "pretrial agreement
turned his
. . . court-martial into an empty ritual";
deprived him of due process in violation of RCM 705(c)(1)(B), Manual for
Courts-Martial, United States (1995 ed.)1;
circumvented Article 45(a), UCMJ, 10 USC § 845(a), RCM 910(c), and
United States v. Care, 18 USCMA 535, 40 CMR 247 (1969); and compromised
the integrity of the court-martial. The Government argues that RCM 705(c)(1)(B)
specifically contemplates pretrial agreements providing for confessional
stipulations instead of guilty pleas and that the integrity of the court-martial
was not compromised in this case. The Government points out that the extensive
inquiry by the military judge ensured that there was no government overreaching
and that appellant freely and voluntarily agreed to all the terms of the
pretrial agreement.
A fundamental principle underlying this Courts
jurisprudence on pretrial agreements is that "the agreement cannot transform
the trial into an empty ritual." United States v. Allen, 8 USCMA
504, 507, 25 CMR 8, 11 (1957). This principle and numerous court decisions
applying it have been incorporated in RCM 705(c)(1)(B), which provides
as follows:

A term or condition in a pretrial agreement
shall not be enforced if it deprives the accused of: the right to counsel;
the right to due process; the right to challenge the jurisdiction of the
court-martial; the right to a speedy trial; the right to complete sentencing
proceedings; the complete and effective exercise of post-trial and appellate
rights.

See Drafters Analysis of RCM 705(c)(1)(B),
Manual, supra at A21-38. RCM 705(c)(2)(A) specifically authorizes
the pretrial agreement to contain "[a] promise to enter into a stipulation
of fact concerning offenses to which a plea of guilty or as to which
a confessional stipulation will be entered." (Emphasis added.)
When an accused pleads guilty, RCM 910(c) requires
the military judge to "address the accused personally and inform the accused
of, and determine that the accused understands," a number of consequences,
including the following:

(1) The nature of the offense to which the
plea is offered, the mandatory minimum penalty, if any, provided by law,
and the maximum possible penalty provided by law;

* * *
(3) That the accused has the right to plead
not guilty or to persist in that plea if already made, and that the accused
has the right to be tried by a court-martial, and that at such trial the
accused has the right to confront and cross-examine witnesses against the
accused, and the right against self-incrimination;
(4) That if the accused pleads guilty, there
will not be a trial of any kind as to those offenses to which the accused
has so pleaded, so that by pleading guilty the accused waives the rights
described in subsection (c)(3) of this Rule[.]

(Provisions of RCM 910(c) not relevant to this
case omitted.)
RCM 910(c) incorporates the inquiry mandated
by this Court in United States v. Care, supra. It implements
Article 45(a), which requires a military judge to reject a guilty plea
if the accused "makes an irregular pleading, or after a plea of guilty
sets up matter inconsistent with the plea, or if it appears that he has
entered the plea of guilty improvidently or through lack of understanding
of its meaning and effect."
RCM 811(c) requires a military judge to "be
satisfied that the parties consent to" a stipulation before accepting it
in evidence. The non-binding Discussion to RCM 811(c) provides further
guidance as follows:

If the stipulation practically amounts to
a confession to an offense to which a not guilty plea is outstanding, it
may not be accepted unless the military judge ascertains: (A) from the
accused that the accused understands the right not to stipulate and that
the stipulation will not be accepted without the accuseds consent; that
the accused understands the contents and effect of the stipulation; that
a factual basis exists for the stipulation; and that the accused, after
consulting with counsel, consents to the stipulation; and (B) from the
accused and counsel for each party whether there are any agreements between
the parties in connection with the stipulation, and if so, what the terms
of such agreements are.

