United States v. Smead

UNITED STATES, Appellee

v.

Andrew W. SMEAD, Staff Sergeant
U.S. Marine Corps, Appellant

No. 08-0376
Crim. App. No. 200201020

United States Court of Appeals for the Armed Forces

Argued January 12, 2009

Decided July 27, 2009

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

Counsel

For Appellant: Captain S. Babu Kaza, USMC (argued).

For Appellee: Lieutenant Commander Paul D. Bunge, JAGC, USN
(argued); Brian K. Keller, Esq.(on brief); Commander Paul
LeBlanc, JAGC, USN, and Captain Geoffrey S. Shows, USMC.

Military Judge: R. C. Harris

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Smead, No. 08-0376/MC

Chief Judge EFFRON delivered the opinion of the Court.

In the present case, we review the decision of the United

States Navy-Marine Corps Court of Criminal Appeals in United

States v. Smead (Smead III), No. NMCCA 200201020, 2008 CCA LEXIS

6, 2008 WL 142112 (N-M. Ct. Crim. App. Jan 10, 2008)

(unpublished) (affirming the findings and sentence approved by

the convening authority after a rehearing). The case has a

complex procedural history, described in Part I of this opinion,

involving Appellant’s court-martial, a rehearing, two pretrial

agreements, various actions and omissions related to

implementation of the pretrial agreements, and three proceedings

before the Court of Criminal Appeals.

In the pretrial agreement entered into by the parties at

Appellant’s initial hearing, Appellant agreed to plead guilty to

a number of the charges against him, and the convening authority

agreed to withdraw and dismiss the balance of the charges with

prejudice. The pretrial agreement also provided that Appellant

would be confined at the Miramar base brig so that he could

complete a sex offender treatment program. The agreement

further provided for a delayed effective date with respect to

any reduction of Appellant’s pay grade. In the first appellate

proceeding, the Court of Criminal Appeals concluded that the

Government failed to comply with the provisions of the agreement

regarding confinement at Miramar and the effective date of the

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United States v. Smead, No. 08-0376/MC

reduction in rank. United States v. Smead (Smead I), 60 M.J.

755, 756-57 (N-M. Ct. Crim. App. 2004). The court returned the

record to the convening authority with specific options for

corrective action. Id. at 758.

In the second appellate proceeding, the court found that

the convening authority failed to comply with the court’s remand

order in Smead I with respect to the effective date of the

reduction in pay grade. The court set aside the findings and

sentence and ordered a rehearing. United States v. Smead (Smead

II), No. NMCCA 200201020 (N-M. Ct. Crim. App. Jun 22, 2005)

(unpublished).

At Appellant’s rehearing, the Government reinstated all

charges against Appellant, including -- over Appellant’s

objection -- the charges that had been dismissed with prejudice

at the first court-martial. The parties then entered into a new

pretrial agreement, which included new sentencing provisions and

dismissal with prejudice of the charges previously dismissed

after Appellant’s first court-martial. The Court of Criminal

Appeals subsequently affirmed the results of the rehearing, as

modified by the convening authority in accordance with the

second pretrial agreement. Smead III, 2008 CCA LEXIS 6, 2008 WL

142112.

On Appellant’s petition, we granted review of the following

issue:

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United States v. Smead, No. 08-0376/MC

WHETHER APPELLANT SUFFERED PREJUDICE, FOR
PURPOSES OF ARTICLE 59(A), UCMJ, WHERE THE
CHARGE OF RAPE OF A CHILD, WITHDRAWN AND
DISMISSED “WITH PREJUDICE” AT APPELLANT’S
FIRST COURT-MARTIAL, WAS REINSTITUTED AT
APPELLANT’S REHEARING.

After oral argument, we requested supplemental briefing on the

following issue:

WHETHER THE COURT OF CRIMINAL APPEALS ERRED
IN HOLDING THAT THE CHARGE OF RAPE OF A
CHILD, WITHDRAWN AND DISMISSED “WITH
PREJUDICE” AT APPELLANT’S FIRST COURT-
MARTIAL COULD BE REFILED PRIOR TO
APPELLANT’S REHEARING.

For the reasons set forth in Part II, we conclude under the

particular circumstances of this case that the Government at the

rehearing improperly reinstated charges previously dismissed

with prejudice. In that regard, we note that the Government

failed to implement several provisions of the initial pretrial

agreement, and compounded its errors by failing to implement the

order of the court below on remand. We also note that the

Government did not negotiate an agreement providing for

withdrawal from the pretrial agreement under applicable

circumstances, and that the proceedings did not otherwise

involve conditions authorizing reinstatement of previously

dismissed charges.

With respect to prejudice, we conclude that the error in

reinstating the charges was not prejudicial under the

circumstances of this case, including consideration of the

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United States v. Smead, No. 08-0376/MC

findings and sentence approved by the convening authority under

the second pretrial agreement. See Article 59(a), Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 859 (2000).

I. BACKGROUND

A. THE INITIAL COURT-MARTIAL

1. The charges

On September 6, 2001, the convening authority referred the

following charges against Appellant for trial by general court-

martial: receipt and possession of child pornography in

violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000) (seven

specifications); indecent acts with a child, in violation of

Article 134; failure to obey a lawful general regulation, in

violation of Article 92, UCMJ, 10 U.S.C. § 892 (2000); and rape,

in violation of Article 120, UCMJ, 10 U.S.C. § 920 (2000).

2. The pretrial agreement between Appellant and the convening
authority

The convening authority and Appellant entered into a

pretrial agreement on December 7, 2001. Appellant agreed to

request trial by judge alone, waive trial by members, enter into

a stipulation of fact, not object to certain prosecution

exhibits, not request the presence at trial of out-of-area

witnesses, and waive any motions under Rules for Courts-Martial

(R.C.M.) 905(b), 906, and 907(b)(2). Appellant agreed to plead

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United States v. Smead, No. 08-0376/MC

guilty to four of the seven child pornography specifications and

to the offense of indecent acts with a child with the

understanding that he would plead not guilty to the remaining

charges -- violation of a lawful regulation, three child

pornography specifications, and rape. The convening authority

and Appellant agreed to the following disposition of the

remaining charges:

In return for my plea(s) of guilty, and
following the military judge’s acceptance of
my plea(s) in paragraph 10 [the description
of charges and pleas], the convening
authority agrees to withdraw the language
and charge(s) and/or specification(s) to
which I have pled Not Guilty.

The agreement further provided:

Upon announcement of the sentence by the
military judge, the withdrawn language
and/or charge(s) and specification(s) will
be dismissed with prejudice by the convening
authority.

In return for Appellant’s guilty pleas, the convening

authority agreed to suspend any confinement in excess of twelve

years and to waive automatic forfeitures and suspend any

reduction in pay grade below E-6 for six months or until the end

of Appellant’s active duty service date. The convening

authority also agreed that Appellant would serve any confinement

adjudged at the Marine Corps Miramar Base Brig. The agreement

noted Appellant’s understanding “that the purpose for this is so

I can attend the sexual offender rehabilitation class available

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United States v. Smead, No. 08-0376/MC

at the Miramar brig.” If Appellant failed to complete the

sexual offender treatment program, he would lose the benefit of

the sentencing limitation portion of the pretrial agreement.

The agreement contained two provisions permitting the

convening authority to withdraw from the agreement at specified

times. First, during the period before trial, if Appellant

violated any provision of the agreement or committed misconduct

under the UCMJ, the convening authority could withdraw from the

agreement. Second, during the period between trial and

announcement of the sentence, if the guilty plea did not remain

in effect for any reason, the convening authority could withdraw

from the agreement.

The parties agreed that the “agreement constitutes all the

conditions and understandings of both the Government and

[Appellant] regarding the pleas and sentence limitations in this

case.”

3. The plea inquiry

At the initial court-martial, held on September 21, 2001,

Appellant entered pleas in accordance with the pretrial

agreement, pleading guilty to the indecent act offense and to

four of the child pornography offenses, while entering not

guilty pleas to the remaining charges. The military judge

conducted a providence inquiry into each of the offenses to

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United States v. Smead, No. 08-0376/MC

which Appellant pled guilty to ensure the voluntariness and

accuracy of the pleas. See R.C.M. 910(d)-(e).

The military judge also conducted an inquiry into the plea

agreement to ensure that Appellant understood the agreement, to

ascertain whether the parties agreed to the terms therein, and

to determine whether the agreement complied with rules governing

pretrial agreements in R.C.M. 705. See R.C.M. 910(f). In

summarizing the “ways by which the agreement could become null

and void,” the military judge focused on circumstances arising

prior to the announcement of the sentence under which the

convening authority could withdraw from the agreement. The

military judge also noted that Appellant could forfeit the

suspension provisions of the sentencing agreement as a result of

subsequent misconduct but did not identify any post-trial

circumstance in which the agreement would become null and void

in its entirety. With respect to confinement, the military

judge noted Appellant’s agreement to enroll in and complete the

sexual offender treatment program, the convening authority’s

agreement to confine Appellant at the Miramar brig, and the

possibility of confinement at a place other than Miramar upon

completion of the sexual offender treatment program. Appellant

agreed with the military judge’s explanation of the pretrial

agreement, as did counsel for both parties.

