United States v. Barmeyer ( 2022 )

This opinion is subject to administrative correction before final disposition.
Before
GASTON, HOUTZ, and MYERS
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Justin T. BARMEYER
Private First Class (E-2), U.S. Marine Corps
Appellant
No. 202000169
Decided: 5 January 2022
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judges:
Lawrence C. Lee (arraignment)
Andrea C. Goode (motions and trial)
Sentence adjudged 26 May 2020 by a general court-martial convened at
Marine Corps Base Camp Pendleton, California, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: reduction to
E-1, confinement for 49 months, and a bad-conduct discharge. 1
For Appellant:
Lieutenant Commander Hannah Eaves, JAGC, USN
1 The military judge ordered 328 days of confinement credit—including 30 days for
illegal pretrial punishment in violation of Article 13, Uniform Code of Military Justice
[UCMJ], 10 U.S.C. § 813—against Appellant’s adjudged term of confinement.
United States v. Barmeyer, NMCCA No. 202000169
Opinion of the Court
For Appellee:
Captain Nicole A. Rimal, USMC
Major Kerry E. Friedewald, USMC
_________________________
This opinion does not serve as binding precedent, but
may be cited as persuasive authority under
NMCCA Rule of Appellate Procedure 30.2.
_________________________
PER CURIAM:
Appellant was convicted, pursuant to his pleas, of fraudulent enlistment,
willfully disobeying a superior commissioned officer, wrongful use of controlled
substances, attempting to transport and transporting illegal aliens within the
United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii), and disrespect toward
sentinels, in violation of Articles 80, 83, 90, 95a, 112a, and 134, UCMJ. He
asserts two assignments of error: (1) the military judge erred in denying Ap-
pellant’s waiver of his rights under Article 13, UCMJ, creating a delay that
prompted the Government to rethink its commitment to Appellant’s beneficial
pretrial agreement and subsequently withdraw from it for no valid reason; and
(2) the military judge erred by allowing the convening authority to withdraw
from the initial pretrial agreement after Appellant had begun substantial per-
formance of his promises under that agreement. We find no prejudicial error
and affirm.
I. BACKGROUND
Appellant had a checkered two years of service in the United States Marine
Corps. In June 2018, he procured his enlistment through fraud by failing to
disclose prior marijuana use. From December 2018 through the summer of
2019, he wrongfully used marijuana, methylenedioxymethamphetamine, ly-
sergic acid diethylamide, and cocaine. During this time, he also became in-
volved in transporting illegal aliens from the Mexican border to Los Angeles,
California, which he did on four occasions for the purpose of receiving between
$500 and $1000 until he was apprehended by the U.S. Border Patrol.
2
United States v. Barmeyer, NMCCA No. 202000169
Opinion of the Court
Appellant was charged with these and other offenses, to include the sexual
assault of a child under the age of 16 years, “Jennifer.” 2 After the charges were
referred to general court-martial, Appellant signed a pretrial agreement with
the convening authority in which he agreed to plead guilty to various of-
fenses—excluding the sexual assault of Jennifer—in exchange for suspension
of any adjudged confinement in excess of 42 months. The agreement also pro-
vided that if Appellant committed any further misconduct, the convening au-
thority could withdraw from the agreement.
At the Article 39(a), UCMJ, session conducted to receive Appellant’s guilty
pleas, the military judge asked if the Defense wanted to raise any motions, to
include a motion regarding illegal pretrial punishment under Article 13,
UCMJ. Appellant’s trial defense counsel told the military judge he had con-
cerns about potential Article 13 violations while Appellant was in pretrial con-
finement, but intended to present those issues as evidence in mitigation during
sentencing. He went on to state, “I did not file a motion because of certain rep-
resentations made by the Government; that if any motions were filed, that they
would pull out of the agreement.” 3 Upon hearing this, rather than proceed with
Appellant’s guilty pleas and sentencing, the military judge denied the Defense
request to waive Appellant’s Article 13 claims, directed the parties to brief the
Article 13 issue (including the waiver issue), and scheduled a hearing four days
later to address it.
At the following Article 39(a) session, the military judge stated the previous
session had been cut short due to her concern about “whether there was a meet-
ing of the minds between the parties with regards to defense counsel’s ability
to file an Article 13 motion and still retain the benefit of the pretrial agree-
ment.” 4 Noting that the pretrial agreement contained no provision waiving Ap-
pellant’s right to file motions, she expressed her concern about whether Appel-
lant’s waiver of his Article 13 claims was knowing and intelligent under the
circumstances. As the Defense had filed a motion on the Article 13 issue, the
military judge then asked whether Appellant wanted her to consider the mo-
tion or wished to waive his Article 13 claims. Appellant’s trial defense counsel
2 All names in this opinion, other than those of Appellant, the judges, and counsel,
are pseudonyms.
3 R. at 50.
4 R. at 56, 168.
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United States v. Barmeyer, NMCCA No. 202000169
Opinion of the Court
stated that Appellant “want[ed to] continue and move forward with the mo-
tion.” 5 Appellant testified in support of the motion, and the military judge
awarded 30 days’ confinement credit under Article 13.
