United States v. Bradley ( 2010 )

UNITED STATES, Appellant
v.
Willie A. BRADLEY, Seaman
U.S. Navy, Appellee
No. 09-5002
Crim. App. No. 200501089
United States Court of Appeals for the Armed Forces
Argued September 23, 2009
Decided January 20, 2010
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., filed a separate opinion
concurring in the result. BAKER, J., filed a dissenting
opinion.
Counsel
For Appellant: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, and Brian K. Keller,
Esq. (on brief).
For Appellee: Lieutenant Brian D. Korn, JAGC, USN (argued).
Military Judges: John W. Rolph and Christopher D. Connor
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bradley, No. 09-5002/NA
Judge STUCKY delivered the opinion of the Court.
The Judge Advocate General of the Navy certified two issues
for review pursuant to Article 67(a)(2), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2006). The
certificate asks this Court to determine whether the United
States Navy-Marine Corps Court of Criminal Appeals (CCA) erred
by (1) finding that the military judge abused his discretion
when he denied the defense motion to disqualify trial counsel
from further participation in the case, and (2) setting aside
the findings and sentence without finding that the trial
counsels’ continued participation in the case resulted in
material prejudice to Appellee. This Court specified the
additional issue of whether, through his unconditional guilty
pleas, Appellee waived the ability to appeal the military
judge’s denial of his motion to disqualify trial counsel. We
hold that Appellee’s unconditional guilty plea waived his
ability to appeal the military judge’s denial of his motion to
disqualify trial counsel as well as the motion to dismiss. We
therefore do not reach the two certified issues.
I.
In the early morning of October 2, 2003, Appellee and three
other sailors were involved in a drive-by shooting. Appellee
and Master-at-Arms Second Class (MA2) Laprie D. Townsend fired
gunshots from MA2 Townsend’s vehicle at a Mitsubishi Galant
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containing three other sailors. One of the sailors in the
Galant was struck by a bullet but survived the incident.
Appellee agreed to a pretrial agreement (PTA) the same day
that charges were referred against him. As part of the PTA, he
agreed to testify against his co-actors in exchange for a grant
of testimonial immunity. In preparation for his testimony
against MA2 Townsend, Appellee met five times with Lieutenant
(LT) Carter D. Keeton, the assistant trial counsel in MA2
Townsend’s court-martial. Appellee subsequently testified on
behalf of the prosecution in MA2 Townsend’s court-martial.
After MA2 Townsend’s court-martial, Appellee withdrew from
his PTA and hired a civilian defense counsel. LT Keeton was
detailed as the lead trial counsel for the case. Prior to
trial, Appellee moved pursuant to Rule for Courts-Martial
(R.C.M.) 907(b)(2) to dismiss the charges and specifications,
arguing that the Government had made derivative use of his
immunized statements and testimony. The military judge
conducted a hearing, pursuant to Article 39(a), UCMJ, 10 U.S.C.
§ 839(a) (2006), in which both sides fully litigated the motion.
The military judge denied the motion to dismiss. During the
Article 39(a), UCMJ, hearing, the civilian defense counsel also
objected to LT Keeton’s remaining as trial counsel because he
had served as a witness during that hearing. The military judge
overruled the objection.
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Following this denial, Appellee negotiated a new PTA and
changed his pleas to guilty. During the providence inquiry, the
following exchange took place:
MJ: I believe that Seaman Bradley’s plea of guilty
also means that he gives up his right to appeal the
decision I made on his motion to dismiss.
Does the government agree with that?
TC: That is the government’s understanding, sir.
CDC: We agree that the motion to dismiss has been
waived. However, we don’t believe that your -- the
alternative relief we requested was denied, just
facing the trial counsel has been waived.
MJ: I’m sorry, what is the other issue?
CDC: The other issue -- the alternative relief that
we requested that you also denied was the trial
counsel should not participate further in the case.
We think that has not been waived.
