              U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                              No. ACM S32424
                          ________________________

                            UNITED STATES
                                Appellee
                                      v.
                         Darrion A. HOARD
              Airman Basic (E-1), U.S. Air Force, Appellant
                          ________________________

        Appeal from the United States Air Force Trial Judiciary
                         Decided 31 January 2018
                          ________________________

Military Judge: Matthew S. Ward.
Approved sentence: Bad-conduct discharge, confinement for six months,
and a reprimand. Sentence adjudged 19 July 2016 by SpCM convened
at Minot Air Force Base, North Dakota.
For Appellant: Major Annie W. Morgan, USAF; Captain Patrick A.
Clary, USAF.
For Appellee: Major Amanda L.K. Linares, USAF; Major Mary Ellen
Payne, USAF; Major Meredith L. Steer, USAF; Gerald R. Bruce, Es-
quire.
Before HARDING, SPERANZA, and HUYGEN, Appellate Military
Judges.
Senior Judge HARDING delivered the opinion of the court, in which
Judges SPERANZA and HUYGEN joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as
    precedent under AFCCA Rule of Practice and Procedure 18.4.
                          ________________________

HARDING, Senior Judge:
    In accordance with his pleas pursuant to a pretrial agreement (PTA), a mil-
itary judge found Appellant guilty of one specification of attempted larceny of
military property (a night vision device) in violation of Article 80, Uniform
                   United States v. Hoard, No. ACM S32424


Code of Military Justice (UCMJ), 10 U.S.C. § 880; two specifications of conspir-
acy (to steal and sell military property) in violation of Article 81, UCMJ, 10
U.S.C. § 881; one specification of unauthorized sale of military property (four
gunsights) in violation of Article 108, UCMJ, 10 U.S.C. § 908; and one specifi-
cation of larceny of military property (four gunsights) in violation of Article
121, UCMJ, 10 U.S.C. § 921. The military judge sentenced Appellant to a bad-
conduct discharge, confinement for six months, and a reprimand. The conven-
ing authority approved the sentence as adjudged.
    Appellant asserts the terms of his PTA required him to forfeit the marital
privilege in violation of public policy. We disagree, find no prejudicial error,
and affirm.

                                I. BACKGROUND
    Appellant conspired with his wife, A1C KB, to steal military property of a
combined value greater than $5,000.00 and then to sell the stolen military
property online. In furtherance of their conspiracy, Appellant and A1C KB suc-
cessfully stole and then sold four advanced combat optical gunsights. Their
attempt to steal a night vision device failed.
    Prior to trial, Appellant and the convening authority entered into a PTA in
which Appellant agreed to plead guilty and offered, among other terms, to co-
operate in the investigation and prosecution of A1C KB. In exchange, the con-
vening authority agreed to limit the amount of confinement he would approve.
Appellant now seeks to have this court find the following terms of the PTA to
violate public policy:
       Upon a grant of immunity from the General Court Martial Con-
       vening Authority . . . to truthfully answer any questions posed
       to me by counsel pertaining to, and to testify at any proceeding
       held pursuant to the Uniform Code of Military Justice (10 U.S.C.
       § 801, et seq.), concerning any offenses alleged against A1C [KB],
       to the extent I have knowledge of such offenses.
       To truthfully answer any questions posed to me by counsel per-
       taining to, and to assist counsel in the recovery efforts of, any
       stolen property of the United States Air Force of which I have
       knowledge, any stolen property of the United States Air Force
       as it pertains to this offer is specific to property specified in the
       Charges preferred against me on 10 May 2016, and any specific
       property in which I have knowledge that A1C [KB] has any in-
       volvement with.




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                   United States v. Hoard, No. ACM S32424