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United States v. Smead, No. 08-0376/MC

After accepting Appellant’s pleas of guilty, the military

judge engaged trial counsel in the following colloquy with

respect to the remaining offenses:

MJ: [D]oes the government intend to go
forward on the offenses to which the accused
has entered pleas of not guilty?

TC: No, sir. The government intends to
withdraw that without prejudice to ripen
into prejudice upon announcement of
sentence, sir.

MJ: Your request is granted.

4. Findings and sentence

The military judge found Appellant guilty of the five

offenses to which he had entered guilty pleas. [R. 53-54]

During the sentencing proceeding, Appellant gave an unsworn

statement, which included a variety of apologies and the

following statement: “My goal right now, first and foremost, is

to get whatever counseling I can get so nothing like this would

ever happen again.”

The military judge ruled that twenty-seven years of

confinement was the maximum confinement that could be imposed in

the case. Trial counsel, in his sentencing argument, asked for

a minimum of seventeen years of confinement, and the defense

suggested five years. Defense counsel, in the course of his

closing statement, offered the following observation:

Should he be in prison? Probably, because
he’s got some problems that he needs to deal

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United States v. Smead, No. 08-0376/MC

with; and there is a place in Miramar, in
Miramar brig, where he can be rehabilitated.
And he clearly wants to be part of that
program. He wants to do whatever he can.

The military judge adjudged a sentence that included

confinement for twenty-four years, reduction to pay grade E-1,

and a dishonorable discharge. The military judge also

recommended that the convening authority consider suspension of

confinement in excess of eighteen years for a period of nine

years and deferral of automatic forfeitures and recommended that

the convening authority prohibit Appellant from using a

computer.

5. The convening authority’s action

Following trial, the staff judge advocate (SJA) prepared a

recommendation for the convening authority to consider prior to

taking action on the results of trial. See Article 60(d), UCMJ,

10 U.S.C. § 860(d); R.C.M. 1106. The SJA noted that Appellant

“was arraigned, and tried” on each of the charged offenses.

Under the heading “RESULTS OF TRIAL,” the SJA listed each of the

charged offenses, noting the offenses in which there was a

finding of guilty. With respect to each offense to which

Appellant had pled not guilty, the SJA entered the following:

“Finding: Withdrawn with Prejudice.” The recommendation also

described the impact of the pretrial agreement on the maximum

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sentence and the military judge’s clemency recommendation and

contained a proposed action.

After defense counsel submitted a response to the SJA’s

recommendation, the SJA prepared an addendum that: (1) noted

the defense request for clemency; (2) recommended partial

approval in terms of permitting computer access; and (3)

provided the convening authority with a proposed action. See

Article 60(b), UCMJ, 10 U.S.C. § 860(b) (2000); R.C.M. 1106.

The convening authority approved the action recommended by

the SJA and issued a promulgating order, dated March 5, 2002.

With respect to each offense to which Appellant had pled guilty,

the order noted the finding of guilty. With respect to each

offense to which Appellant had pled not guilty, the order

provided the following description: “Plea: Not Guilty.

Finding: Withdrawn with Prejudice.”

In the promulgating order, the convening authority approved

the sentence, with several modifications conforming to the

pretrial agreement, including suspension of confinement in

excess of twelve years, designation of the brig at Miramar as

the place of confinement, and waiver of automatic forfeitures

for six months for the benefit of Appellant’s wife. The

promulgating order also transmitted the record of trial to the

SJA of the Navy for review by the Navy-Marine Corps Court of

Criminal Appeals under Article 66, UCMJ, 10 U.S.C. § 866 (2000).

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B. THE FIRST REVIEW BY THE COURT OF CRIMINAL APPEALS
(Smead I)

Before the Court of Criminal Appeals, Appellant asserted

that his plea was improvident because he did not receive the

benefit of the pretrial agreement’s provision regarding

confinement at Miramar. See Smead I, 60 M.J. at 756-57. The

defense noted that Appellant had been assigned to Miramar and

then transferred to Fort Leavenworth without being enrolled in

the two-year sexual offender treatment program. The defense

brief stated:

Appellant bargained to be confined at
Miramar so that he could rehabilitate
himself and never again commit the type of
acts for which he was convicted. . . .
Appellant would not have entered into a
pretrial agreement without such a provision
. . . .

The defense further stated that under applicable

regulations, the convening authority did not have discretion to

order a long-term prisoner, such as Appellant, to Miramar, a

fact that “apparently was misunderstood not only by Appellant,

but also by trial defense counsel, government trial counsel, the

military judge, and the convening authority as well.” As a

remedy, the defense requested that the Court of Criminal Appeals

“set aside the findings and sentence and remand the case to an

appropriate Convening Authority who may either dismiss the

Charge and specifications there under or order a rehearing.”

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United States v. Smead, No. 08-0376/MC

The defense also contended that the plea was improvident

with respect to Appellant’s understanding of the sentencing

provisions of the pretrial agreement; that the plea inquiry did

not establish a factual basis for several specifications; and

that the absence of certain documents from the record warranted

reversal.

With respect to the allegation of error regarding

confinement at Miramar, the Government asserted that Appellant’s

initial assignment to Miramar satisfied the terms of the

agreement because he was on notice regarding the possibility of

a transfer. The Government, while rejecting other claimed

errors, noted that the convening authority had erred by ordering

a reduction in grade prior to the date contemplated in the

pretrial agreement and recommended that the Court of Criminal

Appeals take corrective action. The Government, however, did

not raise as a concern or otherwise suggest to the court that

any corrective action was required with respect to the convening

authority’s action, which had treated the charges to which

Appellant pled not guilty as “withdrawn with prejudice.” See

R.C.M. 1107(f)(2) (providing that a reviewing authority may

direct the convening authority to “modify any incomplete,

ambiguous, void, or inaccurate action noted in review of the

record”).

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United States v. Smead, No. 08-0376/MC

The Court of Criminal Appeals agreed with Appellant’s

contention that his plea was improvident because the Government

breached a material term of the pretrial agreement by

transferring Appellant to Fort Leavenworth before he could

complete the two-year sex offender treatment program at Miramar.

Smead I, 60 M.J. at 756-57. The court identified the components

of an appropriate remedy, including “specific performance of the

agreement or an opportunity for the accused to withdraw from the

plea” as well as the option of a post-trial agreement. Smead I,

60 M.J. at 757 (quoting United States v. Smith, 56 M.J. 271, 273

(C.A.A.F. 2002)) (citing Smith, 56 M.J. at 279; United States v.

Perron, 58 M.J. 78, 86 (C.A.A.F. 2003)). The court rejected

Appellant’s remaining assignments of error. Id. at 758.

In light of the Government’s failure to comply with the

terms of the pretrial agreement regarding assignment to Miramar,

id. at 757, the Court of Criminal Appeals ordered a remand to a

convening authority, subject to the following options:

The CA [convening authority] may (1) set
aside the findings and sentence and if
appropriate authorize a rehearing; or (2)
grant specific performance by securing the
appellant’s transfer to the MCAS Miramar
Brig, so that the appellant can participate
in the 2-year sexual offender rehabilitation
course; or (3) provide alternative relief
that is satisfactory with the appellant. . .
Id. at 758.

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United States v. Smead, No. 08-0376/MC

On a separate matter, the court agreed with the

Government’s concession that the convening authority erred in

implementing the effective date provisions for reduction in rank

under the pretrial agreement. Id. at 757-58. In contrast to

its treatment of the Miramar issue, the court did not identify

the reduction in rank as a matter involving providence of the

pleas. The court noted the defect and ordered the convening

authority to take corrective action with respect to the

effective date of the reduction in grade. Id. Although the

decision contained rulings adverse to both parties, neither

party sought further review in our Court. See Article 67(a),

UCMJ, 10 U.S.C. § 867(a) (2000).

C. THE SECOND REVIEW BY THE COURT OF CRIMINAL APPEALS
(SMEAD II)

On January 19, 2005, the Court of Criminal Appeals notified

the parties that the record had been returned to the court. The

notice invited further briefing and attached two documents that

reflected the action taken in response to the court’s earlier

decision. The first attachment, a memorandum from corrections

officials to the Navy Personnel Command, noted that “the Navy-

Marine Corps Court of Criminal Appeals has determined that the

Government did not comply with the pre-trial agreement requiring

attendance in the 2-year sexual offender program” at Miramar.

The memorandum then requested approval to transfer Appellant

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from Leavenworth to Miramar “[p]ursuant to the recommended

remedies” in the court’s decision “for the purpose [of

Appellant] attend[ing] the required sexual offender program.”

