

   
   
   
   U.S. v. Villareal



IN THE CASE OF
United States, Appellee
v.
Joey VILLAREAL, Aviation Ordnanceman Airman
U.S. Navy, Appellant
 
No. 98-0200
Crim. App. No. 96-1234
 
UNITED STATES COURT OF APPEALS FOR THE ARMED
FORCES
Argued January 12, 1999
Decided September 28, 1999
COX, C.J., delivered the opinion of the
Court, in which CRAWFORD and GIERKE, JJ., joined. SULLIVAN and EFFRON,
JJ., each filed a dissenting opinion.

Counsel
For Appellant: Lieutenant
Dale O. Harris, JAGC, USNR (argued).
For Appellee: Lieutenant Commander
JoAnn W. Melesky, JAGC, USN (argued); Commander E. E. Irvin,
JAGC, USN, Colonel K. M. Sandkuhler, USMC, and Lieutenant James
E. Grimes, JAGC, USNR (on brief); Colonel Charles Wm. Dorman,
USMC, and Lieutenant Commander Christian L. Reismeier, JAGC, USN.
Military Judge: Kathleen P. Ramsay
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.

Chief Judge COX delivered the opinion of the
Court.
Appellant was convicted of one specification
each of violating a lawful general order by bringing a firearm onto a naval
installation, involuntary manslaughter, negligent discharge of a firearm,
obstructing justice, solicitation to obstruct justice, and carrying a concealed
weapon, in violation of Articles 92, 119, and 134, Uniform Code of Military
Justice, 10 USC §§ 892, 919, and 934, respectively. The court
members sentenced appellant "[t]o forfeit $400.00 pay per month for 10
years; to be reduced to E-1; to be confined for 10 years; [and] to be discharged
from the service with a dishonorable discharge."
Appellant raised two issues in his appeal,
and we specified an additional issue. 1/
First, he questions whether the military judge erred in denying his pretrial
motion to dismiss the charges due to unlawful command influence. Second,
he alleges that a specification for obstruction of justice is multiplicious
with another specification for solicitation to obstruct justice. In addition,
we raised the question whether the record was incomplete, in light of the
fact that the military judges findings of fact denying the defense motion
to dismiss on the ground of unlawful command influence were not included
in the record of trial.

FACTS
At the beginning stages of his trial, appellant
negotiated and entered into a pretrial agreement with the original convening
authority in his case, the Commanding Officer, Naval Air Station, Whidbey
Island, Washington -- Captain Schork.
After the pretrial agreement was signed by
all parties, but prior to pleas at trial, the convening authority unilaterally
decided to withdraw from the terms of the pretrial agreement. According
to testimony taken during the pretrial motion, and to the military judges
findings of fact, the reason the convening authority decided to withdraw
from the agreement was because of increasing pressure by the victims family
members, who
were vehemently opposed to entering into a
pretrial agreement that allowed appellant to plead to manslaughter instead
of murder. 2/
As a result of this pressure, the convening
authority sought advice by telephoning his "old friend and shipmate," who
happened to be the acting superior convening authority for this case. 3/
This superior convening authority, Captain Eckart, stated words to the
effect of "what would it hurt to send the issue to trial," in response
to Captain Schorks concerns about maintaining the original pretrial agreement.
After this conversation, and against the advice
of his staff judge advocate, Captain Schork withdrew from the pretrial
agreement. Following this withdrawal, the case was transferred to a third,
and completely separate convening authority - Commander, Naval Base Seattle.
During the pretrial motions stage of the trial,
the defense moved unsuccessfully to dismiss all charges, or in the alternative,
for specific performance of the pretrial agreement from which the original
convening authority had withdrawn. Appellants petition for extraordinary
relief, on the same grounds, was denied by the Court of Criminal Appeals
in an unpublished opinion dated September 27, 1995.
On November 20, 1995, we denied appellants
writ-appeal petition for review of a version of the first granted issue,
and on January 25, 1996, we denied a motion for reconsideration of that
decision. See 43 MJ 476 (1996). Appellant asked us to consider whether
unlawful command influence caused the revocation of his signed pretrial
agreement. We did not reach the merits of appellants contentions, instead
deciding that this issue was a matter to be reviewed during the course
of ordinary appellate review. Specifically, we stated: "If warranted, the
convening authority, the Court of Criminal Appeals, or this Court can grant
appellant relief, regardless of his pleas to the charges and specifications,
during the ordinary course of appellate review." Id. at 476.
We have now considered this claim, the other
granted issue, and the specified issue. We find, first, that appellant
did not suffer prejudice to his substantial rights because the forwarding
of the charges to a new general court-martial convening authority, after
any perceived taint arose, cured any appearance of unlawful command influence.
See Art. 59(a), UCMJ, 10 USC § 859(a). Second, the military
judge ruled that the challenged offenses were multiplicious for sentencing;
hence, appellant was not materially prejudiced by his failure to raise
this issue at trial. Finally, appellant was not prejudiced by the absence
from the record of the military judges specific findings on the motion
because appellant was in possession of them and was on notice as to what
those findings were. Accordingly, we affirm the decision of the court below.

