United States v. Sunzeri

DORMAN, Chief Judge. The appellant stands convicted by a general court-martial composed of a military judge sitting alone. Consistent with his pleas, he was convicted of possessing drug paraphernalia, use of marijuana, and use, possession, and distribution of methylenedioxymethamphetamine (ecstasy). These offenses violated Articles 92 and 112a, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 912a. The adjudged and approved sentence includes a bad-conduct discharge, confinement for 10 months, and reduction to pay grade E-l. The appellant has raised two assignments of error. First, he alleges that a provision of his pretrial agreement prohibiting him from presenting the testimony of witnesses located outside of Hawaii, either in person, by telephone, by letter, or by affidavit, violated public policy. Second, he contends that the trial counsel committed prosecutorial misconduct and plain error when he expressed his personal opinion during argument on sentencing. As relief for each assigned error, the appellant asks that we set aside the sentence and authorize a new sentencing hearing. Finding merit in the appellant’s first assignment of error, we will grant relief, mooting any need for discussion of the appellant’s second assignment of error. We have thoroughly examined the record of trial and have considered the appellant’s assignments of error, and the Government’s response. Following that examination,. we conclude that the findings are correct in law and fact and that no error materially prejudicial to the substantial rights of the appellant was committed with respect to the findings. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c). We also find that because a provision in the appellant’s pretrial agreement violated public policy, the sentence must be set aside. Facts The appellant was tried at Naval Station, Pearl Harbor, Hawaii. Prior to the appellant entering pleas, he successfully litigated a motion for the production of two witnesses. Record at 240. Specifically, the appellant sought help from the military judge in securing the attendance of the appellant’s father and his best friend “to testify at trial on the merits.” Appellate Exhibit I at 4. In his Motion raising this issue, the appellant also asserted that his father’s testimony was “relevant and necessary ... during the presentation of a sentencing argument (sic) to assist the trier of fact determine (sic) an appropriate sentence, if applicable: ...” Id. at 3. Eventually the appellant decided to plead guilty, and he entered into a pretrial agreement with the convening authority. Paragraph 18e of that agreement provides, “[t]hat, as consideration for this agreement, I will not require the Government to provide for the personal appearance of witnesses who reside off the island of Oahu to testify during the sentencing phase of the court-martial[J” Appellate Exhibit XI at 4. Paragraph 18f [760] further restricted the appellant’s ability to present evidence during the sentencing phase of his court-martial. It reads as follows: That, as consideration for this agreement, the government and I agree not to call any off island witnesses for presentencing, either live or telephonically. Furthermore, substitutes for off island witness testimony, including but not limited to, Article 32 testimony, affidavits, or letters will not be permitted or considered when formulating an appropriate sentence in this case. Id. Although the military judge apparently had no concerns with respect to paragraph 18c, he did consider rejecting paragraph 18f. Record at 270-72. Before accepting this provision the military judge determined that it had been proposed by the appellant, and that it was “aimed to prevent the government from introducing specific items of evidence in the sentencing proceeding.” Id. at 271. The appellant informed the military judge that were it not for this provision, he would have presented evidence from his father and from his best friend during the sentencing phase of the court-martial. Earlier in the proceedings the military judge had determined that the Government would be required to produce these two witnesses. Id. at 240,271-72. The appellant also informed the military judge that he believed it was in his best interest to enforce this provision. Id. at 272. Following this discussion the military judge determined that he would enforce the provision. He stated: Based on the posture of this case and the fact that this was a term initially proposed by the defense and based on what the defense has disclosed on the record that they are precluded from presenting in this case in return for this provision and tactically that they believe that is in their best interest and they want this provision enforced under the facts of this case, while I might normally consider this particular provision to be unenforceable and contrary to the rule and public policy, at this point I find that Petty Officer Sunzeri and [his trial defense counsel] certainly have made a knowing and intelligent balance of the cost-benefit analysis here and believe tactically that it is in the defense’s best interest to have this provision enforced, and I will, in fact, enforce it. Id. at 272. Pretrial Agreement The appellant argues that paragraph 18f of his pretrial agreement violates public policy. He