United States v. Stanton ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Ladarion D. STANTON, Airman First Class
United States Air Force, Appellant
No. 19-0449
Crim. App. No. 39161
Argued October 27, 2020—January 13, 2021
Military Judge: J. Wesley Moore
For Appellant: Captain Amanda E. Dermady (argued); Cap-
tain Brian L. Mizer, JAGC, USN (on brief); Mark C.
Bruegger, Esq.
For Appellee: Mary Ellen Payne, Esq. (argued); Colonel
Shaun S. Speranza and Lieutenant Colonel Brian C. Mason
(on brief).
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge STUCKY, Judges OHLSON and
SPARKS, and Senior Judge EFFRON, joined.
_______________
Judge MAGGS delivered the opinion of the Court.
Appellant asks that his “case be dismissed with prejudice
for breach of a material term of [his] pretrial agreement with
the convening authority.”1 Appellant argues that he and the
1 Stated in full, the assigned issue is:
The convening authority and Appellant entered into
an agreement that Appellant would be administra-
tively discharged in lieu of the sentence rehearing
authorized by the lower court. The convening au-
thority then proceeded with Appellant’s court-mar-
tial by approving a sentence of “no punishment” and
forwarding this case to the lower court for further
appellate review. Should this case be dismissed with
prejudice for breach of a material term of Appellant’s
pretrial agreement with the convening authority?
United States v. Stanton, No. 19-0449/AF
Opinion of the Court
convening authority formed the alleged pretrial agreement
when he requested an administrative discharge in lieu of trial
by court-martial and the convening authority approved this
request. Appellant asserts that a material term of this alleged
pretrial agreement was that the convening authority would
vacate an affirmed finding that Appellant was guilty of an of-
fense for which Appellant was facing a rehearing on sentenc-
ing. Appellant contends that the convening authority
breached this material term when he approved a sentence of
no punishment instead of vacating the finding of guilt and
dismissing the charge and specification with prejudice.
For reasons that we explain below, we conclude that the
convening authority’s approval of Appellant’s request for a
discharge in lieu of trial by court-martial was not a “pretrial
agreement” within the meaning of the Rules for Courts-
Martial (R.C.M.). We further conclude that, although the
convening authority made some other kind of agreement with
Appellant, the convening authority did not expressly or
implicitly promise to vacate the finding of guilt and dismiss
the charge and specification. We therefore answer the
assigned issue in the negative and affirm the finding and the
sentence in this case.
I. Background
A general court-martial found Appellant guilty of two
specifications of sexual assault, one specification of aggra-
vated sexual contact, and one specification of larceny of non-
military property of a value of $500 or less, in violation of Ar-
ticles 120 and 121, Uniform Code of Military Justice (UCMJ),
10 U.S.C. §§ 920, 921 (2012). The court-martial sentenced Ap-
pellant to a dishonorable discharge, confinement for ninety-
six months, forfeiture of all pay and allowances, reduction to
E-1, and a reprimand. The convening authority approved the
sentence as adjudged.
In Appellant’s first appeal, the United States Air Force
Court of Criminal Appeals (AFCCA) affirmed the finding with
respect to the larceny specification, but set aside the findings
United States v. Stanton, 80 M.J. 55 (C.A.A.F. 2020) (order granting
review).
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United States v. Stanton, No. 19-0449/AF
Opinion of the Court
on the sexual assault and aggravated sexual contact specifi-
cations. United States v. Stanton, No. ACM 39161, 2018 CCA
LEXIS 70, at *32, 2018 WL 1176463, at *10 (A.F. Ct. Crim.
App. Feb. 7, 2018) (unpublished). The AFCCA also set aside
the sentence. Id., 2018 WL 1176463, at *10. The AFCCA re-
manded the case for further proceedings and authorized a re-
hearing as to the findings that it had set aside and as to the
sentence. Id., 2018 WL 1176463, at *10.