This guidance incorporates the inquiry mandated
by this Court in Bertelson, 3 MJ at 316-17. Bertelson permitted
a confessional stipulation in spite of a prohibition against confessional
stipulations in paragraph 154b(1), Manual for Courts-Martial, United
States, 1969 (Revised Edition)2,
then in effect. This prohibition was removed from the Manual for Courts-Martial,
United States, 1984, and all subsequent revisions. See Drafters
Analysis of RCM 811(c), Manual, supra at A21-48 (1995 ed.).3
Bertelson also held, "Should this plea
bargain inquiry reveal the existence of an agreement not to raise defenses
or motions, the confessional stipulation will be rejected as inconsistent
with Article 45(a)." The basis for this holding was explained as follows:

To allow the Government to enter into pretrial
agreements conditioned upon a stipulation (as opposed to a plea) of guilt
coupled with a promise not to raise any defense or motion would utterly
defeat the congressional purpose behind Article 45(a), for it would allow
the Government to avoid the hurdles Congress imposed in Article 45(a) while
nevertheless reaping benefits equivalent to a guilty plea.

3 MJ at 317.
Applying the foregoing body of law to the facts
of this case, we conclude that the Bertelson prohibition against
accepting a confessional stipulation as part of a pretrial agreement promising
not to raise any defense was violated. We hold, however, that appellant
was not deprived of due process under the specific facts of this case.
Like the court below, we are at a loss to discern
any tactical advantage gained by the plea of not guilty. The record
does not reflect any reason for the unusual
plea, such as an
unwillingness of appellant to admit that his
use of marijuana was "wrongful." Because appellant has not challenged the
adequacy of his representation, we have no explanation from his defense
counsel. See United States v. Lewis, 42 MJ 1, 6 (1995) (defense
counsel not compelled to explain actions in absence of allegation of ineffectiveness
and judicial determination that evidence, if unrebutted, would overcome
presumption of competence).
Notwithstanding the Bertelson violation,
we hold that appellant is not entitled to relief. The basis for the prohibition
against coupling a confessional stipulation and a promise not to present
evidence is that it circumvents Article 45(a). In this case the military
judge conducted all the inquiries and secured all the responses required
by Article 45(a) and RCM 910(a). Accordingly, we conclude that appellants
right to due process was not infringed.
Although appellant asserts that the procedures
employed in this case circumvented the requirement that the military judge
ensure that he understand that he waived his right against self-incrimination,
to a trial of the facts, and to confront the witnesses against him, the
record does not support his assertions. The record reflects that the military
judge informed appellant that the confessional stipulation admitted all
the elements of the offenses, except the wrongfulness of his use of marijuana
and the intent to defraud in the bad-check offenses. He informed appellant
that he could be convicted of all offenses based almost entirely on the
stipulation. He obtained appellants assurance that there was a factual
basis for all stipulated matters. He ensured that appellant understood
that the stipulation of fact virtually amounted to a plea of guilty. He
determined that appellant freely agreed to the pretrial agreement and the
stipulation. After the prosecution rested its case, the judge informed
appellant that, but for the agreement, he would be entitled to present
evidence on his behalf, and appellant indicated that he understood. On
this record, we are satisfied that appellant understood that he had incriminated
himself by his agreement to the stipulation, that he was giving up his
right to a trial on the merits, and that he was giving up his right to
confront the witnesses against him.
We note that appellant has not proffered any
evidence that was precluded by the pretrial agreement. The remedy for an
illegal pretrial agreement is to declare its provisions unenforceable.
Thus, the remedy in this case would be to allow appellant to present evidence
in his defense, but he has proffered none.
Finally, there is no evidence that the pretrial
agreement or confessional stipulation is the product of government overreaching.
Appellant repeatedly assured the military judge that his actions were completely
voluntary and were taken after receiving the advice of his defense counsel,
whose competence is not disputed. Thus, we conclude that appellant has
not been prejudiced by the procedures employed in this case. While we do
not condone or encourage them, we are satisfied that no relief is warranted.

Decision
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 This version was
in effect at the time of trial. The current version is unchanged.
2
When the Military Rules of Evidence first took effect in 1980, this provision
of the 1969 Manual was replaced by paragraph 54f(1) of that Manual
(Change 3, Sept. 1, 1980).
3
See n.1, supra.
 