cites to no specific binding case authority, though he does reference Rule for Courts-Martial 705(c)(1)(B), Manual for Courts-Martial, United States (2002 ed.) That rule provides, in part, that, “A term or condition in a pretrial agreement shall not be enforced if it deprives the accused of: ... the right to complete sentencing proceedings ____” In reviewing a pretrial agreement a military judge is required to strike any provision which he finds to violate “appellate case law, public policy, or the trial judge’s own notions of fundamental fairness____” United States v. Green, 1 M.J. 453, 456 (C.M.A.1976). While we review the military judge’s determination of whether a clause violates his own notions of fundamental fairness under an abuse of discretion standard, United States v. Cassity, 36 M.J. 759, 762 (N.M.C.M.R.1992), in reviewing questions of whether the challenged provision violates appellate decisions or public policy we apply a de novo standard of review. See United States v. Libecap, 57 M.J. 611, 615 (C.G.Ct.Crim.App.2002). What provisions violate appellate case law is determined by reference to precedent. Determining what provisions violate “public policy” is potentially more troublesome. Appellate case law, its sources, and R.C.M. 705 are, themselves, statements of public policy. The United States Court of Military Appeals has observed that a pretrial agreement provision that “substitutes the agreement for the trial, and, indeed, renders the latter an empty ritual” would violate public policy. United States v. Cummings, 17 U.S.C.M.A. 376, 38 C.M.R. 174, 178, 1968 WL 5361 (1968). Beyond that, however, the Court of Military Appeals “has not articulated any general approach to pretrial agreement conditions [761] that can be used to determine which conditions are permissible and which are to be condemned. An analysis of the cases suggests, however, that the court will disapprove those conditions that it believes are misleading or [abridge] fundamental rights of the accused____” 1 Francis A. Gilligan & Frederick I. Lederer, Court-Martial Procedure § 12-25.20 (1991). Identifying the sponsor of a questioned provision — Government or defense — has been helpful in determining whether the provision’s inclusion in a pretrial agreement violates public policy. Cassity, 36 M.J. at 761-62. The appellant proposed the now-challenged provision of his pretrial agreement. Furthermore, although the provision restricted his ability to present certain evidence during the sentencing portion of his court-martial, it also placed the same restriction upon the Government. In fact, at trial the appellant, through counsel, indicated that the provision was intended to prevent the Government from introducing specific items of evidence. The appellant got precisely what he bargained for. That being said, however, absent specific appellate guidance on the provision we have before us, we must answer the question, “Did this provision deprive the appellant of a complete sentencing proceeding?” We conclude that it did. First, R.C.M. 705(c)(1)(B) is very specific in providing that certain conditions can never be included in pretrial agreements. Absent decisional authority, that Presidential rule should be afforded its plain meaning. See, e.g., United States v. Davis, 47 M.J. 484 (C.A.A.F.1998)(holding that when the President affords servicemembers certain rights in the Manual for Courts-Martial, appellate courts are not free to disregard those rights). To find that the appellant had been afforded a complete sentencing hearing, when he was unable to present any evidence from individuals who did not live on the island of Oahu, would simply ignore the plain meaning of “complete sentencing hearing,” particularly so where the appellant told the military judge that but for the provision he would have presented more evidence. We, unlike our dissenting colleague, find no ambiguity in this language, and thus no need to redefine what we believe to be its commonly understood meaning.1 In construing the language of a statute or rule, it is generally understood that the words should be given their common and approved usage.” United States v. McCollum, 58 M.J. 323, 340 (C.A.A.F.2003). Were we to go down the road charted by our dissenting colleague, appellate courts would soon be obfuscating Manual language which, in its simplicity, needs no further definition. Second, the fact that R.C.M. 705(c)(2)(E) allows for a pretrial agreement to provide for the waiver of the right to the personal appearance of witnesses at a sentencing hearing, lends support to a strict, yet basic, reading of R.C.M. 705(c)(1)(B). In providing for the waiver of the right to personal witnesses in sentencing proceedings, it seems clear that the President authorized that as the sole limitation to the general rule that the accused is entitled to “complete sentencing proceedings.” Even United States v. Jones, 23 M.J. 305 (C.M.A.1987), which the Government relies upon, can be used as support for finding that this provision violates public policy. What we are left with, then, is a defense judgment that its proposal was in the best interests of the accused and a well-orchestrated effort to achieve a successful outcome. Neither the judgment nor the elected tactical approach violates any public norm. An accused is allowed to attempt