United States v. Bradley

UNITED STATES, Appellant

v.

Willie A. BRADLEY, Seaman
U.S. Navy, Appellee

No. 09-5002
Crim. App. No. 200501089

United States Court of Appeals for the Armed Forces

Argued September 23, 2009

Decided January 20, 2010

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. EFFRON, C.J., filed a separate opinion
concurring in the result. BAKER, J., filed a dissenting
opinion.

Counsel

For Appellant: Lieutenant Timothy H. Delgado, JAGC, USN
(argued); Colonel Louis J. Puleo, USMC, and Brian K. Keller,
Esq. (on brief).

For Appellee: Lieutenant Brian D. Korn, JAGC, USN (argued).

Military Judges: John W. Rolph and Christopher D. Connor

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Bradley, No. 09-5002/NA

Judge STUCKY delivered the opinion of the Court.

The Judge Advocate General of the Navy certified two issues

for review pursuant to Article 67(a)(2), Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2006). The

certificate asks this Court to determine whether the United

States Navy-Marine Corps Court of Criminal Appeals (CCA) erred

by (1) finding that the military judge abused his discretion

when he denied the defense motion to disqualify trial counsel

from further participation in the case, and (2) setting aside

the findings and sentence without finding that the trial

counsels’ continued participation in the case resulted in

material prejudice to Appellee. This Court specified the

additional issue of whether, through his unconditional guilty

pleas, Appellee waived the ability to appeal the military

judge’s denial of his motion to disqualify trial counsel. We

hold that Appellee’s unconditional guilty plea waived his

ability to appeal the military judge’s denial of his motion to

disqualify trial counsel as well as the motion to dismiss. We

therefore do not reach the two certified issues.

I.

In the early morning of October 2, 2003, Appellee and three

other sailors were involved in a drive-by shooting. Appellee

and Master-at-Arms Second Class (MA2) Laprie D. Townsend fired

gunshots from MA2 Townsend’s vehicle at a Mitsubishi Galant

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containing three other sailors. One of the sailors in the

Galant was struck by a bullet but survived the incident.

Appellee agreed to a pretrial agreement (PTA) the same day

that charges were referred against him. As part of the PTA, he

agreed to testify against his co-actors in exchange for a grant

of testimonial immunity. In preparation for his testimony

against MA2 Townsend, Appellee met five times with Lieutenant

(LT) Carter D. Keeton, the assistant trial counsel in MA2

Townsend’s court-martial. Appellee subsequently testified on

behalf of the prosecution in MA2 Townsend’s court-martial.

After MA2 Townsend’s court-martial, Appellee withdrew from

his PTA and hired a civilian defense counsel. LT Keeton was

detailed as the lead trial counsel for the case. Prior to

trial, Appellee moved pursuant to Rule for Courts-Martial

(R.C.M.) 907(b)(2) to dismiss the charges and specifications,

arguing that the Government had made derivative use of his

immunized statements and testimony. The military judge

conducted a hearing, pursuant to Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2006), in which both sides fully litigated the motion.

The military judge denied the motion to dismiss. During the

Article 39(a), UCMJ, hearing, the civilian defense counsel also

objected to LT Keeton’s remaining as trial counsel because he

had served as a witness during that hearing. The military judge

overruled the objection.

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Following this denial, Appellee negotiated a new PTA and

changed his pleas to guilty. During the providence inquiry, the

following exchange took place:

MJ: I believe that Seaman Bradley’s plea of guilty
also means that he gives up his right to appeal the
decision I made on his motion to dismiss.

Does the government agree with that?

TC: That is the government’s understanding, sir.

CDC: We agree that the motion to dismiss has been
waived. However, we don’t believe that your -- the
alternative relief we requested was denied, just
facing the trial counsel has been waived.

MJ: I’m sorry, what is the other issue?

CDC: The other issue -- the alternative relief that
we requested that you also denied was the trial
counsel should not participate further in the case.
We think that has not been waived.