 
CRAWFORD, Judge (concurring in the result):
This Court, in numerous cases, has indicated
that substance rather than form will control. As pointed out by the majority,
appellant entered a plea pursuant to a pretrial agreement. Like many defendants,
when faced with the moment of truth, appellant probably could not admit
the elements involved; thus, the confessional stipulation in the case.
See United States v. Penister, 25 MJ 148, 153 (CMA 1987)
(Cox, J., concurring). The defense here has not indicated what evidence
it would have introduced, and has not shown prejudice, as required by United
States v. Rivera, 46 MJ 52 (1997), and United States v. Forester,
48 MJ 1 (1998), in order to be entitled to relief. See also
United States v. Craig, 48 MJ 77, 80 (1998) (the Court held that
erroneous advice as to the waiver of constitutional rights was harmless);
cf. United States v. Watruba, 35 MJ 488 (CMA 1992).
RCM 705(b)(1), Manual for Courts-Martial, United
States, 1984 (1998 ed.), permits a pretrial agreement which includes "a
confessional stipulation as to one or more charges and specifications."
Additionally, RCM 705(c)(2)(A) permits a pretrial agreement which includes
a term promising entry into a stipulation of fact. Implicit within RCM
705(b)(1) is that the defendant will call no witnesses and present no evidence
to rebut what is in the stipulation, unless he or she withdraws from the
stipulation.
The pretrial agreement in this case "originated"
with appellant after consultation with his counsel. As part of that agreement,
he "attached [a] stipulation of fact which I have read and assert to be
true and accurate." In the next sentence, he indicated that he would "call
no witnesses and present no evidence on my behalf during the case on the
merits." Appellant was advised by the judge that he could not "be forced
to enter into a stipulation."



MJ: No one can be forced to enter into a
stipulation. You may do so only on a
voluntary basis and on the advice of your
attorney if you desire. Do you understand
that?
ACC: Yes, sir.
MJ: Are you voluntarily entering into this
stipulation?
ACC: Yes, sir.
MJ: I would like for you to read over to yourself
all of the stipulation of fact and look up
when you are finished reading it, and Im going to ask you if everything
in there is true. Go ahead and read it now and then look up when youre
finished.
DC: All right, sir.
[The accused did as instructed.]
MJ: Have you had a chance to review that document
once more?
ACC: Yes, sir.
MJ: Did you just talk it over with your attorney
as well?
ACC: There was a question I had for him, sir.
MJ: Is there anything in there that you would
like to dispute?
ACC: No, sir.
MJ: Do you believe everything in that document
is
absolutely true?
ACC: Yes, sir.
MJ: Do you wish to admit that it is true?
ACC: Yes, sir.
MJ: Do you have something to say, Captain Johnson?
DC: No, sir.
MJ: A stipulation of fact is an agreement between
the trial counsel, the defense counsel, and
yourself that everything in this document is absolutely true and if entered
into evidence are uncontradicted facts for the purpose of this trial. This
stipulation amounts to a confession of the elements of all of the offenses
to which you pled not guilty. There is I believe only a couple of exceptions.
It seems to me that the stipulation does not include anything about what
the SECNAV Instruction prohibits, that is, the Article 92 offense; but
I would presume that that wouldnt take much effort by the Government to
intro-
duce evidence of the copy of that instruction
and it does not admit the wrongfulness of the use of cocaine and marijuana;
but again, that can be presumed by the stipulation that you have entered
into and it does not admit the intent to defraud which is a part of the
Article 123a, bad checks offense. Nonetheless, that can also be presumed
simply by the facts that youve entered into it. Do you understand that?
ACC: Yes, sir.
MJ: So in other words, based just of the stipulation
and perhaps the introduction of a copy of the SECNAV Instruction as to
one offense, the Government could find you guilty of all the offenses based
only on the stipulation of fact. Do you understand that?
ACC: Yes, sir.
MJ: Accordingly, I must conduct an inquiry
to determine if you wish to have this stipulation admitted against you.
First, you have the right not to enter into
this
stipulation. This stipulation will not be
accepted
without your consent. Do you understand that?
ACC: Yes, sir.