orchestration of that stage in the process. Only actions which may reasonable be construed as attempts to orchestrate the trial proceeding itself will be rebuffed. [762] Id. at 307 (footnote omitted). In Jones, our superior court upheld a provision in a pretrial agreement in which the accused had agreed to waive some pretrial motions concerning issues that would have been waived by the accused’s guilty plea anyway. Such an action could hardly be said to be one orchestrating the trial proceedings themselves. Furthermore, the court noted in Jones that counsel’s statements that there were issues he would have raised appeared to be “ ‘puffing’ support for his election and tactic to persuade his ease into a prearranged deal.” Id. at 307. In the case before us, there is no puffing. The appellant had litigated and won a motion requiring the Government to produce the two witnesses. Third, there has been a move towards approving pretrial agreement provisions that originate with the appellant. United States v. Weasler, 43 M.J. 15 (C.A.A.F.1995); Jones, 23 M.J. at 305; and United States v. Rivera, 44 M.J. 527 (A.F.Ct.Crim.App.1996). There has also been a trend to allow provisions that bargain away rights that would have been waived by failing to raise them in a timely manner. See United States v. Edwards, 58 M.J. at 49 (C.A.A.F.2003); Weasler, 43 M.J. at 15; United States v. Gibson, 29 M.J. 379 (C.M.A.1990); and Jones, 23 M.J. at 305. None of these cases, however, have squarely dealt with R.C.M. 705(c)(1)(B), and neither the Government nor our dissenting colleague has cited a single case that suggests that we should ignore the very specific prohibition contained in that Rule. Furthermore, while Weasler upholds a pretrial agreement provision that required the accused to waive a motion concerning unlawful command influence, because to do “otherwise would deprive [the] appellant of the benefit of his bargain,” Weasler, 43 M.J. at 19, the provision was not specifically prohibited by R.C.M. 705. Additionally, the Court of Appeals for the Armed Forces also found beyond a reasonable doubt that Weasler was not subjected to any unlawful command influence. As noted by Judge Mollison in his Cassity decision, “[t]he rules of the marketplace, however, are not permitted to operate unregulated in the military justice system. Despite the mutual assent of the parties, the propriety of a particular pretrial agreement provision and its operation in the case must be assessed in view of the basic tenets of the military justice system.” Cassity, 36 M.J. at 762. We find R.C.M. 705(c)(1)(B) to be one of those tenets, and a very clear one at that.2 While we fully understand the “policy” arguments advanced by the Government and our colleague, we are constrained to apply the law. We note that in advancing these policy arguments there has been no citation to a single case wherein either our superior court or this court has enforced a term of a pretrial agreement that arguably violated R.C.M. 705(c)(1)(B). That rule narrowly proscribes the area in which the President has determined a pretrial agreement may not be used to restrict the rights of the accused. The proposal before us did just that, in violation of that rule — in violation of public policy. The Government further argues that even if the challenged provision violates public policy, the appellant was not prejudiced. We cannot reach that conclusion. The appellant was denied a complete sentencing hearing. To say that the testimonies or affidavits of the appellant’s father and best friend would have had no impact on the sentencing authority is nothing but speculation. Knowing that trial defense counsel seldom reveal their hand to the Government, even in pretrial motions, we cannot with any confidence know the nature of the evidence that these two witness would have provided, nor what their impact would have been. To suggest otherwise discounts the value of parental testimony. Conclusion Accordingly, the findings are affirmed. With respect to the sentence, we find that the only appropriate remedy is to set it aside and return the case to the Judge Advocate General of the Navy. He may then return the case to the convening authority who may order a rehearing on sentencing or approve a [763] sentence of no punishment. If a rehearing is ordered, while paragraph 18c of the pretrial agreement may be enforced, paragraph 18f may not be enforced. Judge HARRIS concurs. Footnotes [1] The dissent states that of the protected rights under R.C.M. 705(c)(1)(B), the right to a complete sentencing proceeding is "perhaps the least clear and the most difficult to define,” contrasting that right to the right to due process. We find just the opposite, citing for example the volumes of appellate decisions that have attempted to determine just what process is due. While in some cases, it may be difficult to determine whether an accused was deprived of a complete sentencing proceeding, this is not such a case. [2] We note an early decision decided by the Army Board of Review in which it stuck down a pretrial agreement provision that precluded offering any evidence in extenuation or mitigation. United States v. Callahan, 22 C.M.R. 443, 1956 WL 4803 (A.B.R.1956). Callahan was cited with approval in United States v. Cummings, 38 C.M.R. 174, 1968 WL 5361 (C.M.A.1968).