The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.

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REAR ADMIRAL WILFRED A. HEARN, USN Judge Advocate General of the Navy

REAR ADMIRAL ROBERT H. HARE, USN Deputy and Assistant

Judge Advocate General of the Navy

MAJOR WILLIAM H. J. TIERNAN, USMC Editor

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RETIRED PAY AND SEVERANCE PAY-Service in a higher grade, "temporary" or "permanent," than that held when retired; rule of Friestedt case.

Various statutes relating to retirement and retired pay provide, in effect, that if the service member concerned has served satisfactorily in a "temporary" grade or rank higher than the grade or rank in which he is serving at time of retirement, he is entitled to be advanced to such higher "temporary" grade or rank. (See 10 U.S.C. 1212(a) (B) (ii), 1372(2), 3963(a), 3964, 6151, 8963 (a) and 8964.) At first glance no complication or incongruity would appear in such a provision; it might be assumed that if the member at some time had served in a grade higher than that held at retirement that prior grade, of necessity, must have been "temporary." Not so. "The life of the law has not been logic but experience." Throughout the uniformed services cases have been discovered in which the member being retired had served in a higher "permanent" grade than the grade in which serving at the time of his retirement. These instances involve both Regulars and Reservists; officers and enlisted; disability retirees; those retired for years of service; and those separated for disability with severance pay. Pursuant to the literal interpretation of the various statutes involved and decisions by the Comptroller General of the United States (see 37 Comp. Gen. 538; 42 Comp. Gen. 156) the services heretofore, for many years, have authorized advancement only in cases where the higher grade was "temporary" and have declined to effect advancement where the higher grade was "permanent."

Efforts to secure remedial legislation have so far been unavailing.

A recent holding of the United States Court of Claims in the Friestedt case, as partially acquiesced in by the Comptroller General, has led to a modification of the former rule (Friestedt v. United States, No. 237-62, Ct. Cl., 12 Nov. 1965; Comp. Gen. B-149487, 8 Jul 1966). In the Friestedt case the court held that the plaintiff, who had been retired for physical disability while serving as an enlisted member, was entitled to retired pay benefits as a first lieutenant under the provisions of 10 U.S.C. 1372 (2), relating to “highest temporary grade or rank,” irrespective of the fact that the highest grade in which he had served was the "permanent" grade of first lieutenant and that he had not held or served in the "temporary” grade of first lieutenant. The basis for the holding was that Congress should not be presumed to have intended to produce an absurd result by giving preference to a "temporary" grade over a "permanent" one and consequently must have intended to provide for advancement whether the higher grade was temporary or permanent.

The Comptroller General, on December 1, 1965, B149487, urged the Department of Justice to attempt to secure a reversal of the holding of the Court of Claims in the Friestedt case. The Assistant Attorney General, on April 22, 1966, replied that the Department of Justice had determined that it would not seek certiorari in the case, although "the decision appears to be erroneous.” Accordingly, judgment was entered in the case and became final.

(Continued on page 20)

W

INTRODUCTION

HERE THERE EXISTS a controversy, dispute, or separation of interests, the practice of negotiation often produces fruitful results to the conflicting interests of both parties. Such a practice has long been prevalent in the administration of criminal justice whereby an accused agrees to plead guilty to certain criminal charges in exchange for some specified leniency. In civilian jurisdictions, a negotiated plea normally takes the form of an informal agreement between the prosecutor and the defendant that in exchange for a plea of guilty, the prosecutor will either scale down or drop specified charges or recommend a certain sentence to the judge.1 Negotiating for pleas has had a varied employment in military trials. In 1953, a letter from the Acting Judge Advocate General of the Army was dispatched to staff judge advocates of major commands suggesting that in keeping with civilian practice, the convening authority, if he so desired, might accept the offer Lieutenant Edward A. Infante, USNR, is currently assigned as Appellate Government Counsel at the Naval Appellate Review Activity in the Office of the Judge Advocate General. He holds the AB degree from Boston College and the LLB degree from the Boston University School of Law. Lieutenant Infante has been admitted to practice before the Courts of the State of Rhode Island; the United States Court of Appeals for the 1st Circuit, where he served as a law clerk to The Hon. Edward M. McEntee; and the United States Court of Military Appeals.