R. 9-10.
The judge on several occasions again advised
appellant that inferences as to the missing elements could be drawn from
the stipulation without the introduction of evidence. Appellant agreed,
but still was willing to consent to admission of the stipulation of fact.
Appellant reiterated on the record that the agreement "originated" with
him and his lawyer. Appellant could not bring himself to admit to the elements
of wrongfulness or intent to defraud, blaming a "drug problem," that is,
an addiction to crack cocaine. According to appellant, there were very
few "waking moments" when he "was not under the influence of narcotics."
Appellant did not request a post-trial session
under RCM 1102, or under our case law, to set aside the conviction based
upon the inappropriate consideration of the stipulation of fact without
the introduction of any evidence. See e.g., United States
v. Scaff, 29 MJ 60 (CMA 1989); United States v. Griffith, 27
MJ 42 (CMA 1988). Nor did he do likewise in a post-trial submission to
the convening authority. To this date, the defense has not come forward
with any evidence that would contradict the stipulation. While I agree
that the record could have reflected why appellant made this agreement,
as in United States v. Craig, supra, it did not. But that
should not control our analysis.
After the plea was made by appellant, the judge
made an appropriate inquiry under RCM 811(c). While the majority cites
RCM 811(c), the Discussion to RCM 811(c), and United States v. Bertelson,
3 MJ 314 (CMA 1977), it fails to clarify which portion of Bertelson
still applies.
In Bertelson, the majority held that
a confessional stipulation ordinarily should not be admitted unless the
accused consents.



If an accused and his lawyer, in their best
judgment, think there is a benefit or advantage to be gained by entering
otherwise objectionable evidence, . . . we perceive no reason why they
should not be their own judges with leeway to do so.



Id. at 315-16. The majority also noted
that "it [was] not clear whether the accused understood that his stipulation
could not ordinarily be admitted." Id. at 316. The trial judge there
had only advised the accused that he did not have to agree to the stipulation.
But the Court remonstrated:



[W]e believe the military judge [1] was required
to expressly communicate to the appellant before accepting his confessional
stipulation that under the Manual it could not be accepted without his
consent. . . . Further, the military judge [2] was required to apprise
the accused, as he did here, that the Government has the burden of proving
beyond a reasonable doubt every element of the offense and that by stipulating
to material elements of the offense, the accused alleviates that burden.



Id.
In Bertelson, the Court required an
inquiry similar to the one it required in United States v. Care,
18 USCMA 535, 40 CMR 247 (1969). As the Court stated in Care:



It will be seen that the law officer [now
military judge] explained that he had to determine voluntariness and providency
personally and asked the accused (1) if he knew his plea subjected him
to a finding of guilty without further proof; (2) if he knew he could be
sentenced to the maximum sentence; (3) if he understood the meaning and
effect of his plea; (4) if he knew that the burden was on the Government
to prove his guilt beyond a reasonable doubt; (5) if he knew he was entitled
to plead not guilty; (6) if he knew the elements of the offense; (7) if
he had adequate opportunity to consult with counsel on any matters he felt
necessary; (8) if he was satisfied with his counsel; (9) whether counsel
advised him of the maximum punishment; (10) if the decision to negotiate
a plea originated with him; (11) if his plea was given voluntarily; (12)
if anyone used force or coercion to get him to enter a guilty plea; (13)
if he believed it was in his best interest to plead guilty; (14) if his
plea was the product of free will and a desire to confess his guilt; and
(15) if he knew he could withdraw his plea. . . .
The procedure that was followed here fell short.
. . because the law officer did not personally inform the accused of the
elements constituting the offense and he did not establish the factual
components of the guilty plea. . . .