MJ: So is Seaman Bradley entering a conditional
guilty plea?
CDC: No, sir.
TC: Excuse me, sir.
MJ: Yes.
TC: I guess we’d like to hear why the defense
believes that hasn’t been waived. It seems like that
it certainly would be pursuant to this [sic] guilty
pleas if it’s not a conditional plea. I guess we’re
just wondering what the reasoning is behind that and
maybe we can, you know, try to figure out, you know,
whether or not this is truly a conditional or
unconditional plea if they feel like they haven’t
waived that right.
CDC: Because, sir, the Kastigar case was -- has been
held to invalidate guilty pleas where prosecution was
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initiated as a result of the use of the immunized
testimony of an accused.
MJ: Yes, but I think that the Manual requires that if
you wish to preserve any issue for appeal --
CDC: Any issue, sir? I don’t think that’s true.
MJ: That may be where you’re right. Only certain
issues need to be in the form of a conditional guilty
plea. Is that your point?
CDC: Yes, sir. We have clearly waived the motion
with respect to the motion to dismiss. I agree with
that. But the alternative relief we requested, which
was the further participation of the trial counsel,
that does not depend upon your ruling. I mean, the
further moving in this case and forward does not rely
on your ruling. It’s not -- I mean he can providently
plead guilty if you’re right about that. Trial
counsel obviously is appropriately here. But I don’t
believe that we waive that.
MJ: But we are establishing for the record that --
CDC: It is an unconditional plea, sir.
MJ: -- it is an unconditional plea.
CDC: Yes, sir.
MJ: And only those issues that don’t require a
conditional plea would be preserved for appeal,
correct?
CDC: Correct, sir.
After the providence inquiry, the military judge convicted
Appellee of one specification of assault with a means likely to
cause grievous bodily harm and one specification of reckless
endangerment. Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928, 934
(2006). The convening authority approved the military judge’s
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sentence of a dishonorable discharge and confinement for forty-
eight months. The CCA set aside the findings and the sentence
in an unpublished opinion. Despite Appellee’s unconditional
guilty plea, the CCA found that “a de facto conditional plea”
existed as to the issue of LT Keeton’s continued participation
in the case. United States v. Bradley, No. NMCCA 200501089,
2008 CCA LEXIS 398, at *21, 2008 WL 5083894, at *7 (N-M. Ct.
Crim. App. Nov. 25, 2008) (unpublished). After the CCA denied
the Government’s motion for reconsideration, the Judge Advocate
General of the Navy certified the issues noted above for review.
II.
An unconditional plea of guilty waives all
nonjurisdictional defects at earlier stages of the proceedings.
United States v. Joseph, 11 M.J. 333, 335 (C.M.A. 1981); United
States v. Lopez, 20 C.M.A. 76, 78, 42 C.M.R. 268, 270 (1970);
United States v. Rehorn, 9 C.M.A. 487, 488-89, 26 C.M.R. 267,
268-69 (1958); United States v. Daughenbaugh, 549 F.3d 1010,
1012 (5th Cir. 2008); 2 Mark S. Rhodes, Orfield’s Criminal
Procedure Under the Federal Rules § 11:52 (2d ed. 1985 & Supp.
2009), and cases cited therein. R.C.M. 910(j) states “a plea of
guilty which results in a finding of guilty waives any
objection, whether or not previously raised, insofar as the
objection relates to the factual issue of guilt of the
offense(s) to which the plea was made.”
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R.C.M. 910(a)(2) provides for conditional guilty pleas as
an exception to the general rule. A conditional guilty plea is
a creature of statute or regulation; there is no constitutional
right to enter such a plea. See United States v. Kuchinski, 469
F.3d 853, 858-59 (9th Cir. 2006) (concluding that the
requirement that government consent to conditional plea is not
an unconstitutional violation of the separation of powers);
United States v. Davis, 900 F.2d 1524, 1526 (10th Cir. 1990);
see also United States v. Forbes, 19 M.J. 953, 954 (A.F.C.M.R.
