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case, although “the decision appears to be erroneous." The JAG JOURNAL is published by the Office of the compensation can be paid for articles accepted and Judge Advocate General of the Navy as an informal published. forum for legal matters of current interest to the naval

Issuance of this periodical approved in accordance service. The objective of the JAG JOURNAL is to

with Department of the Navy Publications and Printing acquaint naval personnel with matters related to the

Regulations, NAVEXOS P-35. law and to bring to notice recent developments in this field.

REAR ADMIRAL WILFRED A. HEARN, USN The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views

Judge Advocate General of the Navy expressed in the various articles must be considered as the views of the individual authors, not necessarily bear

REAR ADMIRAL ROBERT H. HARE, USN ing the endorsement or approval of the Department of

Deputy and Assistant the Navy, or the Judge Advocate General, or any other

Judge Advocate General of the Navy
Agency or Department of Government.
Invitations to submit articles are extended to all per-

MAJOR WILLIAM H. J. TIERNAN, USMC sons, whether lawyers or laymen. Articles submitted

Editor should adopt an objective rather than an argumentative approach and should be written in a manner readily understandable by the lay reader. The JOURNAL will

For sale by the Superintendent of Documents

U.S. Government Printing Office, Washington, D.C. 20402 return unpublished manuscripts if so requested, but re

Price 25 cents (single copy). Subscription price $1.25 per year; sponsibility for safe return cannot be assumed. No

50 cents additional for foreign mailing. RECENT DECISION OF THE COMPTROLLER GENERAL

Prepared by the Finance Branch, Office of the Judge Advocate General RETIRED PAY AND SEVERANCE PAY—Service in a higher grade, Efforts to secure remedial legislation have so far been

"temporary" or "permanent," than that held when retired; rule unavailing. of Friestedt case.

A recent holding of the United States Court • Various statutes relating to retirement and retired

of Claims in the Friestedt case, as partially acpay provide, in effect, that if the service member con

quiesced in by the Comptroller General, has led to a cerned has served satisfactorily in a “temporary”

modification of the former rule (Friestedt v. United grade or rank higher than the grade or rank in which

States, No. 237–62, Ct. Cl., 12 Nov. 1965; Comp. Gen. he is serving at time of retirement, he is entitled to

B–149487, 8 Jul 1966). In the Friestedt case the court be advanced to such higher “temporary” grade or rank.

held that the plaintiff, who had been retired for physical (See 10 U.S.C. 1212(a) (B) (ü), 1372(2), 3963(a),

disability while serving as an enlisted member, was en3964, 6151, 8963 (a) and 8964.) At first glance no

titled to retired pay benefits as a first lieutenant under complication or incongruity would appear in such a

the provisions of 10 U.S.C. 1372(2), relating to “highest provision; it might be assumed that if the member at

temporary grade or rank,” irrespective of the fact that some time had served in a grade higher than that held

the highest grade in which he had served was the “perat retirement that prior grade, of necessity, must have

manent” grade of first lieutenant and that he had not held been “temporary." Not so. “The life of the law has

or served in the “temporary" grade of first lieutenant

. not been logic but experience.” Throughout the uni

The basis for the holding was that Congress should not be formed services cases have been discovered in which the

presumed to have intended to produce an absurd result member being retired had served in a higher “per

by giving preference to a "temporary" grade over a manent” grade than the grade in which serving at the

“permanent” one and consequently must have intended time of his retirement. These instances involve both

to provide for advancement whether the higher grade Regulars and Reservists; officers and enlisted; disability

was temporary or permanent. retirees; those retired for years of service; and those

The Comptroller General, on December 1, 1965, Bseparated for disability with severance pay. Pursuant

149487, urged the Department of Justice to attempt to to the literal interpretation of the various statutes in

secure a reversal of the holding of the Court of Claims volved and decisions by the Comptroller General of the

in the Friestedt case. The Assistant Attorney General

, United States (see 37 Comp. Gen. 538; 42 Comp. Gen.

on April 22, 1966, replied that the Department of Justice 156) the services heretofore, for many years, have au

had determined that it would not seek certiorari in the thorized advancement only in cases where the higher grade was “temporary” and have declined to effect

Accordingly, judgment was entered in the case and beadvancement where the higher grade was “permanent.”

came final.

(Continued on page 20)

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Lieutenant Infante analyzes recent judicial opinions dealing with the use of pretrial agreements, assesses the impact of these opinions, and points out potential sources of error in the negotiation, formulization, and utilization of these agreements.

INTRODUCTION

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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.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

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.? 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

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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 Bar

gain Justice, 46 J. Crim. L. 780 (1956).