* * *
[T]he record of trial . . . must reflect not
only that the elements of each offense charged have been explained to the
accused but also that the military trial judge . . . has questioned the
accused about what he did or did not do, and what he intended (where this
is pertinent), to make clear the basis for a determination by the military
trial judge . . . whether the acts or the omissions of the accused constitute
the offense or offenses to which he is pleading guilty. . . .
Further, the record must also demonstrate the
military trial judge . . . personally addressed the accused, advised him
that his plea waives his right against self-incrimination, his right to
a trial of the facts by a court-martial, and his right to be confronted
by the witnesses against him; and that he waives such rights by his plea.



Id. at 539-41, 40 CMR at 251-53.
Subsequent to Bertelson and Care,
the President, pursuant to his rulemaking authority under Article 36, Uniform
Code of Military Justice, 10 USC § 836, promulgated RCM 811. While
"[t]he President . . . cannot overrule or diminish an Act of Congress via
the promulgation of rules of procedure," the President does have the "clear
authority" to rectify "[o]ur rough-and-ready rule of thumb" that sets forth
how to handle confessional stipulations. United States v. Kossman,
38 MJ 258, 260-61 (CMA 1993). While this Court took it upon itself to ensure
that innocent defendants did not plead guilty to ensure a favorable pretrial
agreement, our rules have been clarified by the President.
RCM 811(c) provides that the "parties [must]
consent to [the stipulations] admission." "This consent must be manifested
in some manner before the military judge may receive the stipulation, although
the rule does not specify any particular form for the manifestation, as
this rests within the discretion of the trial judge." Drafters Analysis
of RCM 811(c), Manual, supra at A21-47.
Furthermore, the Discussion to RCM 811(c) provides
in part as follows:



Ordinarily, before accepting any stipulation
the military judge should inquire to ensure that the accused understands
the right not to stipulate, understands the stipulation, and consents to
it.
If the stipulation practically amounts to a
confession to an offense to which a not guilty plea is outstanding, it
may not be accepted unless the military judge ascertains: (A) from the
accused that the accused understands the right not to stipulate and that
the stipulation will not be accepted without the accuseds consent; that
the accused understands the contents and effect of the stipulation; that
a factual basis exists for the stipulation; and that the accused, after
consulting with counsel, consents to the stipulation; and (B) from the
accused and counsel for each party whether there are any agreements between
the parties in connection with the stipulation, and, if so, what the terms
of such agreements are.