DISCUSSION
ISSUE I
An allegation of unlawful command influence
is reviewed de novo. United States v. Wallace, 39
MJ 284, 286 (CMA 1994). If any findings of fact have been made in conjunction
with ruling upon a motion regarding unlawful command influence, these findings
are reviewed under a clearly erroneous standard. Id. Here, the military
judge made detailed findings of fact, and these findings are clearly supported
by the record. We accept them for our de novo analysis.
In this case, the convening authority revoked
his approval of a pretrial agreement, after all parties had signed it but
before appellant exercised any reliance thereon. The military judge decided
that this action, while not the result of unlawful command influence, gave
the appearance of unlawful command influence. Thus, in the military judge's
view, the telephone call, even though not initiated by the original convening
authoritys superior, nevertheless might give a member of the general public
the perception that military justice yields fixed results.
In United States v. Gerlich, 45 MJ 309
(1996), we addressed the issue whether a letter from the convening authoritys
superior suggesting that the convening authority set aside an Article 15
4/
punishment in order to refer the case to court-martial resulted in unlawful
command influence. Id. at 312. In that case, the original convening
authority testified that his superiors letter only caused him to reexamine
his position. Id. at 313. We observed that a subordinate officer
is in a tenuous position when it comes to evaluating the effects of unlawful
command influence being exerted on him or her. Id. Therefore, we
concluded that the Government did not meet its burden of proof in dispelling
at least the appearance of unlawful command influence, and because no curative
action had been taken, we reversed. Id. at 313-14; see also
United States v. Levite, 25 MJ 334 (CMA 1987). Unlike Gerlich,
here the subordinate convening authority initiated the contact with his
friend. We do not view this as unlawful command influence. RCM 104, Manual
for Courts-Martial, United States (1995 ed.); Art. 37, UCMJ, 10 USC §
837. In any event, even if the telephone call created an appearance of
unlawful command influence, a conclusion we need not reach here, it was
cured by the transfer of the case to a new convening authority for separate
consideration and action.
Appellant claims that even if there was no
unlawful command influence, he was materially prejudiced by the revocation
of the pretrial agreement, and thus he should be entitled to its specific
performance. See generally RCM 705. We recognize that appellants
subsequent sentence to 10 years confinement was more severe than the 5
years he would have received under the original pretrial agreement. However,
while appellant certainly was placed in a different position by the convening
authoritys decision to withdraw from the agreement, this is not the type
of legal prejudice that would entitle appellant to relief.
An accused does not have a constitutionally
guaranteed right to plead guilty. See Santobello v. New York,
404 U.S. 257, 262 (1971). However, under certain circumstances, specific
performance of a preexisting pretrial agreement will be ordered when an
accused has relied upon the agreement and performed some affirmative act
or ommission equating to detrimental reliance. See United States
v. Penister, 25 MJ 148, 152 (CMA 1987) (findings and sentence set aside
when Government withdrew from pretrial agreement after trial counsel encouraged
military judge to find accuseds pleas improvident); Shepardson v. Roberts,
14 MJ 354, 358 (CMA 1983) (Government is compelled to abide by a pretrial
agreement upon which an accused has detrimentally relied).
Such a situation does not exist in this case.
Here, appellant knew of the withdrawal from the pretrial agreement before
he had an opportunity to rely on it in any manner that would legally prejudice
his right to a fair trial. See RCM 705(d)(4)(B) ("The convening
authority may withdraw from a pretrial agreement at any time before the
accused begins performance of promises contained in the agreement[.]").
No pleas of guilty were entered in reliance on the agreements mitigating
action. In fact, appellant entered pleas of not guilty to all charges.
Appellant had the choice of entering pleas of guilty to some or all of
the charges, and may have received mitigating action from the court-martial,
and perhaps the convening authority, had he done so. See Art. 45,
UCMJ, 10 USC § 845; RCM 1001(f)(1); see also Shepardson,
14 MJ at 357. While there was no guarantee either way as to what would
happen without the pretrial agreement, appellant was not legally entitled
to such a guarantee under the circumstances of this case.
Certainly, when a convening authority unilaterally
pulls out of an agreement such as this one, it may not bode well for his
or her ability to enter into future agreements that might save the command
both time and money. However, in the military justice system, discretion
to plea bargain is a policy and leadership decision; it is not a legal
decision subject to the remedies that this Court offers.
Here, the transfer of this case to an impartial
convening authority cured any appearance of unlawful command influence.
Because this remedy was afforded to appellant in a timely manner -- prior
to his trial -- there is no further relief to be granted.