1985) (stating that the discretion of the government to consent
and the military judge to approve a conditional plea “is not
subject to challenge by an accused”). This being the case, it
follows that compliance with the regulation is the sole means of
entering a conditional plea and preserving the issue on appeal;
such a plea cannot be implied. Manual for Courts-Martial,
United States, Analysis of the Rules for Courts-Martial at A21-
60 (2008 ed.) [hereinafter R.C.M. Drafters’ Analysis]; see
United States v. Pierre, 120 F.3d 1153, 1156 (11th Cir. 1997)
(stating that a conditional plea requires express government
consent under Fed. R. Crim. P. 11(a)(2); silence or inaction
cannot constitute consent).
Appellee’s guilty plea was expressly unconditional.
Nevertheless, the CCA determined that “the military judge’s
ambiguous advisement with regard to waiver, combined with the
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civilian defense counsel’s belief that the issue was preserved
for appellate review, were material factors in [Appellee’s]
decision to plead guilty,” and Appellee was “entitled to
appellate review of his motion to dismiss.” Bradley, 2008 CCA
LEXIS 398, at *19-*20, 2008 WL 5083894, at *6. The CCA found
that “a de facto conditional plea existed as to that issue, even
though the trial counsel did not expressly consent to a
conditional plea on the record.” Id. at *21, 2008 WL 5083894,
at *7 (citing United States v. Stewart, 20 C.M.A. 272, 274, 43
C.M.R. 112, 114 (1971)). The CCA then held that the military
judge had “abused his discretion when he did not disqualify the
prosecutors from further participation in the case and that
their continued participation resulted in a Kastigar violation.”
Id. at *24, 2008 WL 5083894, at *8 (referring to United States
v. Kastigar, 406 U.S. 441 (1972)).
Stewart was decided more than ten years before R.C.M.
910(a)(2) formally authorized conditional guilty pleas in 1984.
Compare R.C.M. 910(a)(2) with Manual for Courts-Martial, United
States para. 70 (1969 rev. ed.). More importantly, Stewart, and
the very few similar pre-R.C.M. 910 cases, e.g., United States
v. Williams, 41 C.M.R. 426 (A.C.M.R. 1969), are not authority
for implying conditional pleas under the present regulatory
regime. Rather, they evince a reluctance to impose waiver of
appellate review in a system in which conditional pleas were
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unavailable. Whatever the possible merits of this approach may
have been, the existence of the rule, and the availability of
such pleas, obviate the need for it. It is settled that
compliance with R.C.M. 910(a)(2) is now the sole means for
entering a conditional plea. “There is no right to enter a
conditional guilty plea. The military judge and the Government
each have complete discretion whether to permit or consent to a
conditional guilty plea.” R.C.M. Drafters’ Analysis app. 21 at
A21-60 (emphasis added). The CCA erred in concluding that there
was a de facto conditional guilty plea. Such a plea cannot be
implied; it can only be manifested by compliance with the rule.
The record is clear that neither the Government nor the military
judge consented to a conditional plea as required by R.C.M.
910(a)(2). Consequently, Appellee’s unconditional guilty plea
waived both the motion to dismiss and the objection to LT
Keeton’s presence on the prosecution team.
While the waiver doctrine is not without limits, those
limits are narrow and relate to situations in which, on its
face, the prosecution may not constitutionally be maintained.
United States v. Broce, 488 U.S. 563, 574-76 (1989) (double
jeopardy); Menna v. New York, 423 U.S. 61, 61-63 (1975) (same).
This is not such a situation, and the waiver doctrine therefore
applies.
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Nor does the application of the doctrine render Appellant’s
plea improvident. It is settled that a guilty plea will not be
rejected as improvident unless there is a substantial basis in
law or fact for doing so. United States v. Inabinette, 66 M.J.