This analysis is much clearer than just indicating
that Bertelson applies. We know from the past that some of the language
in Bertelson, and certainly some of the language in Care,
would be inappropriate. Watruba, 35 MJ at 488. The majority is apparently
adopting some of the language from the Discussion to RCM 811(c) and some
of the requirements from Bertelson; but what it adopts from each
is unclear.
In any event, reading the record in context,
appellant was not contesting the facts, but he could not admit to two critical
elements. This is not an instance where there were other facts from which
appellant could raise a defense. Cf. Bertelson, 3 MJ at 317.
There appears to be a consensus, albeit in
varying degrees, among the federal circuits regarding the way they treat
confessional stipulations, defined as stipulations amounting to de
facto guilty pleas.1
No circuit seems willing to equate a confessional stipulation with a guilty
plea. However, most circuits that have examined this topic do afford some
constitutional protections to confessional stipulations. In particular,
they require that the trial judge inquire into whether the defendant entered
the stipulation voluntarily and intelligently. No circuit requires the
guilty plea colloquy delineated in Boykin v. Alabama, 395 U.S. 238
(1969), and codified in Fed.R.Crim.P. 11. Such a colloquy requires the
additional admonishments of the rights, such as to confrontation and cross-examination
of witnesses, which the defendant may give up through the stipulated trial.
The issues in this case could easily have been
avoided had defense counsel stated on the record that appellant could not
admit to the wrongfulness of his use of marijuana and cocaine, or the intent
to defraud for the bad check offenses, but would agree to the facts in
the stipulation. Further, counsel could have stated that appellant wanted
the benefit of the negotiated pretrial agreement, and had no witnesses
or evidence to call, but was relying solely on the stipulation of fact.
In the civilian sector, many of these issues
are avoided by allowing an Alford plea, see North Carolina
v. Alford, 400 U.S. 25 (1970); but such a plea is not permitted in
the military under Article 45, UCMJ, 10 USC § 845. An Alford
plea, or a plea as in this case, eliminates the risk of the defendant lying
or of a plea being made with a wink and a nod. There was nothing sinister
about the plea here, although I recognize the record could be clearer.
Just as we have permitted pleas in the past when the defendant could not
remember the elements of the offense, see United States v. Luebs,
20 USCMA 475, 43 CMR 315 (1971), we also should permit a plea like the
one in this case when there is no contest concerning the underlying facts.
Since Bertelson is based on Article
45, which in turn is taken largely from W. Winthrop, Military Law and
Precedents 277-78 (2d ed. 1920 Reprint), Congress has the option to
change Article 45 to permit Alford-type pleas; thus, eliminating
the issue we have in this case.
FOOTNOTE:
1 United States
v. Mejia-Alarcon, 995 F.2d 982, 991 (10th Cir. 1993) ("Certainly,
we would prefer that a district court address the defendant directly before
accepting a stipulation that goes to one or more elements of the Governments
case in order to ascertain whether the defendant understood the stipulation
and entered it voluntarily, and to determine whether the stipulation has
a factual basis.  However, we have held that a district courts failure
to do so does not constitute plain error, nor does it deprive the defendant
of due process, at least where the defendant was present in court and represented
by counsel at the time of the stipulation."); United States v. Lyons,
898 F.2d 210, 215 (1st Cir.), cert. denied,
498 U.S. 920 (1990) (While declining to extend Rule 11 to confessional
stipulations, the court does look to see if the trial judge "took special
pains to satisfy himself that the waiver was knowing and voluntary to
impress upon the defendant the significance of the choice to proceed by
stipulation."); United States v. Schuster, 734 F.2d 424 (9th
Cir. 1984), cert. denied, 469 U.S. 1189 (1985)
(Admonition by the trial judge of defendants right to confrontation is
required by Rule 11 only for pleas of guilty or nolo contendere,
not for stipulations tantamount to a guilty plea.); United States v.
Robertson, 698 F.2d 703, 710 (5th Cir. 1983) (Based heavily
on the facts of this case, "[w]e hold that a plea of not guilty by a defendant
represented by counsel, even coupled with an inculpatory stipulation, is
a plea of not guilty, and absent evidence of any prosecutorial overreaching,
the defendant is not entitled to the protections of Rule 11."); Wiley
v. Sowders, 669 F.2d 386, 389 (6th Cir. 1982)(per curiam)(Wiley
II)(While "an on-the-record inquiry by the trial court to determine whether
a criminal defendant has consented to an admission of guilt during closing
arguments represents the preferred practice ... we did not hold in Wiley
[I], and we do not now hold, that due process requires such a practice.");
United States v. Wray, 608 F.2d 722, 724 (8th Cir. 1979),
cert. denied, 444 U.S. 1048 (1980) (A stipulation
is "the equivalent of a formal bench adjudication ... [in which a judge]
applies the applicable law to determine whether the facts before him constitute
a criminal offense," and not the functional equivalent of a plea of guilty
or nolo contendere.); United States v. Garcia, 450
F.2d 287 (9th Cir. 1971) (On the filing of a stipulation amounting
to a de facto guilty plea, Rule 11 does not require extensive
examination of the defendant.); United States v. Dorsey, 449 F.2d
1104, 1108 (D.C. Cir. 1971) (The facts of this case do not require extending
the Brown rule, where "appellants case appears so weak as to suggest
the equivalence of a guilty plea ... due to the facts as developed in the
special officers testimony, not to the stipulations made at the trial.");
United States v. Brown, 428 F.2d 1100, 1103-04 (D.C. Cir. 1970)
(While the protections of Rule 11 do not apply where there is no explicit
plea of guilty, under the facts of this case, where defendant waives trial
on all issues except insanity, the judge should address the defendant personally
to determine "whether the waiver is made voluntarily with understanding
of the consequences of his act.").

Home
Page  |  Opinions 
|  Daily Journal 
|  Public Notice
of Hearings
