United States v. Hansen , 59 M.J. 410 ( 2004 )

UNITED STATES, Appellee
v.
Jamie L. HANSEN, Private First Class
United States Marine Corps, Appellant
No. 03-0363
Crim. App. No. 200100086
United States Court of Appeals for the Armed Forces
Argued December 9, 2003
Decided April 28, 2004
BAKER, J., delivered the opinion of the Court, in
which GIERKE, EFFRON and ERDMANN, JJ., joined. CRAWFORD,
C.J., filed a dissenting opinion.
Counsel
For Appellant: Captain E. V. Tipon, USMC (argued).
For Appellee: Captain Wilbur Lee, USMC (argued); Commander
Robert P. Taishoff, JAGC, USN (on brief); Colonel R. M.
Favors, USMC, and Major Patricio A. Tafoya, USMC.
Military Judge: R. H. Kohlmann
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Hansen, No. 03-0363/MC
Judge BAKER delivered the opinion of the Court.
On March 14, 2000, at Cherry Point, North Carolina,
Appellant was tried by a general court-martial composed of
a military judge alone. Consistent with his pleas,
Appellant was convicted of carnal knowledge and sodomy with
a child under the age of 16 years in violation of Articles
120 and 125, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 920 and 925 (2000), respectively. He
was sentenced to a bad-conduct discharge, confinement for
sixteen months, and reduction to the lowest enlisted grade.
In accordance with a pretrial agreement, the convening
authority approved the sentence but suspended all
confinement in excess of fifteen months for a period of six
months from the date of the action, and, with the exception
of the bad-conduct discharge, ordered the sentence
executed. The Navy-Marine Corps Court of Criminal Appeals
affirmed the findings of guilty and the sentence. United
States v. Hansen, 57 M.J. 815 (N-M. Ct. Crim. App. 2002).
This Court granted review of the following issue:
WHETHER APPELLANT’S PLEAS WERE
IMPROVIDENT AND INVOLUNTARY WHERE THE
MILITARY JUDGE FAILED TO PROPERLY
INSTRUCT APPELLANT ON THE EFFECT OF A
PLEA OF GUILTY TO HIS SUBSTANTIAL
RIGHTS, SPECIFICALLY THOSE GUARANTEED
BY THE U.S. CONSTITUTION, AS REQUIRED
BY UNITED STATES V. CARE, 18 C.M.A.
535, 40 C.M.R. 247 (1969).
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For the reasons set forth below, we conclude that the
military judge did not adequately advise Appellant of his
constitutional right to confrontation and right against
self-incrimination or obtain from Appellant an intelligent
and voluntary waiver of those rights. As a result, we
reverse.
Discussion
An accused entering a guilty plea waives several of
his constitutional rights. United States v. Care, 18
C.M.A. 535, 538-39, 40 C.M.R. 247, 250-51 (1969)(quoting
United States v. McCarthy, 394 U.S. 459, 466 (1969)).
These constitutional rights include the right to trial by
jury, the right to confront one’s accusers, and the
privilege against compulsory self-incrimination. See
Boykin v. Alabama, 395 U.S. 238, 243 (1969); McCarthy, 394
U.S. at 466. They derive from express constitutional text
and for many, if not most Americans, these rights are
central to the American perception of criminal justice.
These rights are also fundamental to the military
justice system, although they apply in the context of the
UCMJ somewhat differently than in civilian courts. See
United States v. Wiesen, 57 M.J. 48, 50 (C.A.A.F. 2002);
United States v. Benedict, 55 M.J. 451, 456 (C.A.A.F.
2001)(Effron, J., dissenting); United States v. Roland, 50
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United States v. Hansen, No. 03-0363/MC
M.J. 66, 68 (C.A.A.F. 1999)(explaining that although a
military defendant does not enjoy a Sixth Amendment right
to a trial by jury, he or she does have a right to members
who are fair and impartial). As a result, if there is to
be a waiver of these rights, it “must be an intentional
relinquishment or abandonment of a known right or
privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938).
“The record must also demonstrate the military trial judge
or president personally addressed the accused, advised him
that his plea waives his right against self-incrimination,
his right to a trial of the facts by a court-martial, and
his right to be confronted by the witnesses against him;
and that he waives such rights by his plea.” Care, 18
C.M.A. at 541, 40 C.M.R. at 253 (citing Boykin, 395 U.S. at
239). Based upon those inquiries and whatever additional
discussion the military judge may deem necessary, the judge
must make a finding that there is a knowing, intelligent,
and conscious waiver in order to accept the plea. Id. at
541-42, 40 C.M.R. at 253-54. That waiver is not to be
presumed from a silent or inadequate record. United States
v. Harris, 26 M.J. 729, 733 (A.C.M.R. 1988)(characterizing
Boykin as prohibiting presumption of waiver from a silent
or inadequate record.)