                                II. DISCUSSION
    Appellant argues three bases for why the challenged PTA terms should not
be enforced. First, Appellant characterizes the language that would require
him to testify against his spouse as being facially inconsistent with the spousal
incapacity privilege and improper compulsion. Second, Appellant argues the
terms are contrary to the public policy goal of encouraging marital harmony.
Finally, Appellant contends that, even if he waived his spousal incapacity by
agreeing to the terms, A1C KB’s potentially successful invocation of her confi-
dential communications privilege would frustrate Appellant’s ability to fulfill
his obligations under the PTA. We are not persuaded by any of these argu-
ments. We have reviewed the PTA and the military judge’s inquiry regarding
Appellant’s understanding of and voluntary decision to enter into it. We con-
clude, as did the military judge, that the PTA and the challenged terms in par-
ticular are in substantial compliance with law and regulation; that Appellant
voluntarily entered into the PTA; and that the PTA and its terms are not con-
trary to public policy.
A. Voluntary Waiver of Marital Privilege
    Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or con-
ditions of a PTA that are not voluntary or that deprive an accused of certain
rights. “The interpretation of a pretrial agreement is a question of law, which
is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169,
172 (C.A.A.F. 1999).
    A PTA may include “[a] promise to testify as a witness in the trial of an-
other person.” R.C.M. 705(c)(2)(B). “[N]o practice is more ingrained in our crim-
inal justice system than the practice of the government calling a witness who
is an accessory to the crime for which the defendant is charged and having that
witness testify under a plea bargain that promises him a reduced sentence.”
United States v. Singleton, 165 F.3d 1297, 1301 (10th Cir. 1999) (alteration in
original) (citations omitted). The challenged PTA terms fall squarely into this
permissible category. An additional consideration in Appellant’s case is, given
that the person he promised to testify against is his spouse, whether marital
privilege impacts the interpretation or propriety of the terms.
    As a general matter, a term of a PTA is not per se impermissible because it
requires waiver of a testimonial privilege. Criminal defendants may knowingly
and voluntarily waive many rights and Constitutional protections. See, e.g.,
Ricketts v. Adamson, 483 U.S. 1, 10 (1987); Boykin v. Alabama, 395 U.S. 238,
243 (1969); Johnson v. Zerbst, 304 U.S. 458, 465 (1938). Further, the United
States Supreme Court has held that “absent some affirmative indication of
Congress’ intent to preclude waiver, we have presumed that statutory provi-
sions are subject to waiver by voluntary agreement of the parties.” United
States v. Mezzanatto, 513 U.S. 196, 201 (1995). In particular, the United States

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                   United States v. Hoard, No. ACM S32424


Court of Appeals for the Armed Forces (CAAF) has held that waiver of eviden-
tiary objections is a permissible term of a PTA. United States v. Gibson, 29 M.J.
379 (C.M.A. 1990). A claim of privilege is essentially an evidentiary objection
to the admission of privileged evidence. In that sense, waiver of a testimonial
privilege is a waiver of an evidentiary objection to the admission of privileged
evidence.
    Marital privilege is articulated in Military Rule of Evidence (Mil. R. Evid.)
504 as two distinct privileges: the privilege to refuse to testify against one’s
spouse (spousal incapacity) and the privilege to refuse to disclose, or prevent
another from disclosing, any confidential communication made to the spouse
of the person. “[T]he witness-spouse alone has a [spousal-incapacity] privilege
to refuse to testify adversely; the witness may be neither compelled to testify
nor foreclosed from testifying.” Trammel v. United States, 445 U.S. 40, 53
(1980). In contrast, the confidential communication privilege may be claimed
by the spouse who made the statement or by the other spouse who heard it.
    Although the challenged terms of the PTA did not expressly use the termi-
nology of Mil. R. Evid. 504 and the marital privilege and did not squarely ad-
dress waiver of any such privilege, both terms clearly named Appellant’s
spouse, A1C KB, as a subject for investigation and future prosecution. Appel-
lant’s offer to answer questions, testify at any UCMJ proceeding, and other-
wise cooperate concerning any offenses alleged against his spouse carried with
it an implicit waiver of future claims by Appellant of marital privilege concern-
ing those offenses. To conclude otherwise would render the term devoid of any
consideration from Appellant in exchange for favorable action by the convening
authority.
    In Trammel, the petitioner’s spouse chose to testify against him. The Su-
preme Court concluded “[t]hat she did so after a grant of immunity and assur-
ances of lenient treatment [did] not render her testimony involuntary.” 445
U.S. at 53 (alteration in original). Likewise, Appellant’s offer to testify against
A1C KB in exchange for favorable action by the convening authority did not
render the implicit waiver of marital privilege a product of compulsion. Fur-
ther, Appellant stated during the PTA inquiry that he entered the PTA volun-
tarily and that no one forced or coerced him into making the offer to plead
guilty. We find no evidence in the record that Appellant was “compelled” or
coerced into waiving his spousal incapacity privilege. Instead, Appellant vol-
untarily exchanged testimony against his spouse for the PTA’s benefit to him
of a cap on confinement. In effect, he voluntarily waived the marital privilege
to the extent he could invoke spousal incapacity or claim the confidential com-
munications privilege on behalf of A1C KB.