320, 322 (C.A.A.F. 2008). Here, Appellant, represented by
experienced civilian defense counsel, explicitly entered an
unconditional plea of guilty. There is no allegation of
ineffective assistance of counsel, or that Appellant (who was
getting the benefits of a quite favorable pretrial agreement)
did not understand what he was doing. The possibility that he
thought the issue relating to the disqualification of trial
counsel would be preserved in the face of an unconditional
guilty plea does not render that plea improvident.
III.
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is set aside. The record of trial shall be
returned to the Judge Advocate General of the Navy for remand to
the Court of Criminal Appeals for further review pursuant to
Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006).
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United States v. Bradley, No. 09-5002/NA
EFFRON, Chief Judge (concurring in the result):
At trial, Appellee moved to dismiss the charges under
Kastigar v. United States, 406 U.S. 441 (1972), contending that
the trial counsel made improper use of Appellee’s immunized
testimony to prepare witnesses for trial. In the alternative,
Appellee moved to disqualify the trial counsel on the grounds
that the trial counsel’s intimate involvement with Appellee’s
immunized statements made it impossible for the trial counsel to
not use Appellee’s immunized statements against him at trial.
The military judge denied both motions. Appellee then entered a
guilty plea.
On appeal, the Court of Criminal Appeals reversed, holding
that the trial counsel should have been disqualified under
Kastigar. United States v. Bradley, No. NMCCA 200501089, 2008
CCA LEXIS 398, at *21, *24, 2008 WL 5083894, at *7, *8 (N-M. Ct.
Crim. App. Nov. 25, 2008) (unpublished). The certified and
specified issues ask us to determine whether Appellee preserved
appellate consideration of the military judge’s ruling on the
disqualification motion, and, if so, whether the military judge
erred.
The majority concludes that Appellee waived the
disqualification issue. On the basis of that conclusion, the
majority holds that the Court of Criminal Appeals erred in
United States v. Bradley, No. 09-5002/NA
reaching the disqualification issue, and the majority remands
the case for further proceedings before the lower court.
I respectfully disagree with the majority’s conclusion that
Appellee waived the disqualification issue. For the reasons set
forth below, I would conclude that: (1) Appellee preserved the
disqualification motion; (2) the military judge correctly denied
that motion; (3) under these circumstances, we may reverse the
decision of the court below dismissing the charges, and we may
remand the case for completion of appellate review; and (4) the
review upon remand should be limited to considering those
issues, if any, that would remain in light of the military
judge’s proper ruling on the motion to dismiss.
Part I analyzes the conditional nature of Appellee’s plea.
Part II addresses the merits of Appellee’s claim that the
military judge erred by denying the disqualification motion.
Part III considers the implications of waiver with respect to
the providence of Appellee’s plea.
I. THE PLEA COLLOQUY
Rule for Courts-Martial (R.C.M.) 910(a)(2) provides in
pertinent part:
With the approval of the military judge and
consent of the Government, an accused may enter a
conditional plea of guilty, reserving the right,
on further review or appeal, to review of the
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adverse determination of any specified pretrial
motion.
R.C.M. 910(j) provides that in the absence of a conditional
plea:
a plea of guilty which results in a finding of
guilty waives any objection, whether or not
previously raised, insofar as the objection
relates to the factual issue of guilt of the
offense(s) to which the plea was made.
During the plea colloquy, the defense expressly
distinguished between the motion to disqualify trial counsel and
the motion to dismiss the charge under Kastigar. The defense
preserved appellate consideration of the disqualification motion
and did not preserve appellate review of his Kastigar motion.
In the course of discussing the effect of Appellee’s plea
on appellate review, defense counsel expressly observed that the
guilty plea would not waive the disqualification issue. Defense
counsel noted that “the alternative relief we requested, which
was the further participation of the trial counsel, . . . does
not depend upon your ruling.” Defense counsel added: “I don’t
believe that we waive that.” In response to defense counsel’s
argument that Appellee’s disqualification motion would be
preserved on appeal under any type of plea, the military judge
stated: “That may be where you’re right. Only certain issues
need to be in the form of a conditional plea.”