ISSUE II
For the first time on appeal, appellant claims
that his convictions for solicitation of obstruction of justice and obstruction
of justice are multiplicious for findings. At trial, the military judge
properly submitted both charges to the members to allow for contingencies
of proof by the prosecution. When the members convicted of both charges,
the military judge granted a defense motion to find these two charges multiplicious
for sentencing purposes. While defense counsel could have properly made
a motion to have the two offenses considered multiplicious for any purpose,
this motion was not made. We have held that the failure to raise such a
motion at trial waives the issue, absent plain error. See United
States v. Britton, 47 MJ 195, 198 (1997); United States v. Carroll,
43 MJ 487, 488 (1996).
Here, plain error cannot be found. The military
judge properly instructed the members that the two offences were to be
considered as one for their sentencing determinations. There is no indication
that the members did otherwise. Moreover, it is not plain on its face that
these two offenses would have been multiplicious for findings. See
id. at 489 (solicitation and conspiracy held to be separate offenses).
The same reasoning might well apply to solicitation to obstruct justice
and the subsequent obstruction of justice, if the completed crime requires
the agreement of two or more parties, as it did here. Under these circumstances,
there is no plain error.

SPECIFIED ISSUE
The specified issue is resolved against appellant.
Appellant acknowledges that the failure to include in the record of trial
the military judges special findings on the command influence motion did
not prejudice him at the lower court. However, appellant contends that
failure to include these findings in the record of trial nevertheless prejudiced
him because the staff judge advocate did not have the opportunity to comment
on whether clemency or other corrective action was warranted because of
the appearance of command influence. The staff judge advocate must have
been aware of appellants command influence argument and the judges findings
from the record of trial alone. This verbatim record was not misleading
or so incomplete as to prevent meaningful review regarding litigation of
the command influence motion. Here, appellant has not been substantially
prejudiced by its absence from the record of trial. See Art. 59(a).
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTES:
1/ The issues are:

I

WHETHER THE MILITARY JUDGE
ERRED IN DENYING APPELLANTS MOTIONS EITHER TO DISMISS WHERE UNLAWFUL COMMAND
INFLUENCE RESULTED IN APPELLANTS PRETRIAL AGREEMENT BEING WITHDRAWN, OR
TO ABATE THE PROCEEDINGS UNTIL THE SUBSTITUTE CONVENING AUTHORITY COMPLIED
WITH THE TERMS OF THE PRETRIAL AGREEMENT AS APPROVED BY THE ORIGINAL CONVENING
AUTHORITY.