MJ: So is Seaman Bradley entering a conditional
guilty plea?

CDC: No, sir.

TC: Excuse me, sir.

MJ: Yes.

TC: I guess we’d like to hear why the defense
believes that hasn’t been waived. It seems like that
it certainly would be pursuant to this [sic] guilty
pleas if it’s not a conditional plea. I guess we’re
just wondering what the reasoning is behind that and
maybe we can, you know, try to figure out, you know,
whether or not this is truly a conditional or
unconditional plea if they feel like they haven’t
waived that right.

CDC: Because, sir, the Kastigar case was -- has been
held to invalidate guilty pleas where prosecution was

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initiated as a result of the use of the immunized
testimony of an accused.

MJ: Yes, but I think that the Manual requires that if
you wish to preserve any issue for appeal --

CDC: Any issue, sir? I don’t think that’s true.

MJ: That may be where you’re right. Only certain
issues need to be in the form of a conditional guilty
plea. Is that your point?

CDC: Yes, sir. We have clearly waived the motion
with respect to the motion to dismiss. I agree with
that. But the alternative relief we requested, which
was the further participation of the trial counsel,
that does not depend upon your ruling. I mean, the
further moving in this case and forward does not rely
on your ruling. It’s not -- I mean he can providently
plead guilty if you’re right about that. Trial
counsel obviously is appropriately here. But I don’t
believe that we waive that.

MJ: But we are establishing for the record that --

CDC: It is an unconditional plea, sir.

MJ: -- it is an unconditional plea.

CDC: Yes, sir.

MJ: And only those issues that don’t require a
conditional plea would be preserved for appeal,
correct?

CDC: Correct, sir.

After the providence inquiry, the military judge convicted

Appellee of one specification of assault with a means likely to

cause grievous bodily harm and one specification of reckless

endangerment. Articles 128 and 134, UCMJ, 10 U.S.C. §§ 928, 934

(2006). The convening authority approved the military judge’s

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sentence of a dishonorable discharge and confinement for forty-

eight months. The CCA set aside the findings and the sentence

in an unpublished opinion. Despite Appellee’s unconditional

guilty plea, the CCA found that “a de facto conditional plea”

existed as to the issue of LT Keeton’s continued participation

in the case. United States v. Bradley, No. NMCCA 200501089,

2008 CCA LEXIS 398, at *21, 2008 WL 5083894, at *7 (N-M. Ct.

Crim. App. Nov. 25, 2008) (unpublished). After the CCA denied

the Government’s motion for reconsideration, the Judge Advocate

General of the Navy certified the issues noted above for review.

II.

An unconditional plea of guilty waives all

nonjurisdictional defects at earlier stages of the proceedings.

United States v. Joseph, 11 M.J. 333, 335 (C.M.A. 1981); United

States v. Lopez, 20 C.M.A. 76, 78, 42 C.M.R. 268, 270 (1970);

United States v. Rehorn, 9 C.M.A. 487, 488-89, 26 C.M.R. 267,

268-69 (1958); United States v. Daughenbaugh, 549 F.3d 1010,

1012 (5th Cir. 2008); 2 Mark S. Rhodes, Orfield’s Criminal

Procedure Under the Federal Rules § 11:52 (2d ed. 1985 & Supp.

2009), and cases cited therein. R.C.M. 910(j) states “a plea of

guilty which results in a finding of guilty waives any

objection, whether or not previously raised, insofar as the

objection relates to the factual issue of guilt of the

offense(s) to which the plea was made.”

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R.C.M. 910(a)(2) provides for conditional guilty pleas as

an exception to the general rule. A conditional guilty plea is

a creature of statute or regulation; there is no constitutional

right to enter such a plea. See United States v. Kuchinski, 469

F.3d 853, 858-59 (9th Cir. 2006) (concluding that the

requirement that government consent to conditional plea is not

an unconstitutional violation of the separation of powers);

United States v. Davis, 900 F.2d 1524, 1526 (10th Cir. 1990);

see also United States v. Forbes, 19 M.J. 953, 954 (A.F.C.M.R.