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After requesting clarification of the defense position on
waiver, the prosecution offered no objection to the defense
counsel’s repeated assertion that the plea would not waive the
disqualification issue, nor did the prosecution assert that the
military judge erred in indicating agreement with the defense
view. In that posture, the prosecution’s position reflected
consent to the conditional nature of the plea. See United
States v. Carroll, No. NMCM 95 02201, 1996 CCA LEXIS 525, at *8
n.2, 1996 WL 927743, at *3 n.2 (N-M. Ct. Crim. App. Dec. 23,
1996) (unpublished) (finding trial counsel’s failure to object
to military judge’s improper advisement to accused regarding
waiver was sufficient consent for a conditional plea).
To the extent that the record reflects any ambiguity as to
the military judge’s approval and the prosecution’s consent with
respect to the conditional nature of the plea, the
responsibility for any lack of clarity rests with the military
judge and the prosecution, not the defense. In that regard, it
is noteworthy that the Government in the present appeal agrees
with the defense that Appellee’s guilty plea at trial did not
waive appellate consideration of the disqualification issue.
Brief for Appellant at 6-9, United States v. Bradley, __ M.J. __
(C.A.A.F. 2010) (No. 09-5002/NA).
The defense, by contrast, did not preserve the separate
motion to dismiss under Kastigar. At one point in the colloquy,
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defense counsel referred to the plea as “unconditional,” a term
that does not appear in the applicable rule. See R.C.M. 910
(listing guilty and not guilty pleas with or without exceptions,
substitutions, and other variations regarding lesser included
offenses; conditional pleas; and irregular pleas). The military
judge offered the following observation: “those issues that
don’t require a conditional plea would be preserved for appeal,
correct?” Defense counsel answered: “Correct, sir.”
The military judge asked whether Appellee’s guilty plea
would waive appellate consideration of the defense motion to
dismiss based upon Kastigar: “So, Seaman Bradley, let me just
confirm that you understand that by your plea of guilty you also
give up your right to appeal the decision I made on your motion
to dismiss. Do you understand that?” Appellee responded, “Yes,
sir.”
The majority concludes that the references in the record to
an “unconditional” plea establish that the plea waived appellate
consideration of disqualification. The majority observes, and I
agree, that “compliance with R.C.M. 910(a)(2) is now the sole
means for entering a conditional plea.” Bradley, __ M.J. at __
(9). R.C.M. 910(a)(2), however, does not refer to an
“unconditional” plea, and the rule does not require an accused
to invoke the word “condition,” or “conditional,” or any other
formal incantation to preserve appellate consideration of an
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issue. The rule does not even require the defense to reduce the
condition to a written submission -- in contrast to the former
version of the rule and Federal Rule of Criminal Procedure 11.
See R.C.M. 910(a)(2) (1984) (requiring condition be placed in
writing); Fed. R. Crim. P. 11(a)(2) (requiring same). The rule
requires nothing more than what we have in the present case.
The defense placed a condition on his plea -- the preservation
of his disqualification claim -- and the military judge
indicated agreement with that position. The Government did not
assert at trial, and does not contend on appeal, that the issue
was waived. In that context, we should address the lower
court’s ruling on the merits of the military judge’s decision to
deny Appellee’s disqualification motion.