On remand, the convening authority initially ordered a re-
hearing on findings on the set aside charge and specifications
and on the sentence. The convening authority, however, later
withdrew and dismissed without prejudice the set aside
charge and specifications. Before the rehearing on the sen-
tence occurred, Appellant requested an administrative dis-
charge in lieu of trial by court-martial. See Dep’t of the Air
Force, Instr. 36-3208, Administrative Separation of Airmen
para. 4.1.1. (July 9, 2004) [hereinafter AFI 36-3208] (“Airmen
may be discharged under this provision if they . . . [a]re sub-
ject to trial by court-martial; and . . . [r]equest discharge in
lieu of trial.”). Appellant made this request in a one-page
memorandum that he submitted to the convening authority.
The first paragraph stated: “I request that I be discharged
from the United States Air Force according to AFI 36-3208,
Chapter 4, in lieu of trial by court-martial.” In the remaining
paragraphs, Appellant acknowledged that he understood the
offense with which he was charged, that he might be dis-
charged under other than honorable conditions, and that if he
were tried by a summary court-martial, he could not receive
a punitive discharge. He also acknowledged that he had been
afforded the right to consult legal counsel and had received a
Privacy Act statement. Appellant and his defense counsel
signed this document.
The convening authority approved the request in a mem-
orandum stating simply: “The request for discharge in lieu of
trial by court-martial submitted by A1C Ladarion D. Stanton,
under AFI 36-3208, Chapter 4, is approved. I direct A1C Stan-
ton be discharged with an Under Other Than Honorable Con-
ditions service characterization.” The convening authority
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United States v. Stanton, No. 19-0449/AF
Opinion of the Court
signed this memorandum, and Appellant was administra-
tively discharged.2 Two days later, the convening authority
signed an order in which he found that a sentencing rehearing
on the larceny offense was impracticable and in which he ap-
proved a sentence of “no punishment.”
In his second appeal to the AFCCA, Appellant argued that
the convening authority’s approval of his administrative dis-
charge had the effect of dismissing the larceny specification.
See United States v. Stanton, No. ACM 39161 (reh), 2019 CCA
LEXIS 306, at *5, 2019 WL 3409927, at *2 (A.F. Ct. Crim.
App. July 16, 2019). The AFCCA, however, rejected this ar-
gument, concluding that an administrative discharge does
not terminate appellate jurisdiction over a court-martial and
that the convening authority did not dismiss the larceny spec-
ification. Id. at *5–7, 2019 WL 3409927, at *2–3. The AFCCA
also rejected Appellant’s argument that he and the convening
authority had formed an agreement in which Appellant had
agreed to accept an administrative discharge in exchange for
the convening authority’s setting aside the finding that he
was guilty of larceny and dismissing the charge. Id. at *8–10,
2019 WL 3409927, at *4. The AFCCA reasoned that the con-
vening authority had no power to set aside the finding of guilt
because it had already been affirmed on appeal. Id. at *9–10,
2019 WL 3409927, at *4. The AFCCA also reasoned that Ap-
pellant did not present evidence proving that the convening
authority had agreed to set aside or dismiss the larceny con-
viction as a condition of Appellant’s administrative discharge.
Id. at *10, 2019 WL 3409927, at *4. Accordingly, the AFCCA
declined to set aside the finding on the larceny charge and
specification, and affirmed the sentence of no punishment. Id.at *2–3, 2019 WL 3409927, at *1.
2 The parties do not explain in their briefs how Appellant’s
memorandum requesting a discharge or the convening authority’s
memorandum approving the request are part of the “record” as de-
fined in R.C.M. 1103(b)(2) or are “[m]atters attached to the record”
as defined in R.C.M. 1103(b)(3). See United States v. Jessie, 79 M.J.
437, 440–41 (C.A.A.F. 2020) (discussing what courts may review on
appeal). We consider these documents in this case without ruling
on this issue because neither party has objected to our considera-
tion of them.
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United States v. Stanton, No. 19-0449/AF
Opinion of the Court
We granted Appellant’s petition for review of the AFCCA’s
decision. Before addressing Appellant’s arguments to this
Court, we note that Appellant also contested the finding and
sentence from his court-martial in another forum. While his
case was pending before the AFCCA, Appellant sued the con-
vening authority and others in the United States District
Court for the District of Columbia, claiming that his larceny
conviction did not survive his administrative discharge.3 See
Stanton, 2020 U.S. Dist. LEXIS 59040, at *1, 2020 WL
1668039, at *1. The district court rejected Appellant’s argu-
ment with reasoning nearly identical to that of the AFCCA.