The second attachment, a memorandum from the Navy Personnel

Command, approved Appellant’s transfer to Miramar “for the

purpose of attending the Sex Offender Treatment Program.”

In response to the notice, the defense submitted a brief

that raised three issues. First, the defense noted that the

Government had not complied with the court’s order to the

convening authority with respect to correction of the effective

date of the reduction in grade. According to the defense,

because the Government’s noncompliance resulted in substantial

financial harm to Appellant and his family, belated financial

compensation would not provide an adequate remedy. The defense

asked the court to remand the case to the convening authority

with the option of either dismissing the charges or ordering a

rehearing.

In the second issue, the defense characterized the initial

transfer to Leavenworth as an intentional breach of the pretrial

agreement. The defense contended that the delay in returning

Appellant to Miramar had a number of adverse consequences,

including loss of opportunity for clemency or parole, a further

delay of more than six months before the beginning of the next

treatment program at Miramar, and the loss of all privileges

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United States v. Smead, No. 08-0376/MC

earned at each institution upon the occasion of each transfer.

As a remedy, Appellant asked the Court of Criminal Appeals to

reassess the sentence and disapprove at least thirty-three

months of confinement.

In the third issue, the defense asserted improper post-

trial delay based upon the passage of 165 days between the time

of the court’s prior decision and the transfer to Miramar. As a

remedy for post-trial delay, the defense asked the court to set

aside the findings and sentence and dismiss the charges.

With respect to the first issue, the Government

acknowledged noncompliance with the court’s remand order to

correct the effective date of the reduction in rank to comport

with the pretrial agreement. Citing United States v. Perron, 58

M.J. 78, 86 (C.A.A.F. 2003), the Government identified three

remedies available to Appellant:

(1) withdrawal of his pleas of guilt, which
should then result in a rehearing at which
he will be subject to the previous sentence
adjudged if he does not plead guilty[]; (2)
specific performance of the provision in the
pretrial agreement regarding the reduction,
which should then entitle Appellant to
recoup the pay at issue; or (3) a post-trial
plea agreement ‘to avoid a contest to the
providence of the plea.’”

The Government further noted that under Perron, neither the

court nor the Government could impose a particular remedy on

Appellant in this situation, and the Government asked the court

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United States v. Smead, No. 08-0376/MC

to “issue an order that directs Appellant to file a written

response to the Court, stating which of these three remedies he

desires.” As in Smead I, the Government in Smead II did not

raise as a concern or otherwise suggest to the court that any

corrective action was required with respect to the convening

authority’s action, which had treated the charges to which

Appellant pled not guilty as “withdrawn with prejudice.”

The Government addressed the second and third issues,

regarding confinement and treatment at Miramar, by taking the

position that the transfer from Miramar was not the result of

bad faith. The Government also contended that the circumstances

related to assignment to and from Miramar did not amount to

prejudicial post-trial delay.

The Court of Criminal Appeals disposed of the case on June

22, 2005, in a brief per curiam opinion. Smead II, No. NMCCA

200201020. The court agreed with Appellant’s first assignment

of error, regarding failure to correct the effective date of the

reduction in rank, noting that “the convening authority failed

to comply with a material term of the pretrial agreement despite

our prior remand and specific direction that he remedy this

error through specific performance.” Id. (citing Perron, 58

M.J. at 86; Smead I, 60 M.J. at 757-58; United States v.

Castillo, 59 M.J. 600 (N-M. Ct. Crim. App. 2003) (addressing a

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convening authority’s failure to comply with a decision of the

court)).

The court set aside “the findings of guilty and sentence,”

and returned the record for “remand to an appropriate convening

authority who may order a rehearing” -- a remedy consistent with

Appellant’s request with respect to the first assigned error.

Id. The court summarily denied the remaining assignments of

error. Id. Neither party sought further review in our Court.

D. THE REHEARING

1. Re-referral of the original charges

On September 16, 2005, the convening authority referred the

case for rehearing by a general court-martial, using the same

set of charges that had been referred to the original court-

martial in 2001. The referral raised the question of whether

the convening authority could revive all of the charges and

specifications which the convening authority had designated as

“Withdrawn with Prejudice” when taking action after the original

court-martial, including the rape charge.

2. Motions

In the first session of the rehearing, held on September

29, 2005, the military judge noted that the parties anticipated

a motion on the validity of referring charges that had been

withdrawn with prejudice. He urged the parties to file motions

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within the dates set forth in his arraignment and trial

schedule.

By the time of the next session, held on November 30, 2005,

a new military judge had been detailed. The military judge

listed the motions from the defense, including whether the

Appellant should receive additional confinement credit for the

convening authority’s failure to comply with the pretrial

agreement, and whether the noncompliance produced prejudicial

post-trial delay. None of the motions on the list raised the

question of whether the convening authority could refer to a

subsequent court-martial the charges that previously had been

withdrawn and dismissed “with prejudice.” After disposing of

all the motions submitted by the defense, some of which resulted

in relief for Appellant, the military judge reminded the

parties: “One of the issues that was mentioned [in the initial]

. . . session was whether or not the [G]overnment can revive a

withdrawal from prejudice in a situation where that was a term

of the pretrial agreement.”

In the absence of a motion or briefing, the military judge

and the parties addressed the question primarily from the

perspective of whether further proceedings would violate

prohibitions against former jeopardy, whether the Government had

acted in bad faith, and whether the convening authority’s

commitment to withdraw charges was tied to the continuing

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United States v. Smead, No. 08-0376/MC

validity of Appellant’s guilty pleas. They did not focus on the

use of the term “withdrawn with prejudice” in the convening

authority’s action. The military judge denied the defense

motion to dismiss. He observed that the Court of Criminal

Appeals had set aside all the findings, that a rehearing under

those conditions placed the parties in the position that they

had occupied prior to the entry of pleas at the first trial,

that the Government had not acted in bad faith, and that it was

not unfair in those circumstances “to put both parties at the

position of or use [the] status quo ante . . . [and] allow all

of the charges to go forward.” The military judge also stated

that he would permit the defense to reopen the issue if counsel

developed evidence of bad faith or developed other factors

warranting a second look at the issue. At the conclusion of the

motion session, Appellant entered pleas of not guilty to all

charges and specifications.

3. The new pretrial agreement

Several weeks later, on December 21, 2005, the convening

authority and Appellant entered into a new pretrial agreement.

As in the first agreement, Appellant agreed to request trial by

judge alone, enter into a stipulation of fact, not request the

presence at trial of out-of-area witnesses, plead guilty to

indecent acts with a child, and plead not guilty to violation of

a lawful regulation and rape. At the first trial, Appellant had

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pled guilty to four of the seven child pornography

specifications; at the rehearing, Appellant agreed to plead

guilty to three of the seven child pornography specifications,

and to plead not guilty to the remaining four specifications.

With respect to the charges and specifications to which

Appellant would plead not guilty, the new pretrial agreement

provided that the charges would be withdrawn by the convening

authority and dismissed with prejudice, using terms similar to

the first pretrial agreement:

I understand and agree that, in return for
my pleas of guilty, and following the
military judge’s acceptance of my pleas . .
. , the convening authority will withdraw
the charges and specifications to which I
have pled not guilty. After announcement of
the sentence by the military judge, the
withdrawn charges and specifications will be
dismissed by the convening authority with
prejudice.

In return for Appellant’s guilty pleas, the convening

authority agreed to suspend any confinement in excess of 108

months, a reduction of thirty-six months in unsuspended

confinement compared to the period of unsuspended confinement

under the first agreement.

The balance of the agreement contained provisions similar

in effect to the first pretrial agreement with respect to

matters such as misconduct, withdrawal from the agreement, and

cancellation of the agreement. In addition, the agreement

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United States v. Smead, No. 08-0376/MC

contained a variety of provisions regarding pay, administrative

discharge, and other matters not at issue in the present appeal.

The agreement specifically stated that Appellant was “entering

into this agreement freely and voluntarily. Nobody has made any

attempt to force or coerce me [Appellant] into making this

agreement or into pleading guilty.”

4. The plea inquiry and entry of findings at the rehearing

At the rehearing, on January 25, 2006, Appellant entered

pleas in accordance with the pretrial agreement. The military

judge conducted a providence inquiry into the offenses and the

terms of the pretrial agreement. Appellant, who expressed

satisfaction with counsel, confirmed that he freely and

voluntarily entered into the pretrial agreement. He also

confirmed that no one coerced him into signing the agreement or

pleading guilty. Neither Appellant, nor his counsel, raised any

matter inconsistent with the voluntariness of his pleas or his

participation in the plea agreement.

With respect to the offenses to which he was pleading not

guilty, the military judge and Appellant engaged in the

following colloquy:

MJ: Okay. The next paragraph indicates
that the convening authority, through the
trial counsel, will withdraw the charge and
specifications to which you pled not guilty
and that upon announcement of [the] sentence
the withdrawal will be with prejudice.