II

WHETHER THE MILITARY JUDGE
ERRED IN INSTRUCTING THE MEMBERS THEY COULD CONVICT APPELLANT OF BOTH OBSTRUCTION
OF JUSTICE AND THE LESSER-INCLUDED OFFENSE OF SOLICITATION TO OBSTRUCT
JUSTICE.

Specified

WHETHER THE RECORD OF TRIAL
IS INCOMPLETE, IN LIGHT OF THE ABSENCE FROM THE RECORD OF TRIAL OF THE
MILITARY JUDGES FINDINGS OF FACT REGARDING THE DEFENSE MOTION TO DISMISS
ON THE GROUND OF UNLAWFUL COMMAND INFLUENCE, SEE RCM 1103(b)(3)(A)(iv).

2/ The original
pretrial agreement provided that appellant would plead guilty to some of
the charged offenses, including a plea for involuntary manslaughter (Art.
119, UCMJ, 10 USC § 919) instead of murder (Art. 118, UCMJ, 10 USC
§ 918). In return, the convening authority agreed to limit appellants
confinement to 5 years and his forfeitures to 1/2 of his pay per month
for a period of 60 months from the date of court-martial. Appellant would
obviously have benefited from this agreement, because although he was also
convicted of the lesser offense of manslaughter vice murder, he was convicted
of various other offenses for which the agreement would have allowed him
to be found not guilty. Moreover, the original pretrial agreement would
have limited appellants confinement to 5 years, and his court-martial
adjudged 10 years. The Court of Criminal Appeals reviewed appellants sentence
and reduced his confinement period to 7 1/2 years. Thus, appellant is serving
2 1/2 more years confinement than he would have under the original pretrial
agreement.
3/ The
superior command was Commander, Naval Air Forces Pacific, commonly referred
to as AIRPAC. Captain Eckart was the Chief of Staff to the Commander of
AIRPAC, Admiral Spane. On the day of the telephone call, Admiral Spane
was out of town; therefore, Captain Eckart was acting as the convening
authority.
4/ UCMJ,
10 USC § 815.
 
 
SULLIVAN, Judge (dissenting):
I have written previously in this case and
adhere to those views. See Villareal v. Ramsay, 43 MJ 476
(1996) (Sullivan, J., dissenting); see generally United
States v. Hagen, 25 MJ 78, 87-88 (CMA 1987) (Sullivan, J., concurring).
I must add a few additional comments in light of the majority opinion in
this case.
Article 37(a), Uniform Code of Military Justice,
10 USC § 837(a), states: "No person subject to this chapter may attempt
to coerce or, by any unauthorized means, influence . . . the action of
any convening . . . authority with respect to his judicial acts." There
is no "old friend and shipmate" exception to this rule, nor an exception
for the convening authority who first initiates the discussion with the
superior concerning the case. I agree with Judge Effron that United
States v. Gerlich, 45 MJ 309 (1996), controls. As I stated before:
"From the state of the record before us, it appears that a higher headquarters
may have improperly influenced a convening authority to withdraw from a
[pretrial agreement]." 43 MJ at 477.
As for prejudice, at the very least, appellant
is liable for 2 1/2 more years of confinement. Transferring this case to
a new convening authority, after appellant has unlawfully been denied the
benefit of his bargain, does not erase this stark reality. Moreover, the
majoritys trumpeting of the commands right to enter plea bargains as
somehow justifying this additional punishment is unconvincing. This right
is not absolute, and it must give way to the overarching concerns of due
process of law. See Art. 37.
In sum, the rule of law, not clandestine command
policy, controls our military justice system. U.S. Const., art. I, §
8, cl. 14; Art. 37; see also Weiss v. United States,
510 U.S. 163, 181 (1994) (that court has demonstrated its vigilance in
checking any attempts to exert improper influence over military judges).
The facts of this case, in my view, suggest the contrary. Accordingly,
I dissent.
 