The district court determined that the convening authority
had no power to set aside the finding that he was guilty of the
larceny specification because the AFCCA had already af-
firmed it. Id. at *16, 2020 WL 1668039, at *6. In addition, the
district court rejected Appellant’s contention that he did not
receive the “benefit of his bargain” in requesting a discharge
in lieu of trial by court-martial. Id. at *19, 2020 WL 1668039,
at *7. The district court reasoned that this case differed from
a typical case in which an accused requests a discharge in lieu
of trial by court-martial. Id., 2020 WL 1668039, at *7. The
district court explained that in a typical case, the accused
makes the request for a discharge before trial but here the
accused made the request after the trial had already occurred
and the finding of guilt had already been affirmed. Id., 2020
WL 1668039, at *7. The district court concluded that in the
circumstances of this case, Appellant did receive the benefit
of his bargain, stating: “Here, Stanton’s sentence was abated,
which was the appropriate outcome for a discharge in lieu of
a re-sentencing hearing.” Id. at *21, 2020 WL 1668039, at *7.
3 Appellant initially styled this lawsuit as a petition for a writ
of habeas corpus. See Stanton v. Jacobson, Civil Case No. 19-699
(RJL), 2020 U.S. Dist. LEXIS 59040, at *1 n.1, 2020 WL 1668039,
at *1 n.1 (D.D.C. Apr. 3, 2020). The district court held that it did
not have jurisdiction to grant a writ of habeas corpus because 28
U.S.C. § 2241(c) precludes granting habeas relief unless a petitioner
is in custody. Id., 2020 WL 1668039, at *1 n.1. The district court,
however, determined that it could entertain a collateral attack in
the exercise of its federal question jurisdiction under 28 U.S.C.
§ 1331. Id., 2020 WL 1668039, at *1 n.1.
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United States v. Stanton, No. 19-0449/AF
Opinion of the Court
II. Discussion
A. Jurisdiction
This Court has jurisdiction to address the assigned issue,
which, to repeat, is whether “this case [should] be dismissed
with prejudice for breach of a material term of Appellant’s
pretrial agreement with the convening authority.” We agree
with the AFCCA’s decision that Appellant’s discharge during
the pendency of the court-martial proceedings did not remove
him from the jurisdiction of the court-martial, the AFCCA, or
this Court. See United States v. Davis, 63 M.J. 171, 177
(C.A.A.F. 2006) (holding that an administrative discharge
while a rehearing is pending does not terminate jurisdiction
over the person of the accused). We recognize that this Court
does not have jurisdiction to disturb administrative dis-
charges. See Clinton v. Goldsmith, 526 U.S. 529, 535–36
(1999) (holding that this Court did not have jurisdiction to en-
join the administrative separation of a servicemember). But
Appellant has not asked us to take any action with respect to
his administrative discharge. Instead, Appellant requests
only that we set aside the finding of guilt on a larceny speci-
fication and the sentence of no punishment that the AFCCA
affirmed in this case. Article 67(c), UCMJ, 10 U.S.C. § 867(c)
(2018), expressly grants this Court jurisdiction to act on such
requests. And in exercising such jurisdiction, we have previ-
ously considered precisely the kind of argument that Appel-
lant now makes, namely, that a convening authority breached
a term of a pretrial agreement. See United States v. Lundy,
60 M.J. 52, 60 (C.A.A.F. 2004) (holding that remedial action
is required when the government does not fulfill a material
provision in a pretrial agreement).
B. Pretrial Agreement
Appellant contends that he formed a “pretrial agreement”
with the convening authority when he submitted his request
for a discharge in lieu of trial by court-martial and the con-
vening authority approved this request. Focusing on the
words “in lieu of” in the phrase “in lieu of trial by court-mar-
tial,” Appellant contends that the “plain reading” of this
agreement was that he would be administratively discharged
and in exchange there would be no sentencing rehearing, the
finding on the larceny specification would be set aside, the
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Opinion of the Court
larceny specification would be dismissed, and he would no
longer have a criminal conviction. According to Appellant,
this bargain was beneficial to the Government because a
court-martial was unlikely to adjudge a punitive discharge at
a rehearing on the sentence.