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Appellant argues that his plea is improvident because
the record fails to demonstrate that he was informed of his
constitutional right to a trial of the facts by court-
martial, his right to be confronted by and to cross-examine
any witnesses, and his right against self-incrimination.
See U.S. Const. amend. V, VI. As importantly, Appellant
argues the record fails to demonstrate that Appellant
knowingly and intelligently waived these rights.
The government acknowledges that the military judge
was not express in his review of Appellant’s constitutional
rights and waiver. However, a particular incantation is
not required. See United States v. Burton, 21 C.M.A. 112,
115, 44 C.M.R. 166, 169 (1971)(overruled by United States
v. Kossman, 38 M.J. 258 (C.M.A. 1993)). What is important,
in our view, is that the accused is aware of the substance
of his rights and voluntarily waives them. Here, the
government argues, the judge addressed the substance of
each of the rights in the course of his Care inquiry and on
the basis of the entire record properly concluded, “that
you have knowingly, intelligently, and consciously waived
your rights against self[-]incrimination, to a trial of the
facts by this court-martial, and to confront the witnesses
against you.” The defense did not challenge the judge’s
statement.
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The government posits that this case is at the
crossroads between those judicial circuits that apply a
rule of essential substance to determine whether an accused
has waived his constitutional rights, and those circuits,
primarily the Second Circuit, that apply a strict rule of
form, requiring adherence to specific terminology.1 We
disagree with this paradigm.
First, although this Court recognizes that the
military judge should advise the accused of the rights he
is waiving by pleading guilty, we have previously declined
to adopt a “per se rule that a failure to fully advise an
accused mandates reversal.” Harris, 26 M.J. at 732.
Instead, the issue is not whether there is ‘exemplary
compliance with what we had in mind in Care’ but rather
whether ‘the combination of all the circumstances’ leads
the court to conclude that the accused’s plea was informed
and voluntary.” Harris, 26 M.J. at 732 (quoting Burton, 21
1
Compare United States v. Journet, 544 F.2d 633, 634 (2d
Cir. 1976) with United States v. Pricepaul, 540 F.2d 417,
425 (9th Cir. 1976) and United States v. Stead, 746 F.2d
355, 357 (6th Cir. 1984).
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United States v. Hansen, No. 03-0363/MC
C.M.A. at 115, 44 C.M.R. at 169).2 Thus, in Burton,
the Court relied on the military judge’s explanation to the
accused concerning the consequences of electing to be tried
by military judge alone instead of by a jury as reassurance
“that the appellant knew of his right to have a jury decide
his guilt.” 21 C.M.A. at 115, 44 C.M.R. at 169. Although
the judge in Burton “did not use the words ‘self-
incrimination’ and . . . ‘confront the witnesses[,]’” the
judge did inform the accused that if he invoked his right
to plead not guilty the government would have the burden of
proving his guilt beyond a reasonable doubt by presenting
evidence “that the appellant had the right to confront.”
Id. As a result, the Court in Burton determined that the
appellant understood his right to confront the witnesses
against him. Id. “Similarly, implicit in the judge’s
explanation about the appellant’s right to plead not guilty
and the Government’s burden if he did so is the thought
that the appellant was not required to provide any of the
proof of his guilt.” Id.
2
Although Burton was overruled in regard to its analysis of
speedy trial, it remains valid precedent as to the standard
pertinent to the issue here. See United States v. Kossman,
38 M.J. 258 (C.M.A. 1993); United States v. McCallister, 27
M.J. 138 (C.M.A. 1988). Thus, we consider Burton the “low
water mark” as far as what the record must include to
demonstrate that the accused was properly advised of his
rights.
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Second, the question in this case is not whether the
military judge used the correct constitutional formula, but
whether the judge’s inquiry crossed the threshold of
necessary substantive inquiry such that we can reasonably
conclude that Appellant understood his rights and knowingly
and intelligently waived those rights.
According to the government, the record shows the
military judge alluded to Appellant’s constitutional rights
on six separate occasions. With respect to Appellant’s
right to a trial of the facts by court-martial, the
military judge informed Appellant “you have the right to be
tried by a court-martial composed of members . . . You are
also advised that you may request to be tried by military
judge alone. If that request is approved, the military
judge would determine your guilt or innocence . . . .”