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United States v. Smead, No. 08-0376/MC

Do you understand that?

ACC: Yes, sir.

MJ: Do you understand that that is a
provision that is a benefit to you?

ACC: Yes, sir.

MJ: That once they are withdrawn with
prejudice they can no longer be brought
against you.

Do you understand that?

ACC: Yes, sir.

The military judge engaged counsel in the following

discussion as he concluded the plea agreement inquiry:

MJ: Do you have any questions concerning
the terms of your pretrial agreement?

ACC: No, sir.

MJ: Do the parties concur with the court’s
interpretation of the terms of the pretrial
agreement?

TC: Yes, sir.

DC: Yes, sir.

MJ: Very well. Do you have any questions
concerning your pleas of guilty, the
pretrial agreement or any other matter we
have discussed up to this point?

ACC: No, sir.

MJ: At this point I find the pretrial
agreement to be in accordance with appellate
case law, not contrary to public policy or
my own notions of fairness, and the
agreement is accepted.

24
United States v. Smead, No. 08-0376/MC

The military judge then returned to the subject of

Appellant’s pleas to the charges:

MJ: Do you have any questions concerning
the meaning and effect of you[r] pleas of
guilty?

ACC: No, sir.

MJ: Do you still wish to plead guilty?

ACC: Yes, sir.

MJ: I find that you have knowingly,
intelligently and consciously waived your
right to a trial of the facts by the court-
martial, to confront the witnesses against
you and to remain silent.

I further find that your pleas are made
voluntarily and with a factual basis, and
they are accepted.

Do you have any motions, trial counsel, with
respect to the offenses to which the accused
entered pleas of not guilty?

TC: Yes, sir.

At this time I ask that they be withdrawn
and upon announcement of sentence they be
dismissed with prejudice, sir.

The military judge reviewed the designation of each charge and

specification affected by the withdrawal motion, confirmed with

counsel for both parties that he would need to enter findings

only with respect to the charges to which the accused entered

pleas of guilty, and entered findings of guilty on those

charges. He then confirmed with both counsel that the findings

“accurately reflect the terms of the pretrial agreement.”

25
United States v. Smead, No. 08-0376/MC

5. Sentencing and related motions at the rehearing

After the parties presented sentencing witnesses and

documentary evidence, the military judge sentenced Appellant to

twenty years of confinement, a dishonorable discharge, and

reduction to pay grade E-1. He then examined the sentence

limitation portion of the pretrial agreement, confirmed the

parties’ understanding that the maximum period of confinement

under the agreement would be 108 months, and concluded that the

agreement as a whole was lawful and appropriate.

The military judge then addressed a number of pending

issues concerning the relationship between the initial trial and

the rehearing, denying defense motions alleging illegal

punishment during service of his initial sentence, failure to

grant a speedy rehearing, failure to provide back pay during the

period prior to the rehearing, post-trial delay amounting to

cruel and unusual punishment, and failure to provide a timely

transfer to Miramar amounting to cruel and unusual punishment.

In discussing the Miramar motion, the military judge noted

that the Miramar issue had been the subject of the pretrial

agreement during the initial trial but that matters concerning

Miramar were not covered in the new pretrial agreement. Defense

counsel agreed, and emphasized that he was bringing a new motion

for confinement credit based upon cruel and unusual punishment.

26
United States v. Smead, No. 08-0376/MC

The military judge asked defense counsel if he agreed with the

following summary of the defense position:

[I]f I understand what you’re saying, there
were three remedies directed by the [C]ourt
[of Criminal Appeals] in the initial ruling
based on this. One is to set aside findings
and sentencing and authorize a rehearing;
two, grant specific performance; or, three,
provide alternative relief. The convening
authority failed to act on any one of those
three and as a result of that the first
option was executed. . . .

As a result of that, it would appear that
the accused has now received a three year
break on this sentence.

Defense counsel agreed and asked for confinement credit on the

grounds that the period spent in Leavenworth, rather than in

Miramar, constituted cruel and unusual punishment. The military

judge denied the motion.

In a post-trial session, held on March 5, 2006, the

military judge ordered 2,232 days confinement credit based on

time served, good time credit, earned credit, and other credits

related to the initial sentence. The military judge and the

parties then discussed whether, as a result of the appeal,

Appellant would be disadvantaged by new regulations governing

various credits that would add 263 days to his minimum release

date. In the course of that discussion, the military judge

observed that Appellant had the benefit of a reduced period of

unsuspended confinement under the new pretrial agreement.

27
United States v. Smead, No. 08-0376/MC

Defense counsel acknowledged that Appellant “was able to get the

benefit of a better pretrial agreement this time . . . [and] was

able to shave three years off the sentence,” but that he should

also have the benefit of the credit regulations that would have

been applied if a rehearing had not been required.

The Government opposed the defense motion, arguing that

Appellant benefited from the reduction in the unsuspended

sentence from twelve years to nine years and that any further

reduction would be a windfall. The military judge rejected the

Government’s suggestion that he consider the twelve-year

sentence under the initial pretrial agreement, and the reduction

as a result of the rehearing and new agreement, as a reason for

denying the defense motion. In the course of addressing the

motion, the military judge set forth his understanding of the

relationship between the initial pretrial agreement and the

rehearing:

MJ: The problem [with relying on the
sentence cap in the initial agreement] is
that the government failed to comply with
the terms of that agreement. . .

. . . And so you got a rehearing on findings
and sentence. . . .

. . . So the mandate of the [C]ourt [of
Criminal Appeals] was . . . back to square
one, not guilty, enlisted members. In fact
the accused actually elected that, not
guilty enlisted members . . . .

So that whole 12-year thing is gone. . . .

28
United States v. Smead, No. 08-0376/MC

And it’s gone because of government
misconduct. . . . [T]he convening authority
had . . . several options. One would be to
bring the accused back here and comply with
the terms of the agreement. Two, he could
have reordered a hearing on findings and
sentence. The convening authority delayed,
for whatever reason and there’s not any
evidence to show why it was that he delayed
for as long as he did, but it was long
enough that the appellate courts said we’re
going to basically take the discretion away
from the convening authority and disapprove
the findings and sentence, and reordered a .
. . rehearing on findings and sentence. . .
.

So what we have got is a situation where we
are back here not by something that the
accused did wrong but because of the
government’s [failure to] . . . comply with
the terms of the agreement initially. And
two, the failure of the government to comply
with the mandate of the court. . . .

And so I’m having a problem with that 12-
year number [which] seems to me to be
somewhat irrelevant at this point . . . .

Ultimately, the military judge granted the defense motion

and provided Appellant with 263 days credit based upon the

minimum release date calculations under the regulations in

effect at the time of his initial confinement to ensure that his

period of confinement was not affected adversely as a result of

his successful appeal. The military judge noted that the

Government breached the terms of the initial pretrial agreement

by transferring Appellant to Leavenworth, “which ultimately led

29
United States v. Smead, No. 08-0376/MC

. . . [the] Court of Criminal Appeals to order a rehearing on

findings and sentence.”

The military judge added that the case had been:

returned for rehearing on findings and
sentence based on the actions of the
government in failing to comply with the
terms of the initial pretrial agreement in
this case. As a result of the rehearing,
the accused received a significant reduction
in sentence. However, this does not
constitute a windfall to the accused as the
rehearing resulted from the government’s
failure to . . . comply with the terms of
the original agreement, and the convening
authority negotiated anew with the accused
for the terms of the agreement in this case.

He expressly rejected the proposition that convening authority

had taken into account the changes in calculation of credits “as

a basis for agreeing to the terms of the current pretrial

agreement.” In addition, he noted that if waiver of this issue

had been contemplated, it could have been placed in the pretrial

agreement.

6. The convening authority’s action on the results of the
rehearing

The SJA’s post-trial recommendation, dated November 3,

2006, contained a three-column chart, with a column entry for

each charge and specification, a column entry for the plea

associated with each specification, and a column entry for the

finding associated with each specification. For each

specification for which Appellant had entered a plea of guilty,

30
United States v. Smead, No. 08-0376/MC

the action listed the finding as “Guilty.” For each

specification for which Appellant had entered a plea of “Not

Guilty,” the action listed the finding as “Withdrawn.” In a

separate entry regarding the pretrial agreement, the SJA noted

the sentence limitation of 108 months of unsuspended

confinement. The SJA recommended approval of the sentence as

adjudged, subject to the limitations in the pretrial agreement.

Defense counsel submitted a clemency request on November

30, 2006, noting the illness of Appellant’s mother, the amount

of confinement already served by Appellant, his efforts at

rehabilitation, his financial difficulties, and the adverse

impact of the Government’s noncompliance with the initial

agreement on matters such as rehabilitation opportunities,

confinement credit, and parole.