We do not dispute that Appellant’s request for an admin-
istrative discharge, and the convening authority’s approval of
it, might be characterized as an agreement of some type. In-
deed, both the AFCCA and the district court appear to have
accepted Appellant’s contention that he and the convening
authority had formed a “bargain” in this case. Stanton, 2019
CCA LEXIS 306, at *9–10, 2019 WL 3409927, at *3; Stanton,
2020 U.S. Dist. LEXIS 59040, at *18–19, 2020 WL 1668039,
at *6–7. In addition, in United States v. Woods, 26 M.J. 372,
374 (1988), we previously described an officer’s request for
dismissal in lieu of trial by court-martial and the approval of
that request as an “agreement.”
We disagree, however, with Appellant’s argument that he
and the convening authority formed a “pretrial agreement”
within the meaning of the R.C.M. The argument is incorrect
because R.C.M. 705 imposes specific parameters on pretrial
agreements, and Appellant’s request for a discharge in lieu of
trial by court-martial and the convening authority’s approval
of that request do not fit within these parameters. In our
view, Appellant is attempting to fit a square peg into a round
hole.
To form a pretrial agreement, the accused must submit a
written offer to the convening authority. R.C.M. 705(d)(2).
This written offer must propose a bilateral agreement in
which the defense and the government each make promises
to the other. On one side, the proposed agreement may in-
clude “[a] promise by the accused to plead guilty to, or to enter
a confessional stipulation as to one or more charges and spec-
ifications, and to fulfill such additional terms or conditions
which may be included in the agreement and which are not
prohibited under this rule.” R.C.M. 705(b)(1). On the other
side, the proposed agreement may include:
[a] promise by the convening authority to do one or
more of the following:
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Opinion of the Court
(A) Refer the charges to a certain type of court-
martial;
(B) Refer a capital offense as noncapital;
(C) Withdraw one or more charges or specifica-
tions from the court-martial;
(D) Have the trial counsel present no evidence as
to one or more specifications or portions thereof; and
(E) Take specified action on the sentence ad-
judged by the court-martial.
R.C.M. 705(b)(2).
Appellant’s memorandum to the convening authority is
not such an offer. As described above, the memorandum re-
quests an administrative discharge and makes various ac-
knowledgments about the circumstances surrounding the re-
quest. The request does not propose an agreement in which
Appellant will promise to plead guilty, make a confession, or
fulfill any other term, and in which the convening authority
will make any of the authorized kinds of promises.
In addition, in a pretrial agreement, “[a]ll terms, condi-
tions, and promises between the parties shall be written.”
R.C.M. 705(d)(2). While we recognize that a written agree-
ment may contain some implied terms, and may incorporate
other terms by reference, what Appellant is arguing simply
goes too far. We see nothing in Appellant’s written request for
a discharge, the convening authority’s written approval of the
request, or in AFI 36-3208 that indicates that the convening
authority would vacate or set aside Appellant’s affirmed lar-
ceny conviction. Appellant nonetheless contends that the
“reasonable understanding of both A1C Stanton and the Gov-
ernment was that A1C Stanton’s administrative discharge
. . . was in place of continuing with his court-martial.” But in
our view, to find such a term not in the text of these docu-
ments, but instead based on inferences about what the parties
understood the words “in lieu of” to mean, would contradict
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Opinion of the Court
the writing requirement of R.C.M. 705(d)(2). For these rea-
sons, we conclude that Appellant and the convening authority
did not form a pretrial agreement under R.C.M. 705.4
C. Another Type of Enforceable Agreement
Although Appellant and the convening authority did not
form a “pretrial agreement” within the meaning of R.C.M.
705, the question arises whether they may have formed some
other type of agreement that this Court might enforce. In
Woods, an officer submitted a request to resign in lieu of trial
by court-martial shortly after referral of the charges to a gen-
eral court-martial. 26 M.J. at 373. While the Secretary of the
Army was reviewing the request, the court-martial tried the
officer, found him guilty, and sentenced him to dismissal and
confinement for seven months. Id. After the convening au-
thority approved the finding and sentence, but before his ap-
peal was resolved, the Secretary of the Army approved the
officer’s request and administratively discharged the officer.