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                   United States v. Hoard, No. ACM S32424


B. Public Policy and Marital Harmony
    Appellant argues the PTA terms must be nullified because they are con-
trary to the public-policy goal of “encouraging marital harmony.” We disagree.
    This court has adopted the principle that terms in a PTA are contrary to
public policy if they “interfere with court-martial fact-finding, sentencing, or
review functions or undermine public confidence in the integrity and fairness
of the disciplinary process.” United States v. Raynor, 66 M.J. 693, 697 (A.F. Ct.
Crim. App. 2008) (quoting United States v. Cassity, 36 M.J. 759, 762
(N.M.C.M.R. 1992)); United States v. Mitchell, 15 M.J. 238, 240–41 (C.M.A.
1983). Applying this principle, we observe that in some respects it is the mari-
tal privilege itself that must be justified as not contrary to public policy. In-
deed, evidentiary rules of privilege may interfere with court-martial functions
or undermine public confidence by rendering otherwise relevant and reliable
evidence inadmissible. In Trammel, the Supreme Court considered whether
the privilege against adverse spousal testimony promotes sufficiently im-
portant interests to outweigh the need for probative evidence in the admin-
istration of criminal justice. 445 U.S. at 51. The Court recognized the scholarly
debate that “testimonial exclusionary rules and privileges contravene the fun-
damental principle that the public . . . has a right to every man’s evidence” and
the notion that the privilege “must be strictly construed and accepted only to
the very limited extent that permitting a refusal to testify or excluding relevant
evidence has a public good transcending the normally predominant principle
of utilizing all rational means for ascertaining truth.” The Court then con-
cluded that vesting the privilege to testify adversely in the witness-spouse
alone “furthers the important public interest in marital harmony without un-
duly burdening legitimate law enforcement needs.” Id. at 50–53 (internal quo-
tation marks and citations omitted).
    Turning to the terms in Appellant’s PTA, we note waiver of the marital
privilege permits law enforcement, investigators, and prosecutors to use “all
rational means for ascertaining truth” regarding larceny and illegal sale of mil-
itary property. Id. at 50 (quoting Elkins v. United States, 364 U.S. 206, 234
(1960)). Rather than interfering with a court-martial function or the integrity
of the disciplinary process, the waiver of Appellant’s marital privilege furthers
the truth-seeking function and thus advances the public policy goals identified
in Raynor. In addition, the waiver reflected Appellant’s own balancing of his
best interests and marital harmony with A1C KB. As the Supreme Court ob-
served in Trammel, “[w]hen one spouse is willing to testify against the other
in a criminal proceeding – whatever the motivation – their relationship is al-
most certainly in disrepair; there is probably little in the way of marital har-
mony for the privilege to preserve.” Id. at 52. In this instance, Appellant chose
his interests over those of his spouse. Rather than being against public policy


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                    United States v. Hoard, No. ACM S32424


as claimed by Appellant, allowing a witness-spouse this voluntary choice re-
flects the resolution of the competing public policy interests.
    Were we to do as Appellant requests and categorically declare as prohibited
all PTA terms that explicitly or implicitly include waiver of marital privilege,
such a restriction would tend to work to the detriment of an accused. United
States v. Rivera, 46 M.J. 52, 54 (C.A.A.F. 1997). “A defendant can ‘maximize’
what he has to ‘sell’ only if he is permitted to offer what the prosecutor is most
interested in buying.” Mezzanatto, 513 U.S. at 208. R.C.M. 705(c)(1)(B) speci-
fies what an accused cannot offer and does not remove the marital privilege as
a potential bargaining chip.
    Appellant argues a third basis for voiding the terms of the PTA. Appellant
speculates that A1C KB, by invoking her privilege for confidential communica-
tions made during their marriage, could potentially prevent Appellant from
fulfilling his obligations to answer questions and testify. Because of this possi-
bility, Appellant argues the challenged terms of the PTA should be voided. We
disagree. Even if we assume the privilege applies, * it hardly follows that Ap-
pellant has not satisfied the PTA terms because A1C KB successfully asserts
her privilege. The PTA terms require Appellant to answer questions posed by
counsel and to testify. They do not require A1C KB to do or not do anything or
guarantee the admissibility of Appellant’s testimony.

                                 III. CONCLUSION
    The findings of guilt and the sentence are correct in law and fact and no
error materially prejudicial to the substantial rights of Appellant occurred. Ar-
ticles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the find-
ings and sentence are AFFIRMED.


                   FOR THE COURT


                   KATHLEEN M. POTTER
                   Acting Clerk of the Court




* An exception to the confidential communications privilege potentially narrows the
scope of any claim of marital privilege by A1C KB. Mil. R. Evid. 504(c)(1) provides that
“where both parties have been substantial participants in illegal activity, those com-
munications between the spouses during the marriage regarding the illegal activity in
which they have jointly participated are not marital communications for purposes of
the [confidential communications] privilege.”


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