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).

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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.

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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,11 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.

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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. C1. 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 in

clude 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. 0109Аa.

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insure that the law officer or president of the consisting of a dishonorable discharge, total

court-martial fully inquires into the providency forfeitures, and confinement at hard labor for ten years and seven months. In setting aside the of the accused's plea in accordance with the pro

visions of the Manual for Courts-Martial,19 sentence, the Court of Military Appeals noted that the circumstances suggested that the court specifically advising him of the elements of the members surmised from the accused's plea of crimes charged and establishing that the acguilty and from counsel's failure to present a cused is pleading guilty because he is in fact case in mitigation that the accused had an agree guilty. If this procedure is followed, appellate ment with the convening authority and that in courts will generally ignore any post-trial cries

of innocence.20 these situations, courts-martial see "no real purpose in their devoting time and effort to con While the providency of the accused's plea

should be fully scrutinized at trial, great care sideration of an appropriate punishment." 15 The Court went on to admonish that: "A contin should be taken not to divulge to the courtuation of these trends may require re-examina martial that the accused has negotiated a pretion of the practice of negotiating agreement on trial agreement as to his sentence with the conthe plea and the sentence with the convening vening authority.21 As we have already seen, the authority." 16

actual penalty imposed on a defendant must be In this connection, it should also be pointed determined by the court-martial,22 and the barout that the existence of a pretrial agreement gain on the sentence is regarded only as fixing a does not preclude the trial counsel from intro maximum limit to be ultimately approved by the ducing, during the presentencing procedure, convening authority.23 Thus, the court-martial matters in aggravation such as records of pre must be left to arrive at an appropriate punishvious convictions, and rebuttal evidence. Just ment independently, and any information reas the defense counsel has an obligation to pro garding the existence of a pretrial agreement tect the interests of his client in this regard, the would be irrelevant. The issue has not been pretrial counsel is likewise obligated to protect the sented to the Court of Military Appeals or the interests of the government during the sentenc Navy Boards of Review. However, an Army ing proceedings.

Board of Review was confronted with the probClosely related to the effect of a pretrial

lem in United States v. Withey.24 In that case, agreement on counsel's performance at the trial when the court was about to close to vote on the is the question of providency of the accused's sentence, the president asked the law officer plea. The critics of negotiated pleas object that whether the accused had been advised of the the opportunity to bargain for a lenient sentence maximum sentence which could be imposed. The may serve as an illegitimate inducement for an

law officer replied in the affirmative; however, uninformed accused, uncertain of his righ to

he added that the accused had pleaded guilty as plead guilty. There are two rejoinders to this

the result of a prior arrangement with the concontention. Initially, an accused should, wher vening authority as to the maximum sentence ever feasible, be given the opportunity to con that would be ultimately approved. The Board of

sult certified lawyer counsel in pretrial negotia Review ordered a rehearing on the sentence, ve the tions. Such a practice would "insulate him from

holding that such a disclosure to the court prej

udiced the accused.25 The Judge Advocate Genod guy external pressures and hasty and ill-conceived action." 17 The Navy has recognized this need in

eral of the Navy recognized the potential danger cases where the agreement contemplates a puni 19. MCM, par. 70(b).

20. See United States v. Chancelor, 16 USCMA 297, 300, 36 CMR tive discharge.18 Secondly, trial counsel should

453, 456 (1966); and United States v. Chandler, 26 CMR 619

(1958). 15. Id. at 649, 25 CMR at 153.

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

which the procedure is to inquire into the providency of the ac(1960),

cused's plea at an out-of-court heuring by the law officer out of 18. JAG Manual, sec, 0109 Ab(2)(a), requires that a certified lawyer the presence of the court members.

counsel be made available to the accused (unless specifically 22. See supra note 13.
waived by the accused) in those cases wherein the pretrial agree-

23, United States v. Watkins, supra note 6.
ment contemplates a punitive discharge. However, it appears that

24. CM 398157 Whithey, 25 CMR 593 (1957). Compare United States the recent decision of United States v. Tempia, 16 USCMA 629, v. Rinehart, 26 CMR 815 (1958). 37 CMR 249 (1967) in which the Court of Military Appeals adopted

25. It is interesting to note that the president, upon being made aware the Miranda rule (Miranda v. Arizona, 384 US 436, 16 L Ed 2d

of Whithey's pretrial agreement with the convening authority, 694, 86 S Ct 1602) may require a broader expression of the ac

exclaimed: “I see absolutely no purpose in having a court-martial cused's right to lawyer counsel at pretrial agreements. If the pre

if you have a predetermined sentence for the accused." This incitrial negotiations develop into, or take the form of, an "in-custody

dent lucidly illustrates how a disclosure at trial of pretrial negointerrogation," the accused should be advised that he has the right

tiations can impair the court-martial's ability in deliberating and to the presence of a lawyer counsel, either retained or appointed. arriving at an appropriate punishment.

