UNITED STATES, Appellee
v.
Jeremy K. EDWARDS, Airman Basic
U.S. Air Force, Appellant
No. 02-0229/AF
Crim. App. No. ACM S29885
United States Court of Appeals for the Armed Forces
Argued October 15, 2002
Decided January 28, 2003
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Major Patricia A. McHugh (argued); Colonel
Beverly B. Knott and Major Jeffrey A. Vires (on brief).
For Appellee: Lieutenant Colonel Lance B. Sigmon (argued);
Colonel Anthony P. Dattilo (on brief); Lieutenant
Colonel LeEllen Coacher, Major Mitchel Neurock, and
Major Bryan T. Wheeler.
Military Judge: James L. Flanary
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Edwards, 02-0229/AF
Judge ERDMANN delivered the opinion of the Court.
A special court-martial composed of a military judge
sitting alone convicted Appellant, pursuant to his pleas, of one
specification of wrongful use of lysergic acid diethylamide
(LSD) and one specification of wrongful use of marijuana, both
in violation of Article 112a, Uniform Code of Military Justice
[hereinafter UCMJ], 10 U.S.C. § 912a (2002). Appellant was
sentenced to a bad-conduct discharge and confinement for four
months. The convening authority approved the sentence as
adjudged, and the Air Force Court of Criminal Appeals (CCA)
affirmed the findings and sentence.
On Appellant’s petition, we granted review of the following
issue:
WHETHER IT IS AGAINST PUBLIC POLICY TO REQUIRE AN ACCUSED
TO WAIVE HIS RIGHT TO ALERT THE COURT, IN AN UNSWORN
STATEMENT, OF THE VIOLATIONS OF HIS RIGHTS TO HAVE COUNSEL
PRESENT WHEN HE WAS INTERROGATED BY MILITARY CRIMINAL
INVESTIGATORS IN ORDER TO BE PERMITTED TO OBTAIN A PRETRIAL
AGREEMENT.
FACTS
Appellant entered the Air Force in February 2000 and was
assigned to the 335th Training Squadron, Keesler Air Force Base,
Mississippi, at all times relevant to the charge and
specifications in this case. On May 20, 2000, Appellant and two
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of his fellow classmates, Airman Basic (AB) Choyss Lowery and
Airman Adam Saunders, took a trip to New Orleans to hang out and
have some fun. Once in New Orleans they walked down Bourbon
Street, stopping in bars and trying to meet women. They
eventually entered into conversation with two women, one of whom
had purple hair. Following some conversation, the purple-haired
woman invited the airmen to her house.
When they arrived at her house, Appellant noticed marijuana
sitting on a table. He asked the woman if he could have some
marijuana, and she said that he could. Appellant then rolled a
marijuana cigarette, lit it and smoked it. The woman and AB
Lowery shared the marijuana cigarette with Appellant. The woman
later offered the airmen some “acid.” She handed an Altoid
breath mint that contained LSD to Appellant and AB Lowery. Both
Appellant and AB Lowery swallowed one breath mint containing the
LSD.
The Air Force Office of Special Investigations (AFOSI)
conducted an investigation, and Appellant was subsequently
charged. Appellant was represented by the Area Defense Counsel
(ADC) at Keesler Air Force Base who provided notice of the
representation to the AFOSI and informed them that all requests
for questioning must go through him. After this notice the
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AFOSI directly contacted Appellant and, unbeknown to his defense
counsel, conducted an interrogation.1
During the pretrial stages of the case, the parties discussed
terms for a pretrial agreement in which appellant would plead
guilty in exchange for a four-month cap on confinement. The
defense counsel later submitted the pretrial notice required by
Uniform Rules of Practice Before Air Force Courts-Martial Rule
3.1(D) (2002) [hereinafter Uniform Rules].2 This notice included
a summary of Appellant’s intent to raise in his unsworn
statement alleged constitutional violations that occurred as a
result of the AFOSI interrogation.
After the Government received this notice, it informed the
defense counsel that it would not support the pretrial agreement
if Appellant intended to discuss any alleged violation of his
constitutional rights. Following consultation with his defense
counsel, Appellant agreed to accept the new terms of the
pretrial agreement.
1
It is not contested that the AFOSI questioning centered on the conduct of
the other two airmen and did not elicit or result in any evidence that could
have been used against Appellant.
2
This rule requires the defense to provide notice of any matter arguably
inadmissible, irrelevant or immaterial that may be included in the accused’s
unsworn statement.
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The language of the pretrial agreement provides, in
pertinent part, as follows:
h. Agree to waive any motion regarding my constitutional
rights to counsel and my right to remain silent during
AFOSI interviews and other questioning conducted by the
AFOSI that occurred after I was represented by counsel. In
addition, I agree not to discuss any of the circumstances
surrounding my interrogation or questioning during my care
[sic] inquiry, any sworn statement, any unsworn statement
during my trial. Although it was my intention to discuss
these matters at my trial, I specifically waive my rights
to discuss these matters to gain the benefit of this
pretrial agreement.[3]
The military judge recognized that this provision of the
pretrial agreement might involve public policy considerations.