1. See Newman, Pleading Guilty for Considerations: A Study of Bargain Justice, 46 J. Crim. L. 780 (1956).

of an accused to plead guilty for a consideration where the results of the agreement would be advantageous to both the accused and the government.2 Implementation of the suggestion was left to the discretion of general court-martial convening authorities.

The practice of negotiating pleas received formal recognition in naval courts-martial some ten years ago through a pair of directives promulgated by the Secretary of the Navy. These provisions, which set up fairly elaborate procedures for the use of pretrial agreements, are now incorporated into the Manual of the Judge Advocate General of the Navy in sections 0109A, 0153, and 0154. Under the established procedure, the offer to plead guilty must originate from the accused and his counsel in writing. It is then forwarded to the convening authority via the trial counsel (and the staff legal officer in the case of a general court-martial). The agreement should be modeled on the form provided in sections 0153 and 0154 of the JAG Manual and must be personally signed by the convening authority, the accused, and the accused's counsel as witness 2. See Hickman, Pleading Guilty for a Consideration in the Army, JAG Journal (December 1957-January 1958), p. 11.

3. SECNAVINST 5811.1 of 11 September 1957 declared it to be "legal and proper for the convening authority to make a pretrial agreement as to charges and specifications upon which the accused will be tried and/or the maximum sentence which will be finally approved by the convening authority if the accused pleads guilty." SECNAVINST 5811.2 of 17 December 1957 extended the practice to special courts-martial. See Melhorn, Negotiated Pleas in Naval Courts-Martial, 16 JAG Journal 103 (September 1962).

on his behalf. But the acceptance of the agreement does not irrevocably bind the accused to plead guilty according to its terms. Generally he may change his plea to not guilty at any time before the sentence is adjudged by the courtmartial. Of course, such an act would cancel the agreement and relieve the convening authority of his obligations.

The advantages of pretrial agreements to both the accused and the government require little elaboration. The accused ordinarily benefits by making certain that his ultimate sentence will be substantially less than the authorized maximum sentence which could be imposed by the courtmartial. Yet, this opportunity to fix a ceiling on his sentence does not preclude him from presenting extenuating and mitigating evidence at the trial in an attempt to persuade the court-martial to award even a lesser sentence. Should the court adjudge a lesser sentence, the convening authority is bound to approve no more than the sentence adjudged."

From the government's point of view, the negotiated plea provides opportunities for advanced planning, savings in money and manpower, and a more expeditious administration of justice. In addition, by avoiding a trial on the findings, the prosecution is not faced with the uncertainties of litigation. It would seem that such a conviction would be less vulnerable to an attack on appeal since the taking of testimony and giving of instructions on the findings (two fertile sources of prejudicial error) are avoided. However, convictions based on negotiated pleas have not proved to be as invincible as one might expect. Rather the case reports of the past decade have revealed many difficulties arising out of the pretrial agreement itself and its effect on the deportment of the trial which can be the source of reversible error. The purpose of this treatise is to outline some of the pitfalls to guard against when engaging in the practice of negotiating for guilty pleas.

THE EFFECT OF NEGOTIATED PLEAS ON THE CONDUCT OF THE TRIAL

Where an accused and his counsel have negotiated for a specified sentence before trial, a

4. JAG Manual, secs. 0109Ab(1) (a), (2) (a). 5. Cf. UCMJ, Art. 45; MCM, par. 70a.

6. See United States v. Watkins, 11 USCMA 611, 615, 29 CMR 427, 431 (1960).

7. The pretrial agreement forms contained in the JAG Manual include a clause which provides: "That, should the court award a sentence which is less, or a part thereof is less, than set forth and approved in the agreement, then the convening authority, according to law, will only approve the lesser sentence." Secs. 0153, 0154.