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proval of the adjudged forfeitures. Although the agreement did of such a disclosure by including the following Another instance where the convening authorprovision in the JAG Manual:

ity's intentions may be frustrated is where the Under no circumstances will the court be in any way

provisions of agreement are silent as to one or informed of any negotiations between counsel and

more kinds of punishment. Since the Navy prethe convening authority on the subject of a pretrial

trial agreement form so contains a clause to the agreement; of any such agreement existing at the effect that if the court awards a lesser sentence, time of trial; or of any such agreement made and the convening authority will approve only the later rejected by the accused to permit a plea of not adjudged sentence, the question arises as to guilty.28

whether he can approve that portion of the sen

tence to which there was no agreement. For inDEFECTS IN THE AGREEMENT ITSELF: AMBIGUI. TIES RESOLVED IN FAVOR OF THE ACCUSED

stance, in United States v. Watts,51 the pretrial

agreement provided that the approved sentence We have all had occasion to read clauses in

would not exceed a bad conduct discharge and written documents which have perplexed us with

confinement for nine months. There was no proa double meaning. Ambiguities will always come

vision as to forfeitures. The sentence of the court back to haunt the parties to an agreement when

was a BCD, confinement for six months, and forsuddenly it is discovered that each party to the

feitures of $50.00 per month for six months. bargain understands the provisions differently.

Since the adjudged sentence was equivalent to or In the law of contracts, the general rule is that

less than those types of punishments agreed these contrasting interpretations are construed

upon, the convening authority approved the adagainst him who drafted the instrument.27 How

judged sentence. It was held that the approved ever, in the realm of pretrial agreements, it is

sentence was in excess of the agreement and the well settled that ambiguities are resolved in fa

forfeitures were disapproved. 32 It may well be vor of the accused.28 Keeping this rule of con

that this was not the result desired by the construction in mind, let us review a few of the most notable ambiguities which have cropped up

vening authority. Thus, wherever no deal is in the last decade of case law.

reached as to one type of punishment, such as

confinement or forfeitures, the agreement should In United States v. Stovall,29 the accused pleaded guilty pursuant to a pretrial agreement

spell out the intentions of the parties. For ex

ample, if it is agreed that the accused should not in which it was provided that, in return for the plea, any adjudged bad conduct discharge would

suffer any confinement, the agreement should be suspended by the convening authority for a

specify "no confinement.” If, however, the parperiod of six months. Following the plea and the

ties do not arrive at an agreement on confinefindings of guilty, the court-martial sentenced

ment and intend to rely on the court's deterthe accused to a bad conduct discharge, partial

mination, the agreement should so specify, e.g.,

"Confinement or Restraint: as adjudged by the forfeitures, and confinement at hard labor for

court.” six months. On review the convening authority approved the sentence and probationally sus

Ambiguities have repeatedly arisen as to the pended the punitive discharge for the period of

agreed amount of forfeitures. For instance, a confinement and an additional period of six

recent case was reviewed in which a pretrial months. The Court of Military Appeals, in hold

agreement contained the following provision: ing that this constituted a substantial variation Forfeiture or Fine_Not more than 25 of one month's from the pretrial understanding with the ac pay for three (3) months. cused concerning the period of suspension, ordered the period of suspension reduced to the

On appeal, the appellant argued that he underperiod of confinement. It may well be that the

stood this provision to mean the forfeiture of convening authority intended the period of pro

only two-thirds of one month's pay to be spread bational suspension to run concurrently with the

over a three-month period. The government conperiod of confinement. On the other hand, he

tended that the only logical interpretation was may have intended that the probational period

forfeiture of two-thirds of one month's pay per of six months be in addition to the period of

month for three consecutive months. The amconfinement. If the latter was his desire, he

30. JAG Manual, secs. 0153, 0154. should have explicitly said so in the agreement. 31. CM 401328 Watts, 27 CMR 661 (1958).

32. Compare United States v. Harrington, 27 CMR 696 (1958), in 26. JAG Manual, secs. 0109Ab(1) (c), (2) (d). 27. See, e.g., 17 C.J.S. Contracts 8 324 (1963).

which the Board of Review affirmed the convening aathority's ap 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.

papers of counsel showed that all parties

intended that there be

no limitation as to forfeitures which might be adjudged.

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