Defense counsel asked the convening authority to consider

three specific actions: (1) release Appellant from confinement

“as soon as possible”; (2) change the adjudged dishonorable

discharge to a bad-conduct discharge; and provide an additional

six days of confinement credit to correct an error in

calculation at trial.

In support of the request, defense counsel asked the

convening authority to:

consider the fact that SSgt Smead has never
hid[den] from his problems. He accepted
responsibility for his actions in 2001 and

31
United States v. Smead, No. 08-0376/MC

he did so again in 2006 by pleading guilty
to the same offenses. He did not put the
government through a trial and hence, saved
the government time and money. He accepted
responsibility for his actions from the very
beginning . . . .

Defense counsel attached a letter from Appellant covering many

of the same points in his own words. Appellant’s letter stated:

I have worked very hard to learn from my
mistakes. I have never denied my actions,
and take full responsibility for my
shortcomings.

In an addendum dated December 4, 2006, the SJA recommended that

the convening authority approve the six days of confinement

credit and recommended against any additional clemency.

The convening authority issued a promulgating order on

December 5, 2006, that adopted the SJA’s recommendations. The

order used the same three-column format and wording as the SJA’s

recommendation for the charges and specifications.

E. THE THIRD REVIEW BY THE COURT OF CRIMINAL APPEALS
(SMEAD III)

The Court of Criminal Appeals notified the parties on

February 27, 2007, that the rehearing had been completed and the

record was again before the court for appellate review. The

defense submitted three assignments of error: (1) erroneous

reinstitution at the rehearing of the rape charge that had been

withdrawn and dismissed at the original trial; (2) unreasonable

multiplication of charges with respect to two of the child

32
United States v. Smead, No. 08-0376/MC

pornography specifications; and (3) denial of the right to

timely post-trial review.

1. The views of the parties regarding the status of the rape
charge at the rehearing

With respect to the first issue, regarding inclusion of the

rape charge at the rehearing, the defense contended that

reviving the rape charge “tended to coerce the Appellant into a

pretrial agreement beneficial to the Government.” In support of

the assigned error, Appellant contended that reinstitution of

the charge was unfair because there was insufficient evidence of

penetration to support a charge of rape and that the plea of

guilty to indecent acts encompassed the conduct at issue in the

rape charge. He also contended that reinstitution of the rape

charge constituted impermissible prosecutorial vindictiveness,

see North Carolina v. Pearce, 395 U.S. 711, 725 (1969), in

response to Appellant’s success in the earlier appeals. In

addition, the defense contended that reinstitution of the charge

was unfair because it did not provide Appellant with the benefit

of his agreement with the convening authority -- dismissal of

the charge with prejudice.

Although the rape charge was dismissed at the rehearing,

the defense asserted prejudice on the grounds that the charge of

rape carried a potential punishment of life imprisonment, and

“[t]he risk of possible punishment of confinement for life was a

33
United States v. Smead, No. 08-0376/MC

major consideration in Appellant’s decision to enter into a new

pretrial agreement with the convening authority.” In support of

the defense brief, Appellant submitted a declaration stating:

When my case was remanded for a retrial, I
was charged with all of the offenses for
which I was originally charged, including a
charge of rape of a child that was withdrawn
and dismissed with prejudice at my first
trial. As this offense carried a possible
life sentence, the withdrawal and dismissal
of this rejuvenated offense was a major
consideration in my decision to enter into a
new pretrial agreement with the convening
authority. But for the government’s
obligation to withdraw and dismiss the rape
charge, I do not believe that I would have
entered into this pretrial agreement.

With respect to the status of the rape charge, the defense

brief stated: “Notwithstanding the earlier dismissal ‘with

prejudice’ of the charge at issue in this case, Appellant

concedes that this dismissal ‘with prejudice’ was illusory.” In

that context, the defense did not contend before the Court of

Criminal Appeals that the withdrawn charges had been dismissed

with prejudice as a matter of law after the first trial.

Instead, the defense asserted that reinstitution of the rape

charge against Appellant was unfair due to evidentiary issues,

prosecutorial vindictiveness, and failure to provide Appellant

with the benefit of the convening authority’s initial agreement

to dismiss the charge with prejudice -- all resulting in

coercion with respect to the second pretrial agreement. As a

34
United States v. Smead, No. 08-0376/MC

remedy, the defense asked the court to set aside the findings

and sentence and remand the case for a rehearing on charges that

would exclude the rape charge.

The Government’s answer included a description of the

offenses to which Appellant had pled not guilty at the initial

trial, including the rape charge, and stated: “Pursuant to the

terms of the pretrial agreement those charges were subsequently

withdrawn and dismissed.” With respect to the charges at the

rehearing, the Government noted that the rape charge “was again

withdrawn and dismissed with prejudice.” While noting that the

double jeopardy clause does not preclude dismissal of charges

prior to the introduction of evidence and does not preclude a

later trial on those charges under United States v. Cook, 12

M.J. 448, 452 (C.M.A. 1982), the Government acknowledged that

the present case could be distinguished from Cook. In

particular, the Government observed that the decision in Cook

expressly noted that the record of trial did not indicate that

the withdrawal of charges was with prejudice. See id. at 454.

The Government contrasted Cook with the present case, noting

that “the dismissal of charges in this case appears to have been

affected [sic] with prejudice.” The Government made no effort

to treat the rape charge as validly revived, but instead took

the following position: “Assuming arguendo that the Government

was precluded from re-referring the charge in question,

35
United States v. Smead, No. 08-0376/MC

Appellant is not entitled to any relief as he suffered no

prejudice from the re-referral of the charges at the rehearing.”

The Government then discussed prejudice in terms of the relative

punishments available at both hearings, the relative actual

punishments, and the voluntariness of Appellant’s pleas at the

rehearing.

In reply, the defense took note of the Government’s

statement that the charges at the first trial appeared to have

been dismissed with prejudice, adding: “If, as the Government

concedes, prejudice attached to the dismissal of the rape charge

at Appellant’s first court-martial, then the convening authority

erred by rejuvenating this charge at Appellant’s retrial.” The

defense then returned to its original argument, contending:

“But even if this Court disagrees with the Government’s

concession that prejudice attached to the dismissal of this

offense, the convening authority erred by unfairly rejuvenating

this charge to coerce Appellant into entering a new pretrial

agreement.”

On May 21, 2007, the Court of Criminal Appeals issued an

order for supplemental briefing related to the Government’s

position on the status of the rape charge. The order observed

that the Government “admits that the charge had been dismissed

with prejudice and should not have been referred at the second

court-martial, but alleges that there was no error because the

36
United States v. Smead, No. 08-0376/MC

charge was again withdrawn and dismissed by the terms of the

pretrial agreement.” The order directed the parties to brief

the issue of whether trial defense counsel was ineffective for

not informing Appellant during pretrial agreement negotiations

that the rape charge had been referred improperly for trial at

the rehearing.

In response, the defense took the position that trial

defense counsel was not ineffective at the rehearing because the

defense moved at the rehearing to dismiss the rape charge and

the military judge had rejected that position. The Government

concurred with the defense position. The Government did not

express any disagreement with the court’s characterization of

the Government’s position that the rape charge had been

dismissed with prejudice and should not have been referred for

trial at the second proceeding.

2. The decision of the Court of Criminal Appeals

The Court of Criminal Appeals affirmed the findings and

sentence, concluding that “under the unique circumstances

existing in this case, the Government was not precluded from re-

referring the allegation of rape against the appellant at his

second court-martial.” Smead III, 2008 CCA LEXIS 6, at *16,

2008 WL 142112, at *5.

In the course of describing the procedural history of the

case, the court made a number of observations pertinent to the

37
United States v. Smead, No. 08-0376/MC

present appeal. The court viewed Smead I as a case involving

the Government’s “material breach” of its promise to transfer

Appellant to Miramar, in which the Court provided the convening

authority with three options as a remedy: (1) order a rehearing

after setting aside the findings and sentence; (2) grant

specific performance by securing Appellant’s transfer to Miramar

so he could participate in the two-year rehabilitation program;

or (3) provide alternative relief satisfactory to Appellant.

2008 CCA LEXIS 6, at *5, 2008 WL 142112 at *2 (quoting Smead I,

60 M.J. at 758).

Regarding the posture of Smead II, the court in Smead III

stated: “Inexplicably, the government failed to accomplish any

of the options directed.” 2008 CCA LEXIS 6, at *5, 2008 WL

142112, at *2 (footnote omitted). As a result, the court in

Smead II again was faced with a situation in which “the

convening authority failed to comply with a material term of the

pretrial agreement.” 2008 CCA LEXIS 6, at *6-*7 n.4, 2008 WL

142112, at *2 n.4 (quoting Smead II, No. NMCCA 200201020, slip

op. at 1). The court in Smead III offered the following

description of its action in Smead II and the aftermath: “It

appears that after the findings and sentence of the appellant’s

original court-martial were set aside by us with authorization

for a rehearing, the Government elected to simply re-refer all

charges originally alleged against appellant, without regard for

38
United States v. Smead, No. 08-0376/MC

the prior dismissals ‘with prejudice.’” 2008 CCA LEXIS 6, at

*7, 2008 WL 142112, at *2.