Among the Article 13 issues litigated was Appellant’s claim that he did not
receive timely treatment for a sexually transmitted infection [STI] while in
pretrial confinement. Upon learning about Appellant’s STI, the trial counsel
conveyed this information to the mother of Jennifer, the alleged victim of the
sexual assault charge. When Jennifer subsequently tested positive for the
same STI, she withdrew her support for the pretrial agreement and expressed
her desire to participate in Appellant’s court-martial. The convening authority
then withdrew from the pretrial agreement.
The Defense filed a motion to compel specific performance of the pretrial
agreement, which was litigated at a third Article 39(a) session. At the hearing,
the military judge found that Appellant had begun performance under the pre-
trial agreement by entering into a stipulation of fact and announcing his forum
selection. She reserved ruling on whether Appellant had failed to fulfill any
material promise or condition of the agreement, which would have permitted
the convening authority to withdraw from it. She set a deadline for the parties
to submit additional evidence bearing on this issue and scheduled an addi-
tional Article 39(a) session to address it.
Prior to that Article 39(a) session, evidence surfaced that Appellant had
committed additional misconduct after signing the pretrial agreement by dis-
respecting sentinels on several occasions while in pretrial confinement. An ad-
ditional charge with four specifications of violation of Article 95a, UCMJ, was
preferred alleging this misconduct.
Appellant then elected to sign a new plea agreement 6 with the convening
authority, and did so before the military judge ruled on the Defense motion to
compel specific performance of the original pretrial agreement. In the new plea
agreement, Appellant agreed to plead guilty to various offenses—excluding the
sexual assault of Jennifer but including the additional specifications of disre-
specting a sentinel—and agreed to increase his sentence exposure from the
original maximum of 42 months’ unsuspended confinement to a new range of
5 Id. at 58.
6 “Plea” agreements replaced “pretrial” agreements under the Military Justice Act
of 2016. Where the charged offenses both predate and postdate 1 January 2019, an
accused may elect to opt-in to the new sentencing rules and procedures, as Appellant
did in this case. See Article 53, UCMJ; Rule for Courts-Martial [R.C.M.] 705.
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Opinion of the Court
42 to 120 months. He also “specifically agree[d] to waive all motions except
those that are non-waivable pursuant to R.C.M. 705(c)(1)(B) or otherwise.” 7
At the subsequent Article 39(a) session conducted to receive Appellant’s
guilty pleas, the military judge engaged in a detailed colloquy with Appellant
regarding the terms of the new plea agreement—in particular, his understand-
ing that he was waiving his motion to compel specific performance of the orig-
inal pretrial agreement, on which she had not yet ruled. She asked Appellant
if he understood that under the new plea agreement he was “agreeing to waive
that motion,” and he responded, “Yes, ma’am.” 8 She asked about several other
Defense motions that had been filed, and he confirmed his understanding that
he was waiving them as well under the new agreement. She asked whether the
new plea agreement’s waive-all-waivable-motions provision was something he
had “freely and voluntarily agree[d] to . . . in order to receive what [he] believed
to be a beneficial agreement,” and he responded, “Yes, ma’am.” 9 She then asked
a final time whether he understood that by that provision he was waiving his
motion for specific performance of the original pretrial agreement, and he re-
sponded, “Yes, ma’am.” 10
The military judge found Appellant’s guilty pleas were “made voluntarily
and with full knowledge of [their] meaning and effect,” and accepted them. 11
After receiving sentencing evidence, she sentenced him to reduction to E-1,
confinement for 49 months, and a bad-conduct discharge.
II. DISCUSSION
Appellant asserts the military judge erred by not allowing him to waive his
Article 13 claims and by allowing the convening authority to withdraw from
the original pretrial agreement after Appellant had begun substantial perfor-
mance under it. We find Appellant affirmatively waived these issues.
“Whether an appellant has waived an issue is a legal question that this
Court reviews de novo. Waiver is different from forfeiture. Whereas forfeiture
is the failure to make the timely assertion of a right, waiver is the intentional
7 App. Ex. XIX at 8.
8 R. at 388.
9 R. at 393.
10 R. at 395.
11 R. at 404.
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United States v. Barmeyer, NMCCA No. 202000169
Opinion of the Court
relinquishment or abandonment of a known right.” 12 We generally do not re-
view waived issues because “a valid waiver leaves no error for us to correct on
appeal.” 13
Appellant freely and voluntarily entered into the second plea agreement,
knowing that the military judge had yet to rule on the Defense motion for spe-
cific performance of the earlier agreement. He did so with full knowledge that
the new agreement contained a waiver-of-motions provision that would result
in a waiver of his motion for specific performance. 14 He confirmed to the mili-
tary judge multiple times that he understood this provision and had agreed to
it in order to receive the benefits of the new agreement. He then pleaded guilty
unconditionally in accordance with the terms of the new agreement. Our supe-
rior court has found affirmative waiver under similar circumstances. 15 We do
so here.
