Navy-Marine Corps Court of Criminal Appeals

United States v. Raines, __ M.J. ___ (N-M Ct. Crim. App. 2022). A petition for writ of mandamus.

​Chief Justice Roberts once said, “Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”1 With that in mind, we consider whether a military judge may strike a term in a negotiated plea agreement and then rewrite the agreement to his own liking over the objection of one or both of the parties. The President does not have a line-item veto and neither does a military trial judge. We answer in the negative.

During trial, the military judge expressed concern with the term that "A Bad Conduct Discharge shall be adjudged.” 

The Government and LCpl Raines both wanted to move forward with the guilty plea according to the terms they negotiated in their plea agreement. To that end, the Government filed a Petition for a Writ of Mandamus with this Court. In addition to the charge sheet, plea agreement, and stipulation of fact, the Petition included the Government’s bench brief to the military judge and the relevant transcripts. The Petition also included declarations from LCpl Raines and the Senior Trial Counsel [STC] at Camp Lejeune. Lance Corporal Raines stated that he intended to be bound by the terms of his plea agreement. The STC’s declaration recounted several other cases at Camp Lejeune where the military judges expressed similar views concerning their authority to strike terms in plea agreements.

The court points out that United States v. Alkazahg, 81 M.J. 764 (N-M. Ct. Crim. App. 2021), the court did not grant military judges a line-item veto over PTA terms. Rather it was intended to give military judges a reminder of their gatekeeping role to police PTAs that violate "public policy, appellate case law, or fail to adhere to fundamental notions of fairness." 

In United States v. Green, the Court of Military Appeals explained that “[w]here the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties.” Thus, absent the parties’ consent to such judicial modifications, a military judge may only choose to reject the entire agreement based on the objectionable term or terms included within the agreement. Article 53a(b)(1), UCMJ, states that a military judge “shall reject a plea agreement” that contains a provision that has not been accepted by both parties. It is obvious that neither the Government nor LCpl Raines is willing to accept the new judicially imposed term in this plea agreement concerning whether to award a punitive discharge and what kind of discharge it might be. This takes us to R.C.M. 705(c)(1)(A) and (B). A military judge must reject a “term or condition in a plea agreement” if “the accused did not freely and voluntarily agree to it.” A military judge must also reject a “term or condition” in a plea agreement plea that deprives an accused of, among other things, his “right to due process.” Lance Corporal Raines did not freely and voluntarily agree to the judicially amended provision in the plea agreement. 

United States v. Rivero, __ M.J. ___ (N-M Ct. Crim. App. 2022).

Appellant pled guilty to a specification of sexual assault of a child, for which he was sentenced to 12 years. As part of the PTA a charge with 14 specifications of sexual assault of a child and ten specifications of sexual abuse of the same child were dismissed. The PTA provided for a sentence "range" of eight to 15 years. An additional term was that the CA would recommend confinement at Miramar, because of its sex offender treatment programs. However, the Appellant is at the Marine Corps Brig Camp Pendleton. The Appellant has three complaints.

1. Was the sentence limitation portion of the PTA in violation of R.C.M. 705(d)?
2. Did the "Specific Sentence Violate Public Policy?
3. Were DC ineffective in their "advice" "Regarding the Location of [Appellant's] Location of His Confinement?

R.C.M. 705: "Appellant argues that a plain reading of R.C.M. 705(d)(1)(A)-(C) necessarily contemplates a range of punishment, not an exact sentence." The court addresses three problems with the argument. (1) The word "range" is not used in the Rule, (2) the language of the Rule allows for "a term requiring a specific sentence," and (3) that the Rule does not require a specific sentence, so the Rule "does not preclude what is, in effect, a specific sentence."

Public Policy: The court does not find the requirement of a specific sentence makes the sentencing proceeding an "empty ritual," in violation of public policy. The court disagrees that the sentence provision deprives the military judge of discretion in sentencing. 

1. The military judge could reject the PTA. (See, Raines.)
2. The military judge can make a suspension recommendation to the CA.
3. The sentencing case will help the CA effect, if at all, the MJ's recommendation.
4. The sentencing evidence can be part of the Appellant's post-trial submission. (See, Raines.)
5. The sentencing case is meat for the appellate court's sentence appropriateness review.
6. There is no "infringing on Appellant's due process rights."