II. THE RULING BY THE MILITARY JUDGE
ON THE MOTION TO DISQUALIFY TRIAL COUNSEL
The military judge denied Appellee’s motion to disqualify
trial counsel. The Court of Criminal Appeals relied on Kastigar
as authority for ruling that the military judge erred in denying
the disqualification motion. Bradley, 2008 CCA LEXIS 398, at
*24, 2008 WL 5083894, at *8. Kastigar, however, addresses the
question of whether charges should be dismissed, not whether
counsel should be disqualified. Even where dismissal of charges
is warranted under Kastigar, a prosecutor is not disqualified
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from participating in future proceedings if the subsequent
charges are based upon evidence wholly independent from the
evidence constituting a Kastigar violation. See, e.g., United
States v. Palumbo, 897 F.2d 245, 251-52 (7th Cir. 1990)
(dismissing indictment for the government’s failure to meet
Kastigar burden but allowing prosecutor to participate in future
prosecution based on wholly independent evidence).
In the present case, the record establishes that Appellee’s
plea waived appellate consideration of his motion to dismiss
under Kastigar. In that posture, his claim on appeal does not
arise under Kastigar but instead may be viewed as a typical
motion to disqualify trial counsel. Although a military judge
has the discretion to disqualify trial counsel for violating an
ethical standard, see, e.g., United States v. Humpherys, 57 M.J.
83, 88 (C.A.A.F. 2002), Appellee has not demonstrated that trial
counsel violated an ethical standard requiring disqualification.
The military judge did not abuse his discretion in denying the
disqualification motion, and the lower court erred in setting
aside the findings and sentence. In that posture, I agree with
the majority that a remand to the lower court is warranted for
completion of appellate review.
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III. THE PROVIDENCE OF APPELLEE’S PLEA
The issues certified by the Judge Advocate General and
specified by the Court did not address the providence of
Appellee’s pleas. A number of courts have held that a plea
should be vacated if the defendant reasonably believed it was
conditional but in fact waived issues the defendant intended to
preserve. See, e.g., United States v. Pierre, 120 F.3d 1153,
1157 (11th Cir. 1997); United States v. Carrasco, 786 F.2d 1452,
1454-55 (9th Cir. 1986) (vacating and remanding for new plea
because defendant reasonably believed that pretrial issues would
not be waived by guilty plea). In the military justice system,
an accused’s “misunderstanding as to a material term” in a plea
agreement invalidates a plea. United States v. Smith, 56 M.J.
271, 273 (C.A.A.F. 2002).
In the present case, defense counsel stated during the plea
inquiry that the disqualification issue would be preserved
notwithstanding Appellee’s guilty plea. The military judge
indicated agreement, responding: “That may be where you’re
right.” Immediately following the plea exchange, the military
judge confirmed that Appellee understood he would waive the
motion to dismiss. But the military judge did not make any
further inquiry regarding Appellee’s understanding as to whether
a guilty plea would waive the disqualification motion as well.
In light of the majority’s conclusion that Appellee waived his
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disqualification claim, the Court of Criminal Appeals will need
to determine whether he did so while believing he preserved that
claim for appeal; and, if so, whether his action represented a
material misunderstanding of his plea.
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BAKER, Judge (dissenting):
The Court goes fishing for waiver and catches it. There
are at least three problems with this approach.
First, Appellee did not unconditionally waive his motion to
remove trial counsel. To the contrary, he waived his Kastigar1
motion and preserved the motion to remove trial counsel. The
military judge, the Government, Appellee, and the Court of
Criminal Appeals all understood this to be the case.
Second, even if Appellee unconditionally pleaded guilty,
Rule for Courts-Martial (R.C.M.) 910(j), the rule on which the
majority relies, only reaches objections which are “relate[d] to
the factual issue of guilt.” If R.C.M. 910(j) reaches beyond
its plain text to cover motions to remove the majority does not
say so nor indicate how.
Third, because this Court has found waiver where none
exists, Appellee’s plea is improvident since it was conditioned
on Appellee’s understanding that his motion to remove trial
counsel was preserved for appeal. The Court of Criminal Appeals
concluded “that the military judge’s ambiguous advisement with
regard to waiver, combined with the civilian defense counsel’s
belief that the issue was preserved for appellate review, were
material factors in the Appellee’s decision to plead guilty.”