1985) (stating that the discretion of the government to consent

and the military judge to approve a conditional plea “is not

subject to challenge by an accused”). This being the case, it

follows that compliance with the regulation is the sole means of

entering a conditional plea and preserving the issue on appeal;

such a plea cannot be implied. Manual for Courts-Martial,

United States, Analysis of the Rules for Courts-Martial at A21-

60 (2008 ed.) [hereinafter R.C.M. Drafters’ Analysis]; see

United States v. Pierre, 120 F.3d 1153, 1156 (11th Cir. 1997)

(stating that a conditional plea requires express government

consent under Fed. R. Crim. P. 11(a)(2); silence or inaction

cannot constitute consent).

Appellee’s guilty plea was expressly unconditional.

Nevertheless, the CCA determined that “the military judge’s

ambiguous advisement with regard to waiver, combined with the

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civilian defense counsel’s belief that the issue was preserved

for appellate review, were material factors in [Appellee’s]

decision to plead guilty,” and Appellee was “entitled to

appellate review of his motion to dismiss.” Bradley, 2008 CCA

LEXIS 398, at *19-*20, 2008 WL 5083894, at *6. The CCA found

that “a de facto conditional plea existed as to that issue, even

though the trial counsel did not expressly consent to a

conditional plea on the record.” Id. at *21, 2008 WL 5083894,

at *7 (citing United States v. Stewart, 20 C.M.A. 272, 274, 43

C.M.R. 112, 114 (1971)). The CCA then held that the military

judge had “abused his discretion when he did not disqualify the

prosecutors from further participation in the case and that

their continued participation resulted in a Kastigar violation.”

Id. at *24, 2008 WL 5083894, at *8 (referring to United States

v. Kastigar, 406 U.S. 441 (1972)).

Stewart was decided more than ten years before R.C.M.

910(a)(2) formally authorized conditional guilty pleas in 1984.

Compare R.C.M. 910(a)(2) with Manual for Courts-Martial, United

States para. 70 (1969 rev. ed.). More importantly, Stewart, and

the very few similar pre-R.C.M. 910 cases, e.g., United States

v. Williams, 41 C.M.R. 426 (A.C.M.R. 1969), are not authority

for implying conditional pleas under the present regulatory

regime. Rather, they evince a reluctance to impose waiver of

appellate review in a system in which conditional pleas were

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unavailable. Whatever the possible merits of this approach may

have been, the existence of the rule, and the availability of

such pleas, obviate the need for it. It is settled that

compliance with R.C.M. 910(a)(2) is now the sole means for

entering a conditional plea. “There is no right to enter a

conditional guilty plea. The military judge and the Government

each have complete discretion whether to permit or consent to a

conditional guilty plea.” R.C.M. Drafters’ Analysis app. 21 at

A21-60 (emphasis added). The CCA erred in concluding that there

was a de facto conditional guilty plea. Such a plea cannot be

implied; it can only be manifested by compliance with the rule.

The record is clear that neither the Government nor the military

judge consented to a conditional plea as required by R.C.M.

910(a)(2). Consequently, Appellee’s unconditional guilty plea

waived both the motion to dismiss and the objection to LT

Keeton’s presence on the prosecution team.

While the waiver doctrine is not without limits, those

limits are narrow and relate to situations in which, on its

face, the prosecution may not constitutionally be maintained.

United States v. Broce, 488 U.S. 563, 574-76 (1989) (double

jeopardy); Menna v. New York, 423 U.S. 61, 61-63 (1975) (same).

This is not such a situation, and the waiver doctrine therefore

applies.