The Court of Criminal Appeals concluded that the Government

failed to provide Appellant with the benefit of his original

bargain with the convening authority -- assignment to Miramar to

participate in the two-year treatment program; that specific

performance was no longer possible; and, in that context, his

original pleas were improvident. See 2008 CCA LEXIS 6, at *11,

2008 WL 142112, at *4. In that context, the court offered the

following description of the effect of its prior decisions:

Our earlier action of setting aside the
findings and sentence in this case had the
effect of returning both the Government and
the appellant to the status quo ante.
(Citing, inter alia, United States v.
Perron, 58 M.J. 78, 86 (C.A.A.F. 2003)) . .
. . Where [the] findings and sentence have
been set aside due to the Government’s
failure of performance on a material term of
the pretrial agreement, the status quo ante
is the position the parties were in prior to
entry into the original pretrial agreement.

2008 CCA LEXIS 6, at *13-*14, 2008 WL 142112, at *4. The court

described Smead I and its effect, as follows:

Accordingly, we hold that the prior
dismissal of charges ‘with prejudice’ under
the original pretrial agreement was rendered
void ab initio by our decision in Smead I,
leaving the Government free to re-refer all
offenses originally alleged against the
appellant.

39
United States v. Smead, No. 08-0376/MC

2008 CCA LEXIS 6, at *14, 2008 WL 142112 at *4. The court

concluded by providing the following description of the

relationship between Smead I and Smead II:

Because we previously held in Smead I that
the disputed term in the appellant’s
pretrial agreement was material, and that
the Government failed (albeit in good faith)
to deliver specific performance of that term
(or an agreed upon or adequate alternative),
our most appropriate remedy applying
contract principles was to set aside the
findings and sentence, returning the parties
to the status quo ante. This is what we did
in Smead II.

Accordingly, under the unique circumstances
existing in this case, the Government was
not precluded from re-referring the
allegation of rape against the appellant at
his second court-martial.

2008 CCA LEXIS 6, at *15-*16, 2008 WL 142112, at *5 (footnote

omitted).

II. DISCUSSION

Upon Appellant’s petition, we granted review of the

decision by the Court of Criminal Appeals in Smead III. The

issues on appeal concern the convening authority’s obligation

under the original pretrial agreement to withdraw and dismiss

certain charges with prejudice upon announcement of the

sentence, Appellant’s entry into a second pretrial agreement at

40
United States v. Smead, No. 08-0376/MC

the rehearing, and the voluntariness of Appellant’s guilty plea

at the rehearing.

A. REVIEW OF PLEAS AND PRETRIAL AGREEMENTS

A pretrial agreement in the military justice system

establishes a constitutional contract between the accused and

the convening authority. See United States v. Lundy, 63 M.J.

299, 301 (C.A.A.F. 2006). In a typical pretrial agreement, the

accused foregoes certain “constitutional rights . . . in

exchange for a reduction in sentence or other benefit. As a

result, when interpreting pretrial agreements, ‘contract

principles are outweighed by the Constitution’s Due Process

Clause protections for an accused.’ In a criminal context, the

government is bound to keep its constitutional promises . . .”

Id. (quoting United States v. Acevedo, 50 M.J. 169, 172

(C.A.A.F. 1999) (citations omitted)).

At trial, the military judge must ensure that the accused

understands the pretrial agreement, the parties agree to the

terms of the agreement, the agreement conforms to the

requirements of R.C.M. 705, and the accused has freely and

voluntarily entered into the agreement and waived constitutional

rights. See Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000);

R.C.M. 705; R.C.M. 910(f), (h)(2), (h)(3); Perron, 58 M.J. at

82.

41
United States v. Smead, No. 08-0376/MC

When an appellate issue concerns the meaning and effect of

a pretrial agreement, interpretation of the agreement is a

question of law, subject to review under a de novo standard.

Lundy, 63 M.J. at 301. When an appellant contends that the

government has not complied with a term of the agreement, the

issue of noncompliance is a mixed question of fact and law. Id.

The appellant bears the burden of establishing that the term is

material and that the circumstances establish governmental

noncompliance. Id. at 302. In the event of noncompliance with

a material term, we consider whether the error is susceptible to

remedy in the form of specific performance or in the form of

alternative relief agreeable to the appellant. Id. at 305. If

such a remedy does not cure the defect in a material term, the

plea must be withdrawn and the findings and sentence set aside.

See Perron, 58 M.J. at 85-86.

The present appeal, in its current posture, does not

involve a pending, unresolved issue of mutual misunderstanding

as to the terms of the agreement. See id. at 82-83. Assuming,

without deciding, that the parties at Appellant’s first court-

martial may not have focused on whether the convening authority

had exclusive power to order Appellant’s assignment to Miramar,

there was no misunderstanding as to the convening authority’s

power to request and obtain such an assignment, as reflected in

the subsequent, although belated, transfer to Miramar. See

42
United States v. Smead, No. 08-0376/MC

supra Part I.C. The belated request, with its negative impact

on Appellant’s ability to participate in the rehabilitation

program, as well as the failure to properly implement the

reduction in rank, both reflected unilateral errors on the part

of the Government with respect to its obligations under the

pretrial agreement. Moreover, the issue upon which the court

below granted relief in Smead II -- the defective implementation

of the reduction in rank -- involved a unilateral error

acknowledged by the Government, not a mutual mistake. See supra

Part I.B.-C. Accordingly, at this stage in the proceedings,

Appellant’s case does not involve a mutual misunderstanding by

the parties, but rather a failure of one party -- the Government

-- to fulfill its obligations under the pretrial agreement.

Before our Court, Appellant contends that the reinstatement

of the charges withdrawn with prejudice under his first pretrial

agreement, particularly the charge of rape, unfairly placed him

in an adverse position in terms of evidentiary and sentencing

considerations, compared to the situation that he would have

faced if the charges had not been revived. In Appellant’s view:

“These circumstances, which were caused by Government

misconduct, prejudiced Appellant’s substantial due process right

to not be punished for a successful appeal, and forced him to

enter into another pretrial agreement with the Government.”

Appellant adds that he “is not alleging that he was coerced or

43
United States v. Smead, No. 08-0376/MC

threatened into signing the pretrial agreement in the

traditional sense.” According to Appellant, “the circumstances

forced upon him by the reinstitution of the charges and the

military judge’s ruling unfairly prejudiced his due process

rights.”

As a remedy, Appellant requests that we set aside the

findings and sentence and return the case for further

proceedings, with instruction that the charges dismissed with

prejudice could not be reinstated, so that Appellant may

“negotiate with the Government without the threat of a

retaliatory rape conviction.” Appellant contends that this

would enable him “to freely and fairly negotiate with the

Government and decide whether or not to give up his right to

plead not guilty and accept a pretrial agreement.”

The Government contends that the Court of Criminal Appeals

correctly ruled that the charges could be revived after the

court set aside the findings and sentence in Smead II. The

Government further argues that even if the charges were not

properly reinstated, the revival of the dismissed charges did

not prejudice Appellant.

The Government’s brief -- for the first time in this

litigation –- also argues that the convening authority

improperly agreed to dismiss the withdrawn charges with

prejudice. According to the brief: “Nowhere is a convening

44
United States v. Smead, No. 08-0376/MC

authority authorized to characterize such withdrawal as with or

without prejudice, and any attempt to do so is a legal nullity.”

B. WITHDRAWAL AND DISMISSAL OF THE CHARGES WITH PREJUDICE

Under R.C.M. 705(a), “an accused and the convening

authority may enter into a pretrial agreement in accordance

with” the provisions of R.C.M. 705, “[s]ubject to such

limitations as the Secretary concerned may prescribe . . . .”

R.C.M. 705(b), entitled “Nature of agreement,” provides that a

pretrial agreement “may include” a variety of promises by the

accused and the convening authority pertinent to the present

appeal. The phrase “may include” reflects that the President

has not limited the nature of agreements under the Rule to the

items listed in R.C.M. 705(b). See 10 U.S.C. § 101(f) (2000)

(rules of construction) (providing in paragraph (2) that “‘may’

is used in a permissive sense” and in paragraph (4) that

“‘includes’ means ‘includes but is not limited to’”); R.C.M.

103(20) (incorporating the definitions in 10 U.S.C. § 101 into

the Rules for Courts-Martial).

Among the promises that may be made by an accused, the rule

includes: (1) a promise “to plead guilty to . . . one or more

charges and specifications,” and (2) a promise “to fulfill such

additional terms or conditions which may be included in the

agreement and which are not prohibited under this rule . . . .”

R.C.M. 705(b)(1).

