United States v. Williams , 2004 CAAF LEXIS 1289 ( 2004 )


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  •                               IN THE CASE OF
    UNITED STATES, Appellee
    v.
    Keith L. WILLIAMS, Jr., Specialist
    U.S. Army, Appellant
    No. 04-0208
    Crim. App. No. 20020327
    United States Court of Appeals for the Armed Forces
    Argued October 13, 2004
    Decided December 10, 2004
    ERDMANN, J., delivered the opinion of the Court, in which
    GIERKE, C.J., CRAWFORD, EFFRON and BAKER, JJ., joined.
    Counsel
    For Appellant: Captain Eric D. Noble (argued); Colonel Robert
    D. Teetsel, Colonel Mark Cremin, Lieutenant Colonel Mark
    Tellitocci, Major Allyson G. Lambert, and Captain Craig A.
    Harbaugh (on brief).
    For Appellee: Captain Mason S. Weiss (argued); Colonel Steven
    T. Salata, Lieutenant Colonel Theresa A. Gallagher, Lieutenant
    Colonel Mark L. Johnson, and Major Mark A. Visger (on brief).
    Military Judge:    Gary W. Smith
    This opinion is subject to editorial correction before final publication.
    United States v. Williams, Jr., No. 04-0208/AR
    Judge ERDMANN delivered the opinion of the Court.
    Specialist Keith L. Williams, Jr., was charged with two
    specifications of larceny, seven specifications of forgery and
    one specification of wrongfully opening mail, in violation of
    Articles 121, 123 and 134, Uniform Code of Military Justice, 
    10 U.S.C. §§ 921
    , 923 and 934 (2000) respectively.           Williams
    submitted an offer to plead guilty.         The convening authority
    accepted the offer and the parties entered into a pretrial
    agreement.
    At trial the military judge allowed the Government to
    withdraw from the pretrial agreement.            Williams subsequently
    entered pleas of guilty to all charges and specifications and
    was convicted on the basis of his pleas.           He was sentenced to a
    bad-conduct discharge, seven months confinement, forfeiture of
    all pay and allowances, reduction to pay grade E-1, and a fine
    of $2,300.00.
    In his appeal to the United States Army Court of Criminal
    Appeals, Williams claimed that the convening authority should
    not have been allowed to withdraw from the pretrial agreement.
    After receiving briefs, the Court of Criminal Appeals ordered
    the parties to submit affidavits.         Following receipt of the
    affidavits, the Court of Criminal Appeals affirmed the findings
    and sentence in a per curiam decision.
    We granted review of the following issue:
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    United States v. Williams, Jr., No. 04-0208/AR
    WHETHER THE TRIAL COUNSEL AND STAFF JUDGE ADVOCATE
    UNLAWFULLY BREACHED THE PRETRIAL AGREEMENT BECAUSE
    APPELLANT WAS NOT AFFORDED A REASONABLE OPPORTUNITY TO
    COMPLY WITH THE RESTITUTION PROVISION AFTER HE WAS GIVEN
    NOTICE OF THE AMOUNT OF SAID RESTITUTION AND BECAUSE THE
    CONVENING AUTHORITY DID NOT PERSONALLY MAKE THE DECISION TO
    WITHDRAW.
    We hold that Rule for Courts-Martial [R.C.M.] 705(d)(4)(B)
    provided a proper basis for the Government’s withdrawal and
    therefore affirm the decision of the Court of Criminal Appeals.
    BACKGROUND
    Williams’ difficulties began when a Government travel card
    issued to another service member was inadvertently placed in his
    mailbox.   Williams obtained a personal identification number for
    the card and used the card to purchase various items from the
    commissary and to make cash withdrawals.         He offered to plead
    guilty and enter into a stipulation of fact.        The agreement
    contained a separate term that required Williams to reimburse
    the victims “once those individuals and the amounts owed have
    been ascertained.”     In return, the convening authority would
    disapprove any confinement in excess of six months.        The
    convening authority agreed to the offer and the pretrial
    agreement was effectuated.
    Several days prior to trial there were discussions between
    the trial counsel and Williams’ defense counsel concerning the
    restitution provision.      Williams’ defense counsel indicated that
    Williams might not be able to make restitution before trial.
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    United States v. Williams, Jr., No. 04-0208/AR
    The Government’s position was that Williams was required to make
    restitution before entering his plea.