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Nor does the application of the doctrine render Appellant’s

plea improvident. It is settled that a guilty plea will not be

rejected as improvident unless there is a substantial basis in

law or fact for doing so. United States v. Inabinette, 66 M.J.

320, 322 (C.A.A.F. 2008). Here, Appellant, represented by

experienced civilian defense counsel, explicitly entered an

unconditional plea of guilty. There is no allegation of

ineffective assistance of counsel, or that Appellant (who was

getting the benefits of a quite favorable pretrial agreement)

did not understand what he was doing. The possibility that he

thought the issue relating to the disqualification of trial

counsel would be preserved in the face of an unconditional

guilty plea does not render that plea improvident.

III.

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside. The record of trial shall be

returned to the Judge Advocate General of the Navy for remand to

the Court of Criminal Appeals for further review pursuant to

Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2006).

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EFFRON, Chief Judge (concurring in the result):

At trial, Appellee moved to dismiss the charges under

Kastigar v. United States, 406 U.S. 441 (1972), contending that

the trial counsel made improper use of Appellee’s immunized

testimony to prepare witnesses for trial. In the alternative,

Appellee moved to disqualify the trial counsel on the grounds

that the trial counsel’s intimate involvement with Appellee’s

immunized statements made it impossible for the trial counsel to

not use Appellee’s immunized statements against him at trial.

The military judge denied both motions. Appellee then entered a

guilty plea.

On appeal, the Court of Criminal Appeals reversed, holding

that the trial counsel should have been disqualified under

Kastigar. United States v. Bradley, No. NMCCA 200501089, 2008

CCA LEXIS 398, at *21, *24, 2008 WL 5083894, at *7, *8 (N-M. Ct.

Crim. App. Nov. 25, 2008) (unpublished). The certified and

specified issues ask us to determine whether Appellee preserved

appellate consideration of the military judge’s ruling on the

disqualification motion, and, if so, whether the military judge

erred.

The majority concludes that Appellee waived the

disqualification issue. On the basis of that conclusion, the

majority holds that the Court of Criminal Appeals erred in
United States v. Bradley, No. 09-5002/NA

reaching the disqualification issue, and the majority remands

the case for further proceedings before the lower court.

I respectfully disagree with the majority’s conclusion that

Appellee waived the disqualification issue. For the reasons set

forth below, I would conclude that: (1) Appellee preserved the

disqualification motion; (2) the military judge correctly denied

that motion; (3) under these circumstances, we may reverse the

decision of the court below dismissing the charges, and we may

remand the case for completion of appellate review; and (4) the

review upon remand should be limited to considering those

issues, if any, that would remain in light of the military

judge’s proper ruling on the motion to dismiss.

Part I analyzes the conditional nature of Appellee’s plea.

Part II addresses the merits of Appellee’s claim that the

military judge erred by denying the disqualification motion.

Part III considers the implications of waiver with respect to

the providence of Appellee’s plea.

I. THE PLEA COLLOQUY

Rule for Courts-Martial (R.C.M.) 910(a)(2) provides in

pertinent part:

With the approval of the military judge and
consent of the Government, an accused may enter a
conditional plea of guilty, reserving the right,
on further review or appeal, to review of the

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adverse determination of any specified pretrial
motion.

R.C.M. 910(j) provides that in the absence of a conditional

plea:

a plea of guilty which results in a finding of
guilty waives any objection, whether or not
previously raised, insofar as the objection
relates to the factual issue of guilt of the
offense(s) to which the plea was made.

During the plea colloquy, the defense expressly

distinguished between the motion to disqualify trial counsel and

the motion to dismiss the charge under Kastigar. The defense

preserved appellate consideration of the disqualification motion

and did not preserve appellate review of his Kastigar motion.