United States v. Bradley, No. NMCCA 200501089, 2008 CCA LEXIS
1United States v. Kastigar, 406 U.S. 441 (1972).
United States v. Bradley, No. 09-5002/NA
398, at *19-*20, 2008 WL 5083894, at *6 (N-M. Ct. Crim. App.
Nov. 25, 2008). The Government concedes this point as well:
“if the Government successfully argues that Appellee waived
review of the disqualification-of-Trial-Counsel issue, then
Appellee’s pleas become improvident and a rehearing is
required.” Nonetheless, this Court’s apparent concern about
appellate delay notwithstanding, the majority declines to find
Appellee’s plea improvident.
Discussion
This case revolves around the colloquy between the military
judge and defense counsel:
MJ: I believe that Seaman Bradley’s plea of guilty
also means that he gives up his right to appeal the
decision I made on his motion to dismiss.
Does the government agree with that?
TC: That is the government’s understanding, sir.
CDC: We agree that the motion to dismiss has been
waived. However, we don’t believe that your -- the
alternative relief we requested was denied, just
facing the trial counsel has been waived.
MJ: I’m sorry, what is the other issue?
CDC: The other issue -- the alternative relief that
we requested that you also denied was the trial
counsel should not participate further in the case.
We think that has not been waived.
MJ: So is Seaman Bradley entering a conditional
guilty plea?
CDC: No, sir.
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TC: Excuse me, sir.
MJ: Yes.
TC: I guess we’d like to hear why the defense
believes that hasn’t been waived. It seems like that
it certainly would be pursuant to this guilty pleas
[sic] if it’s not a conditional plea. I guess we’re
just wondering what the reasoning is behind that and
maybe we can, you know, try to figure out, you know,
whether or not this is truly a conditional or
unconditional plea if they feel like they haven’t
waived that right.
CDC: Because, sir, the Kastigar case was -- has been
held to invalidate guilty pleas where prosecution was
initiated as a result of the use of the immunized
testimony of an accused.
MJ: Yes, but I think that the Manual requires that if
you wish to preserve any issue for appeal --
CDC: Any issue, sir? I don’t think that’s true.
MJ: That may be where you’re right. Only certain
issues need to be in the form of a conditional guilty
plea. Is that your point?
CDC: Yes, sir. We have clearly waived the motion
with respect to the motion to dismiss. I agree with
that. But the alternative relief we requested, which
was the further participation of the trial counsel,
that does not depend upon your ruling. I mean, . . .
moving . . . forward does not rely on your ruling.
It’s not -- I mean he can providently plead guilty if
you’re right about that. Trial counsel obviously is
appropriately here. But I don’t believe that we waive
that.
MJ: But we are establishing for the record that --
CDC: It is an unconditional plea, sir.
MJ: -- it is an unconditional plea.
CDC: Yes, sir.
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MJ: And only those issues that don’t require a
conditional plea would be preserved for appeal,
correct?
CDC: Correct, sir.
MJ: Okay. So, Seaman Bradley, let me just confirm
that you understand that by your plea of guilty you
also give up your right to appeal the decision I made
on your motion to dismiss.
Do you understand that?
Emphasis added.
The majority concludes that “Appellee’s unconditional
guilty plea waived both the motion to dismiss and the objection
to [trial counsel’s] presence on the prosecution team.” United
States v. Bradley, __ M.J. __ (9) (C.A.A.F. 2010). This is
accurate regarding the motion to dismiss. It is not with
respect to the defense request to remove the trial counsel. The
problem here is that while the majority describes the nature of
an unconditional plea and appropriately eschews the notion of an
implied or de facto conditional plea, it fails to explain how or
why the defense motion to remove trial counsel was waived.