8. JAG Manual, sec. 0109As.

defense counsel's willingness and zeal to vigorously present matters in extenuation and mitigation at the trial may be somewhat lessened. Very early under the Uniform Code of Military Justice, a number of cases were reviewed on appeal in which the defense counsel, relying on a pretrial agreement, failed to present available evidence or argument on behalf of the accused during the presentencing portion of the trial. This procedure of failing to present a case in mitigation when a pretrial agreement is involved has been repeatedly condemned by the Court of Military Appeals."

We have expressly condemned a tendency on the part of defense counsel to present no evidence, and to make no argument, in mitigation when there is an agreement with the convening authority on the plea and the sentence.10

In United States v. Allen," the accused agreed to plead guilty to desertion in consideration of a specified sentence. At the trial, his defense counsel offered no mitigating evidence or argument on the sentence. On appeal, the accused asserted by affidavit that there existed available evidence concerning significant matters in mitigation of punishment. In remanding the case to the Board of Review for further inquiry into the accused's factual claim, Chief Judge Quinn stated that if an accused enters into a pretrial agreement with the convening authority for a specified sentence in exchange for a guilty plea, "the agreement cannot transform the trial into an empty ritual." 12 This principle is based on the proposition that it is the trial court which is charged with the primary responsibility of determining the quantum of punishment for adjudged criminal conduct. "It alone, of all agencies of the law, is authorized to 'adjudge' the law's penalty." 13 The case of United States v. Welker 14 is another instance where the defense counsel, operating under the cloak of a pretrial agreement, failed to present any matter during the presentencing hearing. There, the accused pleaded guilty to a three-day unauthorized absence, failure to obey an order to report to his commanding officer, and the larceny of government property. After deliberating for less than five minutes in closed session, the court sentenced the accused to the maximum sentence

9. United States v. Allen, 8 USCMA 504, 25 CMR 8 (1957); United States v. Elkins, 8 USCMA 611, 25 CMR 115 (1957); United States v. Armell, 8 USCMA 513, 25 CMR 17 (1957); United States v. Welker, 8 USCMA 647, 25 CMR 151 (1957).

10. United States v. Rose, 12 USCMA 400, 401, 30 CMR 400, 401 (1961).

11. United States v. Allen, supra note 9.

12. Id. at 507, 25 CMR at 10.

13. United States v. Brasher, 2 USCMA 50, 52, 6 CMR 50, 52 (1952). 14. United States v. Welker, supra note 9.

consisting of a dishonorable discharge, total forfeitures, and confinement at hard labor for ten years and seven months. In setting aside the sentence, the Court of Military Appeals noted that the circumstances suggested that the court members surmised from the accused's plea of guilty and from counsel's failure to present a case in mitigation that the accused had an agreement with the convening authority and that in these situations, courts-martial see "no real purpose in their devoting time and effort to consideration of an appropriate punishment.” 15 The Court went on to admonish that: "A continuation of these trends may require re-examination of the practice of negotiating agreement on the plea and the sentence with the convening authority." 16

In this connection, it should also be pointed out that the existence of a pretrial agreement does not preclude the trial counsel from introducing, during the presentencing procedure, matters in aggravation such as records of previous convictions, and rebuttal evidence. Just as the defense counsel has an obligation to protect the interests of his client in this regard, the trial counsel is likewise obligated to protect the interests of the government during the sentencing proceedings.