With respect to Appellant’s right against self-
incrimination, the judge advised Appellant “Based on your
pleas of guilty alone and without receiving any evidence,
this court can find you guilty of the offenses to which you
are pleading guilty.” The judge also instructed Appellant
that “By elements, I mean the facts that the government
would have to prove beyond a reasonable doubt before you
could be found guilty if you pleaded not guilty.” With
respect to Appellant’s right to confront and cross-examine
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witnesses, the government invites our attention to that
portion of the record where the parties were litigating
whether a certain defense witness should be allowed to
testify on sentencing. Defense counsel argued that “the
military accused has the right to have the testimony of a
witness on sentencing as well as on the merits when the
testimony is material to an issue before the court.” The
military judge stated, “If after presentation of the
government’s evidence, the defense feels that the door has
been opened by the government to such rebuttal, the defense
should renew its motion at [that] time.”
Finally, as noted above, at the close of his Care
inquiry the judge advised Appellant on the record that he
had “knowingly, intelligently, and consciously waived [his]
rights against self[-]incrimination, to a trial of the
facts by this court-martial, and to confront the witnesses
against [him].” This was done without response or
objection from the defense counsel or the accused.
Based on this record, we believe Appellant was advised
of, understood, and knowingly waived his right to a trial
of the facts. However, we are not prepared to conclude the
same with respect to Appellant’s right against self-
incrimination or his right to be confronted by and cross-
examine witnesses. The “combination of all the
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circumstances” surrounding the judge’s statements regarding
those particular rights falls short of demonstrating that
Appellant’s guilty plea and waiver of the rights was
informed and voluntary within the meaning of McCarthy,
Boykin, and Care. See Burton, 21 C.M.A. at 115, 44 C.M.R.
at 169.3 Without such an explanation and acknowledgment of
the judge’s ultimate conclusion, we cannot be confident
that Appellant intelligently waived these rights
notwithstanding the presence of counsel. After all, the
military judge is required to ensure that the accused
personally understands the rights he is about to waive.
Care, 18 C.M.A. at 541, 40 C.M.R. at 253. We cannot be
certain that this was the case here. First, the record
establishes that Appellant was not conversant with his
constitutional rights. This was evident at the outset of
the Care inquiry when the judge advised Appellant of his
right to be tried by a court-martial composed of members or
by judge alone. When asked whether he understood this
right and had discussed these choices with his counsel,
Appellant responded, “No, sir.” Second, where bedrock
constitutional rights are at issue and are waived, we
3
This is in contrast to the thorough, indeed commendable,
manner in which the military judge reviewed on the record
with Appellant the elements of the offenses with which he
was charged.
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should not settle for inference and presumption when
certainty is so readily obtained.
Pretrial agreements are mortar and brick in the
military justice system. The knowing and intelligent
waiver of constitutional rights is the foundation upon
which they rest. This Court does not require incantation
of constitutional formulas. However, we do require a
record of confidence that an individual accused had his
rights explained to him, understood his rights, and
knowingly and intelligently waived them. Because the
relinquishment of these bedrock constitutional rights is
the essence of the plea bargain, we will not presume or
imply that a military accused understood them and waived
them, absent a demonstrable showing in the record that he
did in fact do so.
Decision
The decision of the United States Navy-Marine Corps
Court of Criminal Appeals is reversed. The findings of
guilty and the sentence are set aside. The record of trial
is returned to the Judge Advocate General of the Navy. A
rehearing may be ordered.
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CRAWFORD, Chief Judge (dissenting):
In contrast to Boykin v. Alabama, 395 U.S. 238 (1969), this
is not the case of a “silent record,” but a record that is
replete with evidence demonstrating adequate advice to the
accused. The record on the whole affirmatively demonstrates the
accused understood the constitutional rights he was waiving and
the critical elements of the crime for which he had entered the
pleas of guilty. Trial courts are not required to follow a
formulistic litany but, in essence, must make sure there is a
voluntary plea that is understood by the accused. Clearly, that
is true in this case. The majority of courts have considered
this issue and refused to vacate a plea simply because the
record does not affirmatively show a specific waiver of these
three constitutional rights. James E. Bond, Plea Bargaining and
Guilty Pleas § 3.8(b) at 3-27 (2d ed. 1982); see also Pitts v.
United States, 763 F.2d 197 (6th Cir. 1985); State v. Lee, 558
N.W.2d 571 (Neb. 1997); State v. Branch, 919 P.2d 1228, 1233
(Wash. 1996)(citing Wood v. Morris, 554 P.2d 1032, 1336-37
(Wash. 1976)). The colloquy by the trial judge is not a model
to be followed, but it is clear that from the thrust of
Appellant‘s conversation with the judge that he entered an
“informed and voluntary” plea. United States v. Burton, 21
C.M.A. 112, 44 C.M.R. 166, 169 (1971).