​Citing a historical trend to expand the military judge’s role in determining an appropriate sentence at general or special courts-martial at the cost of the convening authority’s, Appellant claims “a plea agreement that strips key portions of judicial discretion and places them with the [c]onvening [a]uthority is against public policy and cannot stand.”29 We disagree. First, we note that the decision to include a requirement for a specific sentence in a plea agreement is not the convening authority’s alone. An accused has the ultimate say in whether to consent to a plea agreement’s terms. Second, as discussed above, R.C.M. 705(d)(1) and 1002(a)(2) now specifically allow plea agreement terms to cabin the court-martial’s discretion as to sentences--provided both parties agree to them as they did in the case. And third, we see no reason for R.C.M. 705’s limitation provisions to diminish public faith in the military justice system, given the extensive role military judges continue to play in the sentencing-related portions of that system.

IAC: The Appellant (and his brother) believed his DC "guaranteed" he'd go to Miramar. The court finds the record contradicts that belief. There was a time when it was highly likely that a sex offender would go to Miramar or the USDB, depending on the length of confinement. That has changed over the last years and we are seeing sex offenders, who don't qualify for the USDB, go to other facilities. Some, for example, are at the JRCF and others at Charleston. Regardless, the court finds assumes arguendo, IAC but finds no prejudice. The court, I think not unreasonably, suggests the Appellant would not have busted the deal because he was not going to go to the facility he wanted.

United States v. Taylor. Appellant was convicted of conspiracy to distribute LSD, soliciting distribution of 'rooms, using and distribution of LSD, and communicating a threat, for which he was sentenced to 24 months, RiR, and a BCD. The court set aside the communicating a threat.

The issue is an interesting one of inevitable discovery.

The court affirms the military judge's finding that getting the passcode to Appellant's phone was a violation, because the Appellant had "unequivocally" invoked prior to being asked for his passcode.

The court teaches that "In order to qualify for [the inevitable discovery] exception, the government must demonstrate “by a preponderance of the evidence that when the illegality occurred, the government agents possessed, or were actively pursuing, evidence or leads that would have inevitably led to the discovery of the evidence in a lawful manner.” “Mere speculation and conjecture as to the inevitable discovery of the evidence is not sufficient.” Rather, the exception is “only applicable ‘[w]hen the routine procedures of a law enforcement agency would inevitably find the same evidence.’"

Here, the court concluded,

Here, the military judge concluded that NCIS would inevitably have been able to unlock, search, and obtain the evidence from Appellant’s iPhone 6 even without using the unlawfully obtained passcode, by bypassing the phone’s security. Based on testimony and evidence relating to its seizure, the military judge found that the phone was turned on and had an 81% battery charge when it was obtained from Appellant’s locker. Reasoning that most people leave their cellphones powered on when not using them, he found that the phone was in the condition of “after first unlock” when seized, meaning its passcode had been successfully entered at least once without powering off. He found that at the time the phone was seized, NCIS possessed and used a program called “GrayKey,” which was “2 for 2” in bypassing cellphone passcodes within 17 days for cellphones like the iPhone 6 that had not lost power after first unlock. He found this success rate was “attributed to the agents (1) seizing the phone; (2) ensuring the phone is charged; and (3) overnighting the phone to [the NCIS digital forensic examination] team’s facility in Washington D.C. for extraction.” He found that this evidence demonstrated “an NCIS routine, albeit a recent one, of an ability to unlock an iPhone 6.

The court concludes that despite the newness of GrayKey, there was sufficient evidence to establish that it is part of a "routine procedure of a law enforcement agency," so inevitable discovery saves the day.

United States v. Riddell.

​On 28 March 2022, Petitioner, the Accused in the general court-martial, United States v. Sergeant (E-5) Todd P. Riddell, Jr., USMC, filed a Petition for Extraordinary Relief in the Nature of a Writ of Mandamus and Application For a Stay of Proceedings. Petitioner seeks a Writ of Mandamus ordering the trial court to ensure that Petitioner is given time for adequate and meaningful expert consultation and preparation prior to the start of trial. The underlying court-martial was scheduled to convene on 4 April 2022. On 29 March 2022, this Court ordered the below proceedings stayed until further order of this Court.

After the parties filed additional pleadings, the court has decided a writ is not necessary and is denied. Trial may proceed.

Cheers, Phil Cave