Closely related to the effect of a pretrial agreement on counsel's performance at the trial is the question of providency of the accused's plea. The critics of negotiated pleas object that the opportunity to bargain for a lenient sentence may serve as an illegitimate inducement for an uninformed accused, uncertain of his rights, to plead guilty. There are two rejoinders to this contention. Initially, an accused should, wherever feasible, be given the opportunity to consult certified lawyer counsel in pretrial negotiations. Such a practice would "insulate him from external pressures and hasty and ill-conceived action." 17 The Navy has recognized this need in cases where the agreement contemplates a punitive discharge.18 Secondly, trial counsel should

15. Id. at 649, 25 CMR at 153.

16. Ibid.

17. United States v. Watkins, 11 USCMA 611, 615, 29 CMR 427, 431 (1960).

18. JAG Manual, sec. 0109Ab (2) (a), requires that a certified lawyer counsel be made available to the accused (unless specifically waived by the accused) in those cases wherein the pretrial agreement contemplates a punitive discharge. However, it appears that the recent decision of United States v. Tempia, 16 USCMA 629, 37 CMR 249 (1967) in which the Court of Military Appeals adopted the Miranda rule (Miranda v. Arizona, 384 US 436, 16 L Ed 2d 694, 86 S Ct 1602) may require a broader expression of the accused's right to lawyer counsel at pretrial agreements. If the pretrial negotiations develop into, or take the form of, an "in-custody interrogation," the accused should be advised that he has the right to the presence of a lawyer counsel, either retained or appointed.

insure that the law officer or president of the court-martial fully inquires into the providency of the accused's plea in accordance with the provisions of the Manual for Courts-Martial,19 specifically advising him of the elements of the crimes charged and establishing that the accused is pleading guilty because he is in fact guilty. If this procedure is followed, appellate courts will generally ignore any post-trial cries of innocence.20

While the providency of the accused's plea should be fully scrutinized at trial, great care should be taken not to divulge to the courtmartial that the accused has negotiated a pretrial agreement as to his sentence with the convening authority.21 As we have already seen, the actual penalty imposed on a defendant must be determined by the court-martial,22 and the bargain on the sentence is regarded only as fixing a maximum limit to be ultimately approved by the convening authority.23 Thus, the court-martial must be left to arrive at an appropriate punishment independently, and any information regarding the existence of a pretrial agreement would be irrelevant. The issue has not been presented to the Court of Military Appeals or the Navy Boards of Review. However, an Army Board of Review was confronted with the problem in United States v. Withey." In that case, when the court was about to close to vote on the sentence, the president asked the law officer whether the accused had been advised of the maximum sentence which could be imposed. The law officer replied in the affirmative; however, he added that the accused had pleaded guilty as the result of a prior arrangement with the convening authority as to the maximum sentence that would be ultimately approved. The Board of Review ordered a rehearing on the sentence, holding that such a disclosure to the court prejudiced the accused.25 The Judge Advocate General of the Navy recognized the potential danger

19. MCM, par. 70(b).

20. See United States v. Chancelor, 16 USCMA 297, 300, 36 CMR 453, 456 (1966); and United States v. Chandler, 26 CMR 619 (1958).

21. It would appear that the problem of "letting the cat out of the bag" would be less likely to occur at a general court-martial in which the procedure is to inquire into the providency of the accused's plea at an out-of-court hearing by the law officer out of the presence of the court members.

22. See supra note 13.

23. United States v. Watkins, supra note 6.

24. CM 398157 Whithey, 25 CMR 593 (1957). Compare United States v. Rinehart, 26 CMR 815 (1958).

25. It is interesting to note that the president, upon being made aware of Whithey's pretrial agreement with the convening authority, exclaimed: "I see absolutely no purpose in having a court-martial if you have a predetermined sentence for the accused." This incident lucidly illustrates how a disclosure at trial of pretrial negotiations can impair the court-martial's ability in deliberating and arriving at an appropriate punishment.

of such a disclosure by including the following provision in the JAG Manual:

Under no circumstances will the court be in any way informed of any negotiations between counsel and the convening authority on the subject of a pretrial agreement; of any such agreement existing at the time of trial; or of any such agreement made and later rejected by the accused to permit a plea of not guilty.26

DEFECTS IN THE AGREEMENT ITSELF: AMBIGUITIES RESOLVED IN FAVOR OF THE ACCUSED

We have all had occasion to read clauses in written documents which have perplexed us with a double meaning. Ambiguities will always come back to haunt the parties to an agreement when suddenly it is discovered that each party to the bargain understands the provisions differently. In the law of contracts, the general rule is that these contrasting interpretations are construed against him who drafted the instrument.27 However, in the realm of pretrial agreements, it is well settled that ambiguities are resolved in favor of the accused.28 Keeping this rule of construction in mind, let us review a few of the most notable ambiguities which have cropped up in the last decade of case law.