 
EFFRON, Judge (dissenting):
When an accused alleging unlawful command influence
meets his burden of production by presenting evidence that reflects an
appearance of unlawful command influence, the burden shifts to the Government
to prove either that there was no unlawful command influence or that, even
if there was unlawful command influence, there was no prejudice to the
accused. See United States v. Gerlich, 45 MJ 309, 310 (1996).
In this case, the military judge found that "[t]here was, at least, the
appearance of improper command influence when CAPT Schork withdrew from
the [pretrial agreement] after the conversation with Acting AIRPAC [CAPT
Eckart], and against the advice of his [staff judge advocate]," but concluded
that she was powerless to provide an appropriate remedy.
The majority attempts to distinguish the present
case from Gerlich on the grounds that in Gerlich, the superior
officer initiated the alleged improper contact. This distinction is insignificant.
In military life, subordinates regularly contact their superiors on a wide
variety of matters. If such contacts provided superior officers with an
unrestricted opportunity to engage in unlawful command influence, Article
37, UCMJ, 10 USC § 837, would provide little protection to either
subordinates or accused servicemembers. The majority also notes that CAPT
Schork and CAPT Eckart were old friends. It is quite common in military
life for professional associations and shared hardships to ripen into deep
friendships. Members of the armed forces frequently must put aside such
friendships on a wide variety of matters, ranging from the preparation
of personnel ratings to orders that could place an old friend in harms
way. When a subordinate contacts a superior on a military justice matter
that rests within the discretion of the subordinate, the superior must
scrupulously avoid improper influence on the subordinate's discretion,
regardless of whether their relationship is otherwise characterized by
friendship.
In the present case, CAPT Schork, like the
convening authority in Gerlich, testified that his superior's comment
made him reexamine his position. The next day, CAPT Schork withdrew from
the pretrial agreement. In his testimony, CAPT Schork, like the convening
authority in Gerlich, attempted to deny that CAPT Eckart, through
his question, had exerted improper command influence. This Court has in
the past recognized that a subordinate may have difficulty "ascertaining
for himself or herself the actual influence a superior has on that subordinate."
Gerlich, 45 MJ at 313, citing United States v. Rosser, 6
MJ 267, 272 (CMA 1979); United States v. Zagar, 5 USCMA 410, 18
CMR 34 (1955); United States v. Adamiak, 4 USCMA 412, 15 CMR 412
(1954). Because the record is clear that it was the prompting of the acting
convening authority that caused CAPT Schork to rethink his position and
withdraw from the pretrial agreement, the military judge correctly identified
unlawful command influence.
I disagree with the majority's suggestion that
transferring the case to a different chain of command cured the unlawful
command influence. At the time of the contact between CAPT Schork and CAPT
Eckart, appellant had entered into a pretrial agreement. A convening authority
has discretion to withdraw from a pretrial agreement at any time before
the accused has begun performance. See RCM 705(d)(4)(B), Manual
for Courts-Martial, United States (1998 ed.). Like other discretionary
acts by officials in the court-martial process, however, such a withdrawal
cannot properly be the product of unlawful command influence.
In this case, the convening authority's discretion
was tainted by unlawful command influence. Transferring the case ensured
that any action taken after the transfer would be free from the taint of
unlawful command influence, but it did not remove the taint of unlawful
command influence from the discretionary action already taken.
Even though the new convening authority would
have had the right to withdraw from the pretrial agreement after the transfer,
the prejudice flows from the circumstances of the case. A decision to abide
by an agreement already in place is qualitatively different from the decision-making
process that goes into the negotiation of a new pretrial agreement. Appellant
was prejudiced by CAPT Schork's failure, after concluding that his conversation
with CAPT Eckart had at least the appearance of impropriety, to transfer
appellant's case with the original pretrial agreement intact. At that point,
until appellant acted in reliance on the agreement, the new convening authority
would have had the right to withdraw from the agreement, but appellant
would not have had the unfair burden of having to try to negotiate a new
agreement as a direct result of the unlawful command influence.

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