As part of his inquiry into the terms of the pretrial agreement
the military judge stated: “And in order to ensure that this
does not violate public policy, I am going to inquire into that
now during this particular inquiry.” The military judge then
launched into the following inquiry:
MJ: And sir, also you state that originally you were
intending to discuss these matters at trial, but you
specifically waived the right to discuss these matters to
gain the benefit of the pre-trial agreement. Is that
correct?
3
Appellant limits his appeal to whether the provision in the pretrial
agreement in which he waived his right to raise the interrogation by the
AFOSI in his unsworn statement violates public policy. The pretrial
agreement also contains language that could be construed to constitute a
waiver of appellant’s right to raise the issue in his Care inquiry. While
the language was obviously not interpreted in that manner by the parties
below, the Court notes that any provisions of a pretrial agreement that
inhibit the providence inquiry or the inquiry into the pretrial agreement
would not be appropriate. See Article 45(a), UCMJ, 10 U.S.C. § 845(a)
(2002); Rule for Courts-Martial 910(e)-(f); United States v. Green, 1 M.J.
453 (C.M.A. 1976); United States v. Care, 18 C.M.A. 535, 539-42 (1969).
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ACC: Yes, sir.
MJ: And you realize that, obviously, you have got the
right to bring these matters to the court’s attention in
your unsworn statement, or potentially through sworn
statements, either one, both in the finding – well, at
least sworn testimony in the findings aspect, if you had
plead not guilty, and in the unsworn and sworn both in the
sentencing aspect, should it have gone to sentnecing [sic].
Do you realize that?
ACC: Yes, sir.
MJ: Okay. And you also realize that these could be
mitigating factors for sentencing, which potentially could
reduce the sentence that I would impose. And, had this
gone to finding, rather than a plea of guilty, potentially
some of the evidence could have been excluded, based upon
these as potential violations, had the court so found that
they were violations. Do you understand that?
ACC: Yes, sir.
MJ: Okay. And I know this is a lot of stuff to be asking
you, but I want to get it clear on the record for a
potential appellate review, and that is being fully
cognizant and aware of this potentiality, had you succeeded
on the motions and pled not guilty, some of the evidence
may have been excluded, which could have potentially
resulted in an acquittal upon you, or that some of the
stuff that had been brought before the court’s attention
potentially could be a mitigating factor in sentencing. Do
you fully realize that?
ACC: Yes, sir.
MJ: And, with that in mind, is it still your desire to
waive these matters and not pursue them at the trial?
ACC: Yes, sir.
On appeal to the CCA, Appellant argued both that his sentence
was inappropriately severe, and that the noted pretrial
agreement provision was against public policy and, therefore,
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should not be enforced. The CCA found that the sentence was
appropriate and that the pretrial agreement did not violate Rule
for Courts-Martial 705 [hereinafter R.C.M.]. We subsequently
granted review.
DISCUSSION
Rule for Courts-Martial 705 addresses various rules
regarding the use of pretrial agreements in court-martial
proceedings. The provisions pertinent to this case are as
follows:
(c) (1) Prohibited terms or conditions.
(A) Not Voluntary. A term or condition in a pretrial
agreement shall not be enforced if the accused
did not freely and voluntarily agree to it.
(B) Deprivation of certain rights. A term or
condition in a pretrial agreement shall not be
enforced if it deprives the accused of: the right
to counsel; the right to due process; the right
to challenge the jurisdiction of the court-
martial; the right to a speedy trial; the right
to complete sentencing proceedings; the complete
and effective exercise of post-trial and
appellate rights.
. . . .
(d) (3) Acceptance. The convening authority may either
accept or reject an offer of the accused to enter into a
pretrial agreement or may propose by counteroffer any terms
or conditions not prohibited by law or public policy. The
decision whether to accept or reject an offer is within the
sole discretion of the convening
authority. . . .
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In the present case, Appellant does not challenge the
meaning or scope of the provision at issue, nor does he assert
that his waiver was not knowing and voluntary. Appellant argues
only that the pretrial agreement violates public policy because
it prohibited him from discussing, in his unsworn statement, the
circumstances surrounding AFOSI’s interrogation of him.
Appellant does not argue that he was wrongly deprived of the
right to raise this issue in a motion or through other
witnesses. He does not allege that the interrogation produced
evidence that would have been used against him at trial, nor
does he argue that his plea was involuntary.
Therefore, we need only determine whether the challenged
provision in the pretrial agreement violated public policy. In
turn, if the provision is not contrary to public policy or
R.C.M. 705, an accused may waive the underlying right if that
waiver is knowingly and voluntarily executed.
To the extent that a term in a pretrial agreement violates
public policy, it will be stricken from the pretrial agreement
and not enforced. See R.C.M. 705(c)(1)(B); United States v.