    On the day of trial, Williams had not made restitution and
    the Government informed the military judge that because of that
    failure, it was withdrawing from the pretrial agreement.
    Williams moved for specific performance of the agreement,
    arguing that performance had commenced because he had already
    entered into the stipulation of fact and had not breached any
    material portion of the agreement.         In response, the Government
    conceded that as a result of its withdrawal from the pretrial
    agreement, it would also have to withdraw from the stipulation
    of fact.    Williams’ defense counsel acknowledged that the
    stipulation would not be entered into evidence or otherwise
    used.    The military judge then ruled:
    All right. Well, I do find that the government is free at
    this point under R.C.M. 705, the convening authority is
    free to withdraw from the pretrial agreement based upon
    failure to fulfill a material promise or condition in the
    agreement. It would have been much better had the -- had
    it been spelled out in writing in the Offer to Plead
    Guilty, that it was before trial and not -- then we
    wouldn't have this issue at all. So, I do find that the
    prosecution is free to -- the convening authority is free
    under that rule to withdraw from the pretrial agreement.
    Following that ruling the defense asked "to note for the
    record" that there had been no proffer or evidence from the
    Government as to the victims and amounts at issue.        The trial
    counsel advised the military judge that the Bank of America was
    the victim and that the Government had been "working with" the
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    United States v. Williams, Jr., No. 04-0208/AR
    defense to contact representatives of the bank "to figure out a
    way to pay them."     The military judge asked the Government what
    the specific amount of the restitution was, at which point trial
    counsel advised that "just going with the amount of larceny, we
    find the total of $2,302.01."        That amount corresponds with the
    amount set forth in the charge sheet.
    After confirming that Williams could not "comply with that
    term at this point," the military judge stated that he was
    adhering to his ruling and that Williams' motion to compel
    specific performance of the pretrial agreement was denied.
    Williams then pleaded guilty without the benefit of a
    pretrial agreement and was sentenced to a bad-conduct discharge,
    seven months confinement, forfeiture of all pay and allowances,
    reduction to pay grade E-1, and a fine of $2,300.00.       The
    convening authority approved the sentence.       Had the pretrial
    agreement been in effect, he would have been obligated to
    disapprove confinement in excess of six months.       As there were
    no limitations in the agreement as to any other aspect of
    Williams' sentence, it is the difference between six and seven
    months that serves as the basis for Williams' appeal.
    DISCUSSION
    Williams has not asked us to reject his guilty plea.
    Rather, he has asked us for a one month reduction in the
    duration of his confinement, consistent with the terms of the
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    disputed pretrial agreement.       He also asks us to set aside his
    fine, which closely approximates the amount of his larcenies.
    As his claim involves an interpretation of the pretrial
    agreement, our review here is de novo.           United States v.
    Acevedo, 
    50 M.J. 169
    , 172 (C.A.A.F. 1999).
    Under R.C.M. 705(d)(4)(B), the convening authority may
    withdraw from a pretrial agreement:
    (1) at any time before an accused begins performance of his
    or her promises under the agreement;
    (2) upon the failure of an accused to fulfill any material
    promise or condition in the agreement;
    (3) when inquiry by the military judge discloses a
    disagreement as to a material term in the agreement; or
    (4) if findings are set aside because a guilty plea is
    deemed improvident on appellate review.
    The military judge determined that withdrawal was authorized by
    virtue of Williams' failure to fulfill a material promise or
    condition in the agreement.       Williams contends that the military
    judge erred in allowing the withdrawal because (1) he had begun
    performance of his obligations under the agreement and (2) none
    of the other circumstances listed in R.C.M. 705(d)(4)(B) were
    present.
    The language at issue in the pretrial agreement provides:
    “I agree to reimburse the victim or victim(s) of the larcenies
    for which I have been charged, once those individuals and the
    amounts owed have been ascertained.”         This language is not a
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    United States v. Williams, Jr., No. 04-0208/AR
    model of clarity and does not provide a date certain for payment
    of the reimbursement.      Williams consequently argues that the
    language does not require that the restitution be made prior to
    trial.   He asserts that a plain reading of the language
    indicates that if the amount and identity of the victim have not
    been ascertained prior to trial, the pretrial agreement is not
    affected because he would be allowed to make reimbursement after
    trial.   The Government argues that the identity of the victim
    and the amount of reimbursement were not in dispute from the day
    the charges were preferred.       The charge sheet, bank records and
    other documents in the case file identified the Bank of America
    as the victim of the larcenies and the total amount stolen as
    $2,302.01, the same figure the Government provided at trial to
    the military judge.