In the course of discussing the effect of Appellee’s plea

on appellate review, defense counsel expressly observed that the

guilty plea would not waive the disqualification issue. Defense

counsel noted that “the alternative relief we requested, which

was the further participation of the trial counsel, . . . does

not depend upon your ruling.” Defense counsel added: “I don’t

believe that we waive that.” In response to defense counsel’s

argument that Appellee’s disqualification motion would be

preserved on appeal under any type of plea, the military judge

stated: “That may be where you’re right. Only certain issues

need to be in the form of a conditional plea.”

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After requesting clarification of the defense position on

waiver, the prosecution offered no objection to the defense

counsel’s repeated assertion that the plea would not waive the

disqualification issue, nor did the prosecution assert that the

military judge erred in indicating agreement with the defense

view. In that posture, the prosecution’s position reflected

consent to the conditional nature of the plea. See United

States v. Carroll, No. NMCM 95 02201, 1996 CCA LEXIS 525, at *8

n.2, 1996 WL 927743, at *3 n.2 (N-M. Ct. Crim. App. Dec. 23,

1996) (unpublished) (finding trial counsel’s failure to object

to military judge’s improper advisement to accused regarding

waiver was sufficient consent for a conditional plea).

To the extent that the record reflects any ambiguity as to

the military judge’s approval and the prosecution’s consent with

respect to the conditional nature of the plea, the

responsibility for any lack of clarity rests with the military

judge and the prosecution, not the defense. In that regard, it

is noteworthy that the Government in the present appeal agrees

with the defense that Appellee’s guilty plea at trial did not

waive appellate consideration of the disqualification issue.

Brief for Appellant at 6-9, United States v. Bradley, __ M.J. __

(C.A.A.F. 2010) (No. 09-5002/NA).

The defense, by contrast, did not preserve the separate

motion to dismiss under Kastigar. At one point in the colloquy,

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defense counsel referred to the plea as “unconditional,” a term

that does not appear in the applicable rule. See R.C.M. 910

(listing guilty and not guilty pleas with or without exceptions,

substitutions, and other variations regarding lesser included

offenses; conditional pleas; and irregular pleas). The military

judge offered the following observation: “those issues that

don’t require a conditional plea would be preserved for appeal,

correct?” Defense counsel answered: “Correct, sir.”

The military judge asked whether Appellee’s guilty plea

would waive appellate consideration of the defense motion to

dismiss based upon Kastigar: “So, Seaman Bradley, let me just

confirm that you understand that by your plea of guilty you also

give up your right to appeal the decision I made on your motion

to dismiss. Do you understand that?” Appellee responded, “Yes,

sir.”

The majority concludes that the references in the record to

an “unconditional” plea establish that the plea waived appellate

consideration of disqualification. The majority observes, and I

agree, that “compliance with R.C.M. 910(a)(2) is now the sole

means for entering a conditional plea.” Bradley, __ M.J. at __

(9). R.C.M. 910(a)(2), however, does not refer to an

“unconditional” plea, and the rule does not require an accused

to invoke the word “condition,” or “conditional,” or any other

formal incantation to preserve appellate consideration of an

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issue. The rule does not even require the defense to reduce the

condition to a written submission -- in contrast to the former

version of the rule and Federal Rule of Criminal Procedure 11.

See R.C.M. 910(a)(2) (1984) (requiring condition be placed in

writing); Fed. R. Crim. P. 11(a)(2) (requiring same). The rule

requires nothing more than what we have in the present case.

The defense placed a condition on his plea -- the preservation

of his disqualification claim -- and the military judge

indicated agreement with that position. The Government did not

assert at trial, and does not contend on appeal, that the issue

was waived. In that context, we should address the lower

court’s ruling on the merits of the military judge’s decision to

deny Appellee’s disqualification motion.