Clark, 53 M.J. 280, 283 (C.A.A.F. 2000). Under those
circumstances, public policy prohibits the accused from waiving
the underlying right or privilege as part of the pretrial
agreement. Consequently, when pretrial agreements are
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challenged based upon alleged violations of public policy, the
cases invariably discuss the issue in the context of waiver.
Criminal defendants may knowingly and voluntarily waive
many rights and Constitutional protections. See, e.g., Ricketts
v. Adamson, 483 U.S. 1, 10 (1987); Boykin v. Alabama, 395 U.S.
238, 243 (1969); Johnson v. Zerbst, 304 U.S. 458, 465 (1938).
Further, the U.S. Supreme Court has held that “absent some
affirmative indication of Congress’ intent to preclude waiver,
we have presumed that statutory provisions are subject to waiver
by voluntary agreement of the parties.” United States v.
Mezzanatto, 513 U.S. 196, 201 (1995). In United States v.
McFadyen, 51 M.J. 289 (C.A.A.F. 1999), this Court noted that an
accused may waive significant rights as part of a pretrial
agreement and held that an accused could waive his right to
challenge his pretrial treatment in a pretrial agreement. Id.
at 290-91 (citing United States v. Rivera, 46 M.J. 52 (C.A.A.F.
1997)) (an accused may waive evidentiary objections); United
States v. Weasler, 43 M.J. 15, 19 (C.A.A.F. 1995) (where
unlawful command influence in the preferral of charges was
alleged, it was permissible for the accused to offer to waive
unlawful command influence); United States v. Burnell, 40 M.J.
175 (C.M.A. 1994) (waiver of trial by court-martial composed of
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members); United States v. Gansemer, 38 M.J. 340 (C.M.A. 1993)
(waiver of administrative board is permissible)).
The Court in McFadyen, however, also voiced concern that
Article 13, UCMJ, 10 U.S.C. § 813 (2002), (pretrial punishment)
waivers should only be executed with full knowledge of the
implications of the waiver and provided a procedure that
military judges should follow when faced with a pretrial
agreement containing an Article 13 waiver. This procedure
requires the military judge to inquire into the circumstances of
the pretrial confinement and the voluntariness of the waiver,
and to ensure that the accused understands the remedy to which
he would be entitled if he made a successful motion. Id. at
291. The analysis of the military judge in this case was
consistent with McFadyen, adjusted to address the specific
waiver raised here.4
Rule for Courts-Martial 705(c)(1)(B) does not prohibit an
accused from waiving his right to notify the court of the
circumstances surrounding AFOSI’s interrogation of him without
notice to his defense counsel. While Appellant argues that the
waiver deprived him of a “complete sentencing proceeding”
4
McFadyen was not cited by the military judge, and it is not evident from the
record he either referred to McFadyen or developed a similar analysis on his
own volition out of an abundance of caution.
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pursuant to R.C.M. 705(c)(1)(B), the right to make an unsworn
statement is not unlimited. R.C.M. 1001(c)(2)(A) provides that
an unsworn statement may be made “in extenuation, in mitigation,
or to rebut matters presented by the prosecution, or for all
three purposes whether or not the accused testified prior to
findings.” The fact that appellant was interrogated outside the
presence of counsel, even if not justified or excusable, does
not serve to “explain the circumstances” of the offense, tend to
“lessen the punishment to be adjudged,” or rebut anything
presented by the prosecution. See R.C.M. 1001(c)(1). In this
case, voluntarily waiving the right to raise this issue in an
unsworn statement did not deprive appellant of a “complete
sentencing proceeding.”
Finally, Appellant points out that his initial
understanding with the Government concerning the substance of
the pretrial agreement did not include the provision that
required Appellant not to discuss the AFOSI questioning. It was
only after the notification pursuant to Uniform Rules Rule
3.1(D) that the Government insisted on the contested provision.
Appellant appears to argue that the Government should be
required to honor the initial pretrial agreement discussions.
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Prior to the finalization of the pretrial agreement the
Government proposed an additional term. Rule for Courts-Martial
705 clearly provides that acceptance of the pretrial agreement
is solely within the discretion of the convening authority. The
convening authority was not bound by the initial discussions
between the Government and the defense counsel. Moreover, the
Government in this case was not estopped from changing their
position on the proposed agreement. At that point the Appellant
could have choosen to either accept the pretrial agreement or
reject it and go to trial, where he could have raised any
appropriate issue in an unsworn statement.
CONCLUSION
The military judge in this case conducted an appropriate
inquiry into whether Appellant understood the implications of
the waiver, and whether it was voluntarily and knowingly
executed. We agree with the military judge’s determination that
the waiver was voluntarily and knowingly executed. Under the
facts presented in this case, we hold that Appellant’s waiver of
his right to discuss, in his unsworn statement, that the AFOSI
interrogated him without notifying his defense counsel does not
violate public policy.
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The decision of the Air Force Court of Criminal Appeals is
therefore affirmed.
13