    We have long emphasized the critical role that a military
    judge and counsel must play to ensure that the record reflects a
    clear, shared understanding of the terms of any pretrial
    agreement between an accused and the convening authority.
    United States v. Felder, 
    59 M.J. 444
    , 445 (C.A.A.F. 2004)(citing
    United States v. King, 
    3 M.J. 458
     (C.M.A. 1977) and United
    States v. Green, 
    1 M.J. 453
     (C.M.A. 1976)).       Whatever else the
    record reflects in this case, the exchange between the parties
    and the military judge plainly demonstrates something far short
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    United States v. Williams, Jr., No. 04-0208/AR
    of "a clear, shared understanding" of the disputed restitution
    provision.
    Accordingly, we need not determine whether Williams'
    execution of a stipulation of fact constituted the beginning of
    performance or whether the military judge properly concluded
    that Williams had “fail[ed] to fulfill a material promise or
    condition in the agreement.”       Rather, this is an instance in
    which the parties had an underlying disagreement as to the
    restitution clause itself.       The President has set forth four
    alternative circumstances in R.C.M. 705(d)(4)(B) under which the
    convening authority is authorized to withdraw from a pretrial
    agreement.    The third circumstance is when an “inquiry by the
    military judge discloses a disagreement as to a material term in
    the agreement.”
    A distinct, separate provision offering to make restitution
    can provide a significant inducement for a convening authority
    to accept an accused’s offer to plead guilty.      See R.C.M.
    705(c)(2)(C).    Here the record on appeal demonstrates that
    Williams sought a more favorable pretrial agreement by extending
    an offer to make restitution and reflects the significance
    attached by the convening authority to that offer.      Under those
    circumstances, there can be little doubt that the restitution
    provision was “material” to the resultant pretrial agreement.
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    The inquiry conducted by the military judge clearly
    established "a disagreement as to a material term in the
    agreement," and that circumstance alone provides a factual and
    legal basis for the convening authority to withdraw.        Although
    the military judge’s inquiry did not focus on the "disagreement
    as to a material term" component of R.C.M. 705(d)(4)(B), his
    inquiry and the record nonetheless demonstrate that as a proper
    basis for withdrawal under the rule.         Because the withdrawal
    provisions of R.C.M. 705(d)(4)(B) are disjunctive, we need not
    determine whether there was specific performance or detrimental
    reliance upon the agreement by Williams.         Nor do we need to
    address what remedies might be appropriate in a case involving
    detrimental reliance.
    We do not hold today that a convening authority may
    withdraw from a pretrial agreement by simply claiming that a
    disagreement exists.      Rather, the President has required that
    the existence of a disagreement and the materiality of the terms
    at issue be ascertained by the military judge through his or her
    inquiry.   That requirement reflects the critical role that a
    military judge plays during a plea colloquy in ensuring that the
    record reflects a clear, shared understanding by the parties of
    the terms of the agreement.       Felder, 
    59 M.J. at 445
    .
    We also reject Williams' claim that the withdrawal was
    improper because the convening authority did not personally make
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    United States v. Williams, Jr., No. 04-0208/AR
    the decision to withdraw.       When the staff judge advocate (SJA)
    recommended to the convening authority that Williams’ offer to
    plead guilty be accepted, he was induced to do so based on
    Williams’ offer to make restitution.         Following their discussion
    about this case, the SJA believed that the restitution provision
    was the reason the convening authority approved the offer and he
    left the office with the clear understanding that if there were
    no restitution prior to trial, there was no deal.
    As the SJA knew the circumstances under which the convening
    authority approved the offer, once those circumstances were no
    longer present, the trial counsel who had communicated with the
    SJA on this matter could effect the Government’s withdrawal from
    the pretrial agreement.      Cf. Satterfield v. Drew, 
    17 M.J. 269
    ,
    273 (C.M.A. 1984)(noting trial counsel authorized to take
    necessary, usual, and proper actions to accomplish or perform,
    the main authority expressly delegated to him).
    DECISION
    The decision of the United States Army Court of Criminal
    Appeals is affirmed.
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