II. THE RULING BY THE MILITARY JUDGE
ON THE MOTION TO DISQUALIFY TRIAL COUNSEL

The military judge denied Appellee’s motion to disqualify

trial counsel. The Court of Criminal Appeals relied on Kastigar

as authority for ruling that the military judge erred in denying

the disqualification motion. Bradley, 2008 CCA LEXIS 398, at

*24, 2008 WL 5083894, at *8. Kastigar, however, addresses the

question of whether charges should be dismissed, not whether

counsel should be disqualified. Even where dismissal of charges

is warranted under Kastigar, a prosecutor is not disqualified

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from participating in future proceedings if the subsequent

charges are based upon evidence wholly independent from the

evidence constituting a Kastigar violation. See, e.g., United

States v. Palumbo, 897 F.2d 245, 251-52 (7th Cir. 1990)

(dismissing indictment for the government’s failure to meet

Kastigar burden but allowing prosecutor to participate in future

prosecution based on wholly independent evidence).

In the present case, the record establishes that Appellee’s

plea waived appellate consideration of his motion to dismiss

under Kastigar. In that posture, his claim on appeal does not

arise under Kastigar but instead may be viewed as a typical

motion to disqualify trial counsel. Although a military judge

has the discretion to disqualify trial counsel for violating an

ethical standard, see, e.g., United States v. Humpherys, 57 M.J.

83, 88 (C.A.A.F. 2002), Appellee has not demonstrated that trial

counsel violated an ethical standard requiring disqualification.

The military judge did not abuse his discretion in denying the

disqualification motion, and the lower court erred in setting

aside the findings and sentence. In that posture, I agree with

the majority that a remand to the lower court is warranted for

completion of appellate review.

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III. THE PROVIDENCE OF APPELLEE’S PLEA

The issues certified by the Judge Advocate General and

specified by the Court did not address the providence of

Appellee’s pleas. A number of courts have held that a plea

should be vacated if the defendant reasonably believed it was

conditional but in fact waived issues the defendant intended to

preserve. See, e.g., United States v. Pierre, 120 F.3d 1153,

1157 (11th Cir. 1997); United States v. Carrasco, 786 F.2d 1452,

1454-55 (9th Cir. 1986) (vacating and remanding for new plea

because defendant reasonably believed that pretrial issues would

not be waived by guilty plea). In the military justice system,

an accused’s “misunderstanding as to a material term” in a plea

agreement invalidates a plea. United States v. Smith, 56 M.J.

271, 273 (C.A.A.F. 2002).

In the present case, defense counsel stated during the plea

inquiry that the disqualification issue would be preserved

notwithstanding Appellee’s guilty plea. The military judge

indicated agreement, responding: “That may be where you’re

right.” Immediately following the plea exchange, the military

judge confirmed that Appellee understood he would waive the

motion to dismiss. But the military judge did not make any

further inquiry regarding Appellee’s understanding as to whether

a guilty plea would waive the disqualification motion as well.

In light of the majority’s conclusion that Appellee waived his

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disqualification claim, the Court of Criminal Appeals will need

to determine whether he did so while believing he preserved that

claim for appeal; and, if so, whether his action represented a

material misunderstanding of his plea.

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BAKER, Judge (dissenting):

The Court goes fishing for waiver and catches it. There

are at least three problems with this approach.

First, Appellee did not unconditionally waive his motion to

remove trial counsel. To the contrary, he waived his Kastigar1

motion and preserved the motion to remove trial counsel. The

military judge, the Government, Appellee, and the Court of

Criminal Appeals all understood this to be the case.

Second, even if Appellee unconditionally pleaded guilty,

Rule for Courts-Martial (R.C.M.) 910(j), the rule on which the

majority relies, only reaches objections which are “relate[d] to

the factual issue of guilt.” If R.C.M. 910(j) reaches beyond

its plain text to cover motions to remove the majority does not

say so nor indicate how.

Third, because this Court has found waiver where none

exists, Appellee’s plea is improvident since it was conditioned

on Appellee’s understanding that his motion to remove trial

counsel was preserved for appeal. The Court of Criminal Appeals

concluded “that the military judge’s ambiguous advisement with

regard to waiver, combined with the civilian defense counsel’s

belief that the issue was preserved for appellate review, were

material factors in the Appellee’s decision to plead guilty.”