In United States v. Stovall,29 the accused pleaded guilty pursuant to a pretrial agreement in which it was provided that, in return for the plea, any adjudged bad conduct discharge would be suspended by the convening authority for a period of six months. Following the plea and the findings of guilty, the court-martial sentenced the accused to a bad conduct discharge, partial forfeitures, and confinement at hard labor for six months. On review the convening authority approved the sentence and probationally suspended the punitive discharge for the period of confinement and an additional period of six months. The Court of Military Appeals, in holding that this constituted a substantial variation from the pretrial understanding with the accused concerning the period of suspension, ordered the period of suspension reduced to the period of confinement. It may well be that the convening authority intended the period of probational suspension to run concurrently with the period of confinement. On the other hand, he may have intended that the probational period of six months be in addition to the period of confinement. If the latter was his desire, he should have explicitly said so in the agreement.

26. JAG Manual, secs. 0109Ab(1)(c), (2) (d). 27. See, e.g., 17 C.J.S. Contracts § 324 (1963).

28. United States v. Hamill, 8 USCMA 464, 24 CMR 274 (1957); United States v. Stovall, 16 USCMA 291, 36 CMR 447 (1966). 29. United States v. Stovall, supra note 28.

30

31

Another instance where the convening authority's intentions may be frustrated is where the provisions of agreement are silent as to one or more kinds of punishment. Since the Navy pretrial agreement form contains a clause to the effect that if the court awards a lesser sentence, the convening authority will approve only the adjudged sentence, the question arises as to whether he can approve that portion of the sentence to which there was no agreement. For instance, in United States v. Watts, the pretrial agreement provided that the approved sentence would not exceed a bad conduct discharge and confinement for nine months. There was no provision as to forfeitures. The sentence of the court was a BCD, confinement for six months, and forfeitures of $50.00 per month for six months. Since the adjudged sentence was equivalent to or less than those types of punishments agreed upon, the convening authority approved the adjudged sentence. It was held that the approved sentence was in excess of the agreement and the forfeitures were disapproved. It may well be that this was not the result desired by the convening authority. Thus, wherever no deal is reached as to one type of punishment, such as confinement or forfeitures, the agreement should spell out the intentions of the parties. For example, if it is agreed that the accused should not suffer any confinement, the agreement should specify "no confinement." If, however, the parties do not arrive at an agreement on confinement and intend to rely on the court's determination, the agreement should so specify, e.g., "Confinement or Restraint: as adjudged by the court."

Ambiguities have repeatedly arisen as to the agreed amount of forfeitures. For instance, a recent case was reviewed in which a pretrial agreement contained the following provision:

Forfeiture or Fine-Not more than % of one month's pay for three (3) months.

On appeal, the appellant argued that he understood this provision to mean the forfeiture of only two-thirds of one month's pay to be spread over a three-month period. The government contended that the only logical interpretation was forfeiture of two-thirds of one month's pay per month for three consecutive months. The am

30. JAG Manual, secs. 0153, 0154.

31. CM 401328 Watts, 27 CMR 661 (1958).

32. Compare United States v. Harrington, 27 CMR 696 (1958), in which the Board of Review affirmed the convening authority's approval of the adjudged forfeitures. Although the agreement did not provide for forfeitures as in the Watts case, the letters and papers of counsel showed that all parties intended that there be no limitation as to forfeitures which might be adjudged.