It is clear defense counsel understood the distinction
between a conditional and an unconditional plea and the
consequences for entering one as opposed to the other. It is
just as clear from the colloquy that defense counsel understood
that R.C.M. 910(j) applies to an objection that “relates to the
factual issue of guilt of the offense(s) to which the plea was
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United States v. Bradley, No. 09-5002/NA
made.” It is not clear why or how a motion to remove trial
counsel relates to the issue of guilt, beyond the general point
that all procedures at trial ultimately relate to the question
of guilt or innocence.
The motion to remove was the issue squarely before the
military judge. The military judge’s response -- “That may be
where you’re right” -- suggests that counsel may have had a
better understanding of the law than the military judge. In any
event, the military judge subsequently confirmed with Appellee
their mutual understanding that Appellee was waiving the ruling
on the motion to dismiss. There was no mention of the motion to
remove trial counsel. As a result, the lower court stated,
“[w]ithout ever resolving the waiver question with respect to
the denial of the motion to remove the trial counsel from the
case, the military judge accepted the Appellee’s guilty pleas.”
Bradley, 2008 CCA LEXIS 398, at *17-*18, 2008 WL 5083894, at *6.
Thus, the record indicates that the military judge, the accused
and defense counsel proceeded with the understanding that the
motion to remove trial counsel had been preserved. Is it,
therefore, the majority’s view that what the military judge says
or does in applying R.C.M. 910(j) is not relevant at all?
If defense counsel held an erroneous view of the law
regarding R.C.M. 910(j), the Court should say so and indicate
why. However, in my view defense counsel, the military judge,
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United States v. Bradley, No. 09-5002/NA
the Court of Criminal Appeals, and the Government on appeal got
it right. The request for removal of trial counsel did not
relate to the factual issue of guilt within the meaning of the
rule. Although related, the motion to dismiss and the request
to remove trial counsel were two separate issues and they were
treated as such during the plea inquiry. The motion to dismiss
was based on Kastigar, 406 U.S. 441, and related to evidentiary
problems for the Government that, according to defense counsel,
resulted from improper use of his client’s immunized statements.
In contrast, the motion to remove trial counsel, from
defense counsel’s perspective, was not integral to the motion to
dismiss. This is reflected in the request for alternative
relief by defense counsel which suggests, from his perspective,
that even if trial counsel’s conduct had not amounted to a
Kastigar violation, the prosecutor acted in a manner
“incompatible with his duties at the trial as to make him
ineligible.” See United States v. Hayes, 7 C.M.A. 477, 478, 22
C.M.R. 267, 268 (1957). Regardless whether or not Appellee
would have prevailed on this argument, he had the right to have
the issue addressed on appeal by this Court.
Having searched for waiver and discovered it, the majority
is confronted with a plea that was conditioned on an
understanding that the defense motion to remove trial counsel
was preserved. Appellee proceeded with his guilty plea with the
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understanding that he was not waiving the request for
alternative relief. As a result, the Government conceded in
this court that if waiver is found, then Appellee’s pleas were
improvident. The Court of Criminal Appeals reached the same
conclusion stating, “Civilian defense counsel’s belief that the
issue was preserved for appellate review, [was a] material
factor[] in the Appellee’s decision to plead guilty.” Bradley,
2008 CCA LEXIS 398, at *20, 2008 WL 5083894, at *6.
Nonetheless, the majority suggests that since Appellee had
competent counsel and a favorable plea agreement, there is no
substantial basis to set aside his plea. As the Chief Judge has
indicated in his separate opinion, there is legal support for
the view that Appellee’s apparently now mistaken belief that his
objection was preserved for review was enough to set aside the
plea in this case. Given this Court’s expressed concern for
appellate delay, hopefully the Government and the Court of
Criminal Appeals will promptly remedy this omission and return
the parties to their status quo ante.
In summary, the record in this case does not support the
conclusion that Appellee waived his request for removal of trial
counsel. In light of the majority’s conclusion that his motion
was waived, Appellee’s plea was not knowingly entered. As a
result, I respectfully dissent.
7