United States v. Bradley, No. NMCCA 200501089, 2008 CCA LEXIS

1
United States v. Kastigar, 406 U.S. 441 (1972).
United States v. Bradley, No. 09-5002/NA

398, at *19-*20, 2008 WL 5083894, at *6 (N-M. Ct. Crim. App.

Nov. 25, 2008). The Government concedes this point as well:

“if the Government successfully argues that Appellee waived

review of the disqualification-of-Trial-Counsel issue, then

Appellee’s pleas become improvident and a rehearing is

required.” Nonetheless, this Court’s apparent concern about

appellate delay notwithstanding, the majority declines to find

Appellee’s plea improvident.

Discussion

This case revolves around the colloquy between the military

judge and defense counsel:

MJ: I believe that Seaman Bradley’s plea of guilty
also means that he gives up his right to appeal the
decision I made on his motion to dismiss.

Does the government agree with that?

TC: That is the government’s understanding, sir.

CDC: We agree that the motion to dismiss has been
waived. However, we don’t believe that your -- the
alternative relief we requested was denied, just
facing the trial counsel has been waived.

MJ: I’m sorry, what is the other issue?

CDC: The other issue -- the alternative relief that
we requested that you also denied was the trial
counsel should not participate further in the case.
We think that has not been waived.

MJ: So is Seaman Bradley entering a conditional
guilty plea?

CDC: No, sir.

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TC: Excuse me, sir.

MJ: Yes.

TC: I guess we’d like to hear why the defense
believes that hasn’t been waived. It seems like that
it certainly would be pursuant to this guilty pleas
[sic] if it’s not a conditional plea. I guess we’re
just wondering what the reasoning is behind that and
maybe we can, you know, try to figure out, you know,
whether or not this is truly a conditional or
unconditional plea if they feel like they haven’t
waived that right.

CDC: Because, sir, the Kastigar case was -- has been
held to invalidate guilty pleas where prosecution was
initiated as a result of the use of the immunized
testimony of an accused.

MJ: Yes, but I think that the Manual requires that if
you wish to preserve any issue for appeal --

CDC: Any issue, sir? I don’t think that’s true.

MJ: That may be where you’re right. Only certain
issues need to be in the form of a conditional guilty
plea. Is that your point?

CDC: Yes, sir. We have clearly waived the motion
with respect to the motion to dismiss. I agree with
that. But the alternative relief we requested, which
was the further participation of the trial counsel,
that does not depend upon your ruling. I mean, . . .
moving . . . forward does not rely on your ruling.
It’s not -- I mean he can providently plead guilty if
you’re right about that. Trial counsel obviously is
appropriately here. But I don’t believe that we waive
that.

MJ: But we are establishing for the record that --

CDC: It is an unconditional plea, sir.

MJ: -- it is an unconditional plea.

CDC: Yes, sir.

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MJ: And only those issues that don’t require a
conditional plea would be preserved for appeal,
correct?

CDC: Correct, sir.

MJ: Okay. So, Seaman Bradley, let me just confirm
that you understand that by your plea of guilty you
also give up your right to appeal the decision I made
on your motion to dismiss.

Do you understand that?

Emphasis added.

The majority concludes that “Appellee’s unconditional

guilty plea waived both the motion to dismiss and the objection

to [trial counsel’s] presence on the prosecution team.” United

States v. Bradley, __ M.J. __ (9) (C.A.A.F. 2010). This is

accurate regarding the motion to dismiss. It is not with

respect to the defense request to remove the trial counsel. The

problem here is that while the majority describes the nature of

an unconditional plea and appropriately eschews the notion of an

implied or de facto conditional plea, it fails to explain how or

why the defense motion to remove trial counsel was waived.