Id. The officer contended that the administrative discharge
abated the case, and this Court agreed. Id. at 375. We held
that “a court-martial can neither deprive the Secretary of his
powers nor defeat a lawful agreement between an accused
and the Secretary.” Id. We therefore concluded that the court-
martial could not dismiss the officer. Id. Under Woods, there-
fore, an approved request for an administrative discharge is
an agreement that this Court can enforce.
The Government questions whether Woods is still valid af-
ter the Supreme Court’s decision in Goldsmith, 526 U.S. 529,
which the Government argues “reinforced this Court’s very
limited ability to address administrative matters.” In this
case, however, we need not decide whether Goldsmith limited
our decision in Woods. Even if we presume that Woods is still
4 Because we conclude that Appellant and the convening
authority did not form a pretrial agreement, we need not consider
additional questions such as whether the alleged agreement
contains prohibited terms. See R.C.M. 705(c)(1)(B) (prohibiting
terms that deprive the accused, among other things, of the right to
complete sentencing proceedings); United States v. Montesinos, 28
M.J. 38, 45 (C.M.A. 1989) (stating that a convening authority lacked
power on remand to set aside a finding of guilt because the
remanding court had not authorized the convening authority to set
aside the finding).
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Opinion of the Court
valid precedent, we still do not believe that the convening au-
thority did anything improper.
When Appellant requested a discharge “in lieu of trial by
court-martial” and the convening authority approved that re-
quest, we believe that the “trial” to be avoided was the resen-
tencing hearing, not the entire court-martial. A resentencing
hearing is a “trial” in the sense that it is a “formal judicial
examination of evidence and determination of legal claims in
an adversary proceeding.” Black’s Law Dictionary 1812 (11th
ed. 2019) (entry for “trial”). The convening authority logically
could approve an administrative discharge “in lieu of” a re-
sentencing hearing because the resentencing hearing had not
yet occurred. And that is apparently what the convening au-
thority intended, as evidenced by the civilian defense coun-
sel’s admission that he knew the convening authority was not
going to disturb the findings. In contrast, we have difficulty
seeing how the convening authority could approve an admin-
istrative discharge in lieu of the trial on the merits of the lar-
ceny specification because that part of the court-martial had
already occurred, the court-martial had found Appellant
guilty, the convening authority had approved the finding, and
the AFCCA had affirmed the finding. Looking at the entire
circumstances, we agree with the district court’s view that
Appellant received what he requested: “Stanton’s sentence
was abated, which was the appropriate outcome for a dis-
charge in lieu of a re-sentencing hearing.”5 Stanton, 2020 U.S.
Dist. LEXIS 59040, at *21, 2020 WL 1668039, at *7.
D. Additional Discussion
In this case, we decide that the convening authority did
not violate a material term of a pretrial agreement or any
other agreement. In reaching this conclusion, we take no po-
sition in this opinion on whether convening authorities should
or should not approve discharges in lieu of trial by court-mar-
tial when a case is remanded for resentencing. We are con-
cerned, however, that such requests and approvals might
5 The parties have not addressed whether this Court must fol-
low the district court’s decision as a matter of issue preclusion.
Given that we agree with the district court, we see no need to raise
the question of issue preclusion sua sponte.
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Opinion of the Court
again arrive at an appellate court, as it did in this case, with-
out review first by a military judge and without any clear in-
dication of how the administrative discharge paperwork be-
came part of the record. Absent further guidance on these
subjects by amendments to the UCMJ, the R.C.M., or appli-
cable service regulations, the counsel on both sides may face
uncertainty regarding any such arrangements.6
III. Conclusion
The decision of the United States Air Force Court of Crim-
inal Appeals is affirmed.
6 Future cases, for example, might raise issues regarding the
voluntariness of arrangements that effectively waive sentencing
proceedings and the role of the military judge in assessing the vol-
untariness and the content of such arrangements. We do not ad-
dress those issues in this case because the parties have not raised
them.
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