We recognize that our duty under Article 66, UCMJ, to approve only find-
ings and sentences that “should be approved” gives us the power to decide
“whether to leave an accused’s waiver intact, or to correct error.” 16 In this case
we leave the waiver intact because even if we were to review the merits of
Appellant’s claims, we would find no error.
A military judge’s decision to accept (or reject) a guilty plea is reviewed for
abuse of discretion. 17 Article 45, UCMJ, requires that if an accused appears to
have entered a plea of guilty through “a lack of understanding of its meaning
12 United States v. Davis, 79 M.J. 329, 331 (C.A.A.F. 2020) (citations and internal
quotation marks omitted).
13 Id. (quoting United States v. Campos, 67 M.J. 330, 332 (C.A.A.F. 2009)).
14 Appellant does not assert, nor do we find, that he could not as a matter of law
waive his desire for specific performance of the initial pretrial agreement. While cer-
tain legal rights and issues cannot be waived under a plea agreement, the right to
specific performance of an earlier pretrial agreement is not one of them. See R.C.M.
705(c)(1)(B); R.C.M. 905–907; United States v. Gladue, 67 M.J. 311, 314 (C.A.A.F.
2009) (stating that absent an explicit prohibition, a party may knowingly and volun-
tarily waive essentially any nonconstitutional right under a pretrial agreement).
15 See Gladue, 67 M.J. at 314 (finding pretrial agreement’s express waiver of any
waivable motions waived subsequent appellate claims of multiplicity and unreasona-
ble multiplication of charges).
16 United States v. Chin, 75 M.J. 220, 223 (C.A.A.F. 2016).
17 United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
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United States v. Barmeyer, NMCCA No. 202000169
Opinion of the Court
and effect, the court shall proceed as though he had pleaded not guilty.” 18 And
as our sister court has stated, “the gravity of pleading guilty is such that the
Supreme Court mandated the Constitutional requirement that any guilty plea
must be entered into voluntarily, knowingly, and with an understanding of the
surrounding circumstances and likely consequences.” 19 As such, before a mili-
tary judge may accept a pretrial (or plea) agreement, “the accused must know
and understand not only the agreement’s impact on the charges and specifica-
tions which bear on the plea . . . but also other terms of the agreement, includ-
ing the consequences of future misconduct or waiver of various rights.” 20 With
respect to Article 13 waivers, the military judge must inquire into “the circum-
stances of the pretrial confinement and the voluntariness of the waiver, and
ensure that the accused understands the remedy to which he would be entitled”
should his motion be successful. 21
Based on these principles, we find no abuse of discretion in the military
judge’s declining to accept Appellant’s waiver of his Article 13 rights at the
initial guilty plea hearing. Faced with an apparent difference of understanding
between the parties as to whether Appellant could file an Article 13 motion
and the possibility of an impermissible sub rosa agreement, 22 the military
judge properly determined there was reason to doubt whether Appellant’s
waiver decision was knowing and voluntary. She appropriately refused to al-
low Appellant to plead guilty until she could gain further clarity on the issue
through briefing by the parties. She then ascertained at the following Article
39(a) session that Appellant did indeed wish to pursue his Article 13 claims,
as opposed to waiving them, which ultimately afforded a benefit to Appellant
in the form of 30 days’ confinement credit.
1810 U.S.C. § 845; see also United States v. Outhier, 45 M.J. 326, 328–29 (C.A.A.F.
1996) (suggesting inconsistencies in a plea must be resolved by the military judge, or
the pleas must be deemed improvident).
19 United States v. Grisham, 66 M.J. 501, 504 (A. Ct. Crim. App. 2008) (citing San-
tobello v. New York, 404 U.S. 257, 262–63 (1971)).
20 United States v. Hunter, 65 M.J. 399, 403 (C.A.A.F. 2008).
21United States v. McFayden, 51 M.J. 289, 291 (C.A.A.F. 1999); see also United
States v. Felder, 59 M.J. 444, 445–46 (C.A.A.F. 2004).
22See R.C.M. 705(e)(2) (stating with respect to pretrial agreements that “all terms,
conditions, and promises between the parties shall be written”); United States v.
McLeod, No. NMCM 97 01345, 1999 CCA LEXIS 18, *11 (N-M. Ct. Crim. App. Jan. 26,
1999) (explaining the rationale for the prohibition of sub rosa agreements).
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Opinion of the Court
Nor did the military judge allow the convening authority to withdraw from
the initial pretrial agreement, as Appellant claims. Rather, Appellant retained
the right to litigate to its conclusion his motion for specific performance of the
earlier agreement. Instead, having committed additional misconduct (in poten-
tial breach of that agreement), Appellant freely and voluntarily chose to forgo
that right and enter into a new plea agreement that effectively withdrew his
motion for specific performance.
III. CONCLUSION
After careful consideration of the record and briefs of appellate counsel, we
have determined that the findings and sentence are correct in law and fact and
that no error materially prejudicial to Appellant’s substantial rights oc-
curred. 23
The findings and sentence are AFFIRMED.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
23 Articles 59 & 66, UCMJ.
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