It is clear defense counsel understood the distinction

between a conditional and an unconditional plea and the

consequences for entering one as opposed to the other. It is

just as clear from the colloquy that defense counsel understood

that R.C.M. 910(j) applies to an objection that “relates to the

factual issue of guilt of the offense(s) to which the plea was

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made.” It is not clear why or how a motion to remove trial

counsel relates to the issue of guilt, beyond the general point

that all procedures at trial ultimately relate to the question

of guilt or innocence.

The motion to remove was the issue squarely before the

military judge. The military judge’s response -- “That may be

where you’re right” -- suggests that counsel may have had a

better understanding of the law than the military judge. In any

event, the military judge subsequently confirmed with Appellee

their mutual understanding that Appellee was waiving the ruling

on the motion to dismiss. There was no mention of the motion to

remove trial counsel. As a result, the lower court stated,

“[w]ithout ever resolving the waiver question with respect to

the denial of the motion to remove the trial counsel from the

case, the military judge accepted the Appellee’s guilty pleas.”

Bradley, 2008 CCA LEXIS 398, at *17-*18, 2008 WL 5083894, at *6.

Thus, the record indicates that the military judge, the accused

and defense counsel proceeded with the understanding that the

motion to remove trial counsel had been preserved. Is it,

therefore, the majority’s view that what the military judge says

or does in applying R.C.M. 910(j) is not relevant at all?

If defense counsel held an erroneous view of the law

regarding R.C.M. 910(j), the Court should say so and indicate

why. However, in my view defense counsel, the military judge,

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the Court of Criminal Appeals, and the Government on appeal got

it right. The request for removal of trial counsel did not

relate to the factual issue of guilt within the meaning of the

rule. Although related, the motion to dismiss and the request

to remove trial counsel were two separate issues and they were

treated as such during the plea inquiry. The motion to dismiss

was based on Kastigar, 406 U.S. 441, and related to evidentiary

problems for the Government that, according to defense counsel,

resulted from improper use of his client’s immunized statements.

In contrast, the motion to remove trial counsel, from

defense counsel’s perspective, was not integral to the motion to

dismiss. This is reflected in the request for alternative

relief by defense counsel which suggests, from his perspective,

that even if trial counsel’s conduct had not amounted to a

Kastigar violation, the prosecutor acted in a manner

“incompatible with his duties at the trial as to make him

ineligible.” See United States v. Hayes, 7 C.M.A. 477, 478, 22

C.M.R. 267, 268 (1957). Regardless whether or not Appellee

would have prevailed on this argument, he had the right to have

the issue addressed on appeal by this Court.

Having searched for waiver and discovered it, the majority

is confronted with a plea that was conditioned on an

understanding that the defense motion to remove trial counsel

was preserved. Appellee proceeded with his guilty plea with the

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understanding that he was not waiving the request for

alternative relief. As a result, the Government conceded in

this court that if waiver is found, then Appellee’s pleas were

improvident. The Court of Criminal Appeals reached the same

conclusion stating, “Civilian defense counsel’s belief that the

issue was preserved for appellate review, [was a] material

factor[] in the Appellee’s decision to plead guilty.” Bradley,

2008 CCA LEXIS 398, at *20, 2008 WL 5083894, at *6.

Nonetheless, the majority suggests that since Appellee had

competent counsel and a favorable plea agreement, there is no

substantial basis to set aside his plea. As the Chief Judge has

indicated in his separate opinion, there is legal support for

the view that Appellee’s apparently now mistaken belief that his

objection was preserved for review was enough to set aside the

plea in this case. Given this Court’s expressed concern for

appellate delay, hopefully the Government and the Court of

Criminal Appeals will promptly remedy this omission and return

the parties to their status quo ante.

In summary, the record in this case does not support the

conclusion that Appellee waived his request for removal of trial

counsel. In light of the majority’s conclusion that his motion

was waived, Appellee’s plea was not knowingly entered. As a

result, I respectfully dissent.

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