United States v. Hansen, No. 03-0363/MC
This Court considers the entire record when determining the
providence of a guilty plea. United States v. Redlinski, 58
M.J. 117, 119 (C.A.A.F. 2003). Even before the military judge
allowed Appellant to enter a plea, he made Appellant aware of
his rights to discovery, to request witnesses on his behalf, to
file and litigate motions, and to present evidence on those
motions. The military judge and Appellant’s defense counsel
engaged in a protracted discussion on whether the defense would
be allowed to present evidence to rebut an implication that his
accuser had been a virgin, which discussion also included an
issue of “sentence appropriateness” regarding the trials of the
other two Marines charged with similar offenses. Appellant was
aware of the military judge’s preference to have motions
completed prior to pleas “because you never know what’s going to
arise.” The judge assured Appellant had been advised by his
counsel and then advised that the guilty plea is the “strongest
form” proof known to the law and that “the court can find you
guilty of the offenses to which you are pleading guilty” without
the introduction of any witnesses. See United States v. Care,
18 C.M.A. 535, 40 C.M.R. 247, 253 (1969). Appellant knew that
the plea would admit every element of the offense, and that if
he chose to plead not guilty, the government would have to prove
each and every element of each offense beyond a reasonable doubt
before Appellant could be found guilty. Appellant was advised
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he could be found guilty based on his “pleas of guilty alone.”
He admitted he had enough time to talk to his counsel and
believed his advice was in his own best interest. He
specifically said he was pleading guilty “voluntarily” and that
no one had “forced or threatened him to plead guilty.” He
indicated he agreed to enter into a stipulation of fact after
discussing it completely with his attorney and that it was true,
and if entered into evidence could not be contradicted. This
advice to the accused lasted approximately 30 minutes and
extended over nearly 30 pages of a verbatim record of trial.
The judge discussed with Appellant the defense of mistake of
fact concerning the age of the victims but agreed that it did
not apply.
In the memorandum of pretrial agreement, Appellant admitted
that his plea was “voluntary,” and that he was satisfied with
his defense counsel. He also admitted his attorney “fully
advised [him] of the meaning and effect of [his] guilty pleas.
[He] fully underst[oo]d their meaning and all the related
effects and consequences.” Id. He waived his right to an
investigation pursuant to Article 32, Uniform Code of Military
Justice, 10 U.S.C. § 832 (2000), and his “right to have [his]
case tried by members.” The judge advised Appellant that he
could request to withdraw his plea any time before sentence was
announced. Appellant also said he understood “each and every
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United States v. Hansen, No. 03-0363/MC
provision” of his pretrial agreement, including a provision that
Appellant “testify truthfully at other trials concerning the
offenses to which [he was] pleading guilty” and was satisfied
with the advice of his counsel. He had no questions concerning
the “meaning and effect” of his guilty plea. The judge then
indicated that he found that Appellant “knowingly,
intelligently, and consciously waived his rights against self-
incrimination to a trial of the facts by court-martial, and to
confront the witnesses against him.” There was no objection by
either side to that statement.
As the majority correctly notes, the rights to silence, to
confront one’s accuser, and to a trial by jury “are central to
the American perception of criminal justice” and “fundamental to
the military justice system.” So central and fundamental, in
fact, that it is a leap of logic to conclude that these rights
were unknown to this 22-year-old Marine who was represented by
competent counsel, who had negotiated and entered into both a
pretrial agreement and a detailed stipulation of fact, and who
had discussed his crimes, his agreement to testify in other
cases, and many of his trial rights on the record before a
military judge.
There was substantial compliance with Care, and Rule for
Courts-Martial 910. We should follow our superior court and
hold that even where there is a failure to make a full inquiry,
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the failure of the defendant to object constitutes waiver absent
plain error. United States v. Vonn, 535 U.S. 55 (2002); cf.
United States v. Benitez, 310 F.3d 1221 (9th Cir. 2002), cert.
granted __ U.S. __, 124 S. Ct. 921 (2003)(rejecting argument
that defendant’s failure to object to lack of advising the
defendant that the judge was not bound by the agreement
constitutes waiver absent plain error).∗
On these facts, I can find no material prejudice to any
substantial right of Appellant. His plea was informed and
voluntary. This Court should no longer invite appellants and
counsel to negotiate a bargain, plead guilty, gain the benefit
of the bargain, and then have the conviction set aside with no
demonstration of prejudice and every indication of waiver.
∗
The failure to invoke waiver absent plain error invites
defense counsels to “plant error.” Victor Kelley, 3 National
Military Justice Group 6 (Winter 2004) (“I know of no fiduciary
loyalty that the defense owes to the military judge. It may
well be that the judge incorrectly advises the accused or omits
an element of the offense. Should this occur, and should the
prosecutor miss it, the defense has an instant appellate
issue.”).
5