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United States v. Smead, No. 08-0376/MC

Among the promises that may be made by a convening

authority, the rule includes: (1) a promise to “[w]ithdraw one

or more charges or specifications from the court-martial”; (2) a

promise to “[h]ave the trial counsel present no evidence as to

one or more specifications or portions thereof”; and (3) a

promise to “[t]ake specified action on the sentence adjudged by

the court-martial.” R.C.M. 705(b)(2)(C)-(E).

Under R.C.M. 705(c)(1) (“Prohibited terms or conditions”),

a term or condition “shall not be enforced”: (1) “if the

accused did not freely and voluntarily agree to it”; and (2) “if

it deprives the accused of . . . the right to due process” or

certain other expressly enumerated rights not at issue in the

present appeal. R.C.M. 705(c)(2) (“Permissible terms or

conditions”) adds that the prohibition on deprivation of certain

rights in subsection (c)(1) does not preclude a voluntary

agreement to: provide a stipulation of fact; testify in a

subsequent proceeding; provide restitution; conform conduct to

probation conditions through the period of any suspended

sentence; or waive procedural requirements with respect to an

investigation under Article 32, the composition of the court-

martial, or the personal appearance of sentencing witnesses.

The limitations of R.C.M. 705(c)(1) are the only express

limitations on terms of pretrial agreements under the rule.

46
United States v. Smead, No. 08-0376/MC

Other limitations may be provided under departmental

regulations. See R.C.M. 705(a).

The pertinent departmental regulation does not contain a

limitation relevant to the present appeal. See Dep’t. of the

Navy, Judge Advocate General Instr. 5800.7E, Manual of the Judge

Advocate General (JAGMAN) para. 0137 (Jun. 20, 2007). Likewise,

versions of the regulation in effect when the parties adopted

each of the pretrial agreements in the present case contained no

such limitation. See Dep’t. of the Navy, Judge Advocate General

Instr. 5800.7D, Manual of the Judge Advocate General (JAGMAN)

para. 0137 (Mar. 22, 2004); Dep’t. of the Navy, Judge Advocate

General Instr. 5800.7C, Manual of the Judge Advocate General

(JAGMAN) para. 0137 (Jul. 27, 1998).

The most recent version of the regulation sets forth a

sample format for pretrial agreements that addresses withdrawal

of charges, expressly recognizing the distinction between

withdrawal with prejudice and withdrawal without prejudice:

I understand and agree that, in return for
my plea(s) of guilty, and following the
military judge’s acceptance of my plea(s) as
set forth below, the Convening Authority
will withdraw the language and/or charges
and specifications to which I have pled not
guilty. After announcement of the
sentence by the military judge, the
withdrawn language and/or charges and
specifications will be dismissed by the
Convening Authority with/without prejudice.

47
United States v. Smead, No. 08-0376/MC

Dep’t. of the Navy, Judge Advocate General Instr. 5800.7E,

Manual of the Judge Advocate General (JAGMAN) App. A-1-h, ¶ 15

(Jun. 20, 2007).

In the present case, the parties entered into an agreement

before the initial trial under which the convening authority

agreed to withdraw and dismiss specified charges with prejudice

upon announcement of the sentence. The Government now argues

that the agreement at the initial trial to dismiss charges with

prejudice was a “legal nullity” on the theory that a convening

authority cannot enter into such an agreement.

The agreement before the initial trial and the agreement

before the rehearing both provided for dismissal of certain

charges with prejudice upon announcement of the sentence. In

that regard, we note that the direct issue before us in the

present appeal concerns the validity of the findings and

sentence approved by the convening authority after the

rehearing. The convening authority’s action on the results of

the rehearing was based on the second pretrial agreement -- an

agreement that contained a requirement similar to the term in

the initial pretrial agreement regarding dismissal of the

withdrawn charges with prejudice.

At oral argument, counsel for the Government acknowledged

that the Government’s argument -- challenging the validity of

the dismissal with prejudice provision in Appellant’s first

48
United States v. Smead, No. 08-0376/MC

pretrial agreement -- would also require us to invalidate the

parallel provision in the second pretrial agreement. We note

that the Government’s view -- that an agreement to dismiss

certain charges with prejudice term is a “legal nullity” --

would undermine a material term in the second plea agreement,

the agreement that supports the findings and sentence before us

in this appeal. As such, the Government’s view would call into

question the findings and sentence in the present case, and

might well invalidate the findings and sentence in numerous

other cases in which the parties have followed the model format

in the Navy’s regulations. See Perron, 58 M.J. at 85-86.

We reject the Government’s belated and novel argument that

the convening authority, acting on behalf of the Government,

acted impermissibly in approving the pretrial agreement and

dismissing the charges with prejudice. The Government’s

position is contrary to the example set forth in the Navy’s own

regulation, which provides a model pretrial agreement format

that expressly recognizes withdrawal and dismissal with

prejudice as a permissible term. See JAGMAN App. A-1-h, ¶ 15

(Jun. 20, 2007). Moreover, R.C.M. 705, which governs pretrial

agreements, is not a rule of exclusion. As noted at the outset

of this section, R.C.M. 705 provides broad authority as to the

terms that the parties “may include” in an agreement. Dismissal

49
United States v. Smead, No. 08-0376/MC

with prejudice as a term of a pretrial agreement does not come

within the few express prohibitions in the rule.

Further, the power of a convening authority to dismiss

withdrawn charges with prejudice is consistent with the powers

granted to convening authorities by Congress and the President

in the final disposition of charges. For example, a convening

authority may: (1) direct action resulting in a finding of not

guilty by entering into a pretrial agreement providing that the

prosecution will present no evidence on a charge under R.C.M.

705(b)(2)(D); (2) grant transactional immunity under R.C.M. 704

that precludes trial by court-martial of an immunized offense;

and (3) disapprove any finding by a court-martial and substitute

either a lesser included offense or a finding of not guilty

under Article 60(c)(3), UCMJ, 10 U.S.C. §860 (2000). In the

absence of limitations imposed by Congress or the President, we

decline to restrict the power of the convening authority to

dispose of withdrawn charges with prejudice as part of a

pretrial agreement.

C. REINSTATEMENT OF CHARGES AFTER WITHDRAWAL AND DISMISSAL WITH
PREJUDICE PURSUANT TO THE PRETRIAL AGREEMENT

The nonbinding Discussion accompanying R.C.M. 705(b)

provides the following guidance with respect to a pretrial

agreement providing for withdrawal of charges: “A convening

authority may withdraw certain specifications and/or charges

50
United States v. Smead, No. 08-0376/MC

from a court-martial and dismiss them if the accused fulfills

the accused’s promises in the agreement.” The Discussion also

provides that: (1) “such withdrawal . . . does not bar later

reinstitution of the charges by the same or a different

convening authority” except when jeopardy has attached; and (2)

“A judicial determination that the accused breached the pretrial

agreement is not required prior to reinstitution of withdrawn or

dismissed specifications and/or charges.” R.C.M. 705(b),

Discussion.

The Discussion provides the following additional guidance

for addressing a motion by the defense to dismiss reinstated

charges: “If the defense moves to dismiss the reinstituted

specifications and/or charges on the grounds that the government

remains bound by the terms of the pretrial agreement, the

government will be required to prove, by a preponderance of the

evidence, that the accused has breached the terms of the

pretrial agreement.” Neither the rule nor the Discussion

expressly addresses reinstatement of charges under an agreement

to withdraw and dismiss the affected charges “with prejudice.”

As a general matter, withdrawal of charges, by itself, does

not preclude reinstatement of the withdrawn charges in a

subsequent trial unless the withdrawal was for an improper

reason. R.C.M. 604(b). See Cook, 12 M.J. at 453-54 (discussing

51
United States v. Smead, No. 08-0376/MC

the predecessor version of the rule, para. 56, Manual for

Courts-Martial, United States (1969 rev. ed.)).

In Cook, our Court addressed the circumstances under which

charges withdrawn pursuant to a pretrial agreement could be

reinstated in a subsequent trial. The opinion first concluded

that former jeopardy prohibitions did not apply under the

circumstances of the case. Cook, 12 M.J. at 452-53 (noting that

the trial was before a military judge alone and that evidence

had not been introduced on the charge).

Cook next considered whether the withdrawal of charges had

been with prejudice. The opinion noted the practice in the

federal district courts of permitting withdrawal of charges

without prejudice to be reinstated when a guilty plea is

overturned on appeal. Id. at 454. Cf. 18 U.S.C. § 3296 (2002)

(current authority for reinstatement of charges). The opinion

observed that the “record of trial [in Cook] does not indicate

that withdrawal of the original larceny charge was to be with

prejudice to any future prosecutorial efforts to rejuvenate it.

Nor does withdrawal signify of itself that it was intended to be

with prejudice to the later reinstitution of prosecution.” Id.

In that regard, the opinion noted that the military judge at the

rehearing concluded that while the pretrial agreement did not

expressly address further action on the charges, the “spirit of

52
United States v. Smead, No. 08-0376/MC

that agreement” contemplated reinstatement. Id. at 451. The

opinion concluded:

In light of such practice [in the federal
district courts] of withdrawing charges
without prejudice and since we agree with
the military judge’s interpretation of the
intent of the parties in entering the
pretrial agreement, we conclude that
withdrawal of the larceny charges at Cook’s
first trial in return for his guilty plea to
concealment of the stolen goods did not, as
a matter of law, preclude renewal of the
prosecution on those charges after his plea
of guilty had been set aside as improvident
[on appeal] . . . .

Id. at 454.

Cook then turned to the question of whether reinstatement

was otherwise prohibited. The opinion observed that “an accused

should not be prejudiced by his good faith performance of his

plea bargain,” as when a key witness available at the first

trial is not available at the second trial. Id. (citation

omitted). The opinion also noted that reinstitution of

withdrawn charges would not be permitted when attributable to

prosecutorial vindictiveness. Id. at 454-55. In Cook, neither

factor was present. Cook viewed the pretrial agreement as a

routine bargain between an accused and a convening authority, in

which each was entitled to receive an expected benefit. Id. at

455. When the plea was invalidated upon appeal, the government

lost the benefit of the accused’s plea of guilty to the larceny

offense. In that context, the accused was not entitled to the

53
United States v. Smead, No. 08-0376/MC

windfall of escaping accountability for the charged offenses, a

result that was not “contemplated by the parties when they

entered into the pretrial agreement.” Id.

The present case involves the distinguishing circumstances

expressly identified in Cook. Here, the parties expressly

stated in the pretrial agreement that the withdrawal of certain

charges would result in dismissal with prejudice, and the record

of trial is replete with references to withdrawal with

prejudice.

The Court of Criminal Appeals in Smead III cited two

reasons for not applying the distinction drawn in Cook between

dismissals with and without prejudice. Smead III, 2008 CCA

LEXIS 6, at *14-*16, 2008 WL 142112, at *5. First, the court

stated without further explanation that it was “not convinced

that the dicta from Chief Judge Everett in the 1982 Cook case is

an accurate representation of the law in this area as it exists

today.” 2008 CCA LEXIS 6, at *15, 2008 WL 142112, at *5. The

court did not identify any contemporaneous source of law

providing that when the parties agree to dismissal upon

announcement of sentence, inclusion of the requirement to

dismiss “with prejudice” has no bearing on whether the charges

may be revived at a later time. Id.

Second, the court distinguished Cook on the grounds that

the plea in Cook was rejected on appeal because it was

54
United States v. Smead, No. 08-0376/MC

“factually improvident,” whereas the reversal in Smead II served

to return “the parties to the status quo ante” as an

“appropriate remedy” because “the Government failed (albeit in

good faith) to deliver specific performance of that term (or an

agreed upon or adequate alternative).” 2008 CCA LEXIS 6, at

*15-*16, 2008 WL 142112, at *5. In the context of enforcement

of a provision requiring dismissal with prejudice upon

announcement of the sentence, the court did not explain why

returning the parties to the status quo ante in a factually

improvident plea case was different from doing so in a material

breach case. See 2008 CCA LEXIS 6, at *14-*16, 2008 WL 142112,

at *5.

The Government offers the following description of the

lower court’s analysis: “Because the parties did not agree on

alternative relief, and there was no other way of curing the

breach, the lower court properly nullified the pretrial

agreement in accordance with this Court’s case law.” The lower

court cited our decision in Perron in support of the proposition

that its “earlier action of setting aside the findings and

sentence in this case had the effect of returning both the

Government and the Appellant to the status quo ante.” 2008 CCA

LEXIS 6, at *13, 2008 WL 142112, at *4 (citing Perron, 58 M.J.

at 86). Our case law allows a reviewing court to cure a

government breach of a pretrial agreement in several ways:

55
United States v. Smead, No. 08-0376/MC

requiring specific performance of the initial pretrial

agreement, providing the appellant with alternative relief,

providing an adequate remedy to cure the breach, or allowing

withdrawal of the pleas. Perron, 58 M.J. at 83-86. In Perron,

we noted that if neither specific performance nor another

adequate remedy is available, and “if the parties cannot agree

on alternative relief . . . the result is to nullify the

original pretrial agreement, returning the parties to the status

quo ante.” Perron, 58 M.J. at 86.

The record does not support either the Government’s or the

lower court’s characterization of Smead II as returning the

parties to the status quo ante under our case law. In Smead II,

the court based its decision on the failure of the Government to

comply with the pretrial agreement term involving the effective

date of reduction in rank. See Smead II, No. NMCCA 200201020,

slip op. at 1. The court in Smead II did not rely on, and the

Government in the present appeal has not identified, anything in

the record demonstrating that the Government after Smead I

engaged Appellant in discussions on alternative relief. See id.

Likewise, neither the court below nor the Government has

demonstrated that there was “no other way of curing the breach,”

or that the court in Smead II provided the parties with the

opportunity to consider permissible options under our case law.

The Government’s characterization overlooks the Government’s own

56
United States v. Smead, No. 08-0376/MC

request in Smead II that the court allow the Government to

provide Appellant with the opportunity to consider specific

performance or alternative relief. The court in Smead II did

not provide that opportunity, but instead remanded the case for

a rehearing. See id.

We note that R.C.M. 705(d)(4)(B) permits the convening

authority to withdraw from a pretrial agreement “if findings are

set aside because a plea of guilty entered pursuant to the

agreement is held improvident on appellate review.” This

provision was not relied upon by the court below, and has not

been cited by the Government in the present appeal.

The rule establishes a two-part test in which the decision

of the appellate court must: (1) set aside findings; and (2) do

so because the plea was improvident. Neither Smead I nor Smead

II qualified as grounds for withdrawal from the pretrial

agreement under the two-part test. In Smead I, the court did

not set aside the findings. Smead I, 60 M.J. at 758. In that

posture, the court’s action did not provide a basis for

withdrawal from the pretrial agreement under the first part of

the test under the rule. Smead II, which set aside the

findings, did not set forth a holding on the second part of the

test -- improvidence of the plea. Smead II, No. NMCCA

200201020. In Smead II, the court did not rely on the

providence ruling in Smead I regarding Miramar, but instead

57
United States v. Smead, No. 08-0376/MC

focused on the court’s separate ruling in Smead I regarding

reduction in rank, which was not addressed as a providence issue

in Smead I. Id. (citing Perron, 58 M.J. at 86); Smead I, 60

M.J. at 757-58. See supra Part I.B.-C. The court in Smead II

identified the failure to implement the reduction in rank as a

material breach, citing Perron, but did not express a conclusion

as to whether that rendered Appellant’s plea improvident with

respect to the reduction in rank. Smead II, No. NMCCA 200201020

(citing Perron, 58 M.J. at 86). In view of the Government’s

failure to implement the court’s direction with respect to the

remand in Smead I, and pursuant to the court’s broad remedial

authority under Article 66(c), UCMJ, 10 U.S.C. § 866 (2000), the

court was not required to reach a conclusion on providence as

the basis for setting aside the findings following the

Government’s noncompliance with its Smead I order. In that

regard, it is not surprising that neither the court below nor

the Government in the present appeal relied on R.C.M.

705(d)(4)(B) as authority for the convening authority to

withdraw from the pretrial agreement. In light of Smead I, and

in the absence of an express holding on providence in Smead II,

we decline to read Smead II as a decision in which the findings

were set aside “because a plea of guilty entered pursuant to the

agreement is held improvident on appellate review.” R.C.M.

705(d)(4)(B). We also note that although the parties included

58
United States v. Smead, No. 08-0376/MC

in the initial pretrial agreement detailed provisions regarding

cancellation of the agreement and the relative rights of the

parties to withdraw from the agreement, the parties did not

include in the agreement a provision that would permit

reinstatement of the charges that had been dismissed with

prejudice upon announcement of the sentence.

Smead II, a somewhat cryptic decision, does not expressly

address the issue of providence of the plea, nor does it explain

why the court ordered a remand without giving the parties -- and

Appellant in particular -- an opportunity to consider and decide

whether to pursue specific performance, alternative relief, or

withdrawal of the pleas. See id. In that context, we decline

to treat Smead II as returning the parties to the position that

they occupied before entering into the pretrial agreement.

In the present case, the Government failed to implement the

pretrial agreement and compounded the problem by failing to

implement the direction of the court below on remand. The

Government did not negotiate an agreement that provided for

withdrawal from the pretrial agreement under the conditions of

the present case, nor did it ask the court below in Smead I or

Smead II to address the consequences of the convening

authority’s decision to dismiss the charges with prejudice. The

Government, however, now wishes to benefit from its errors by

asking us to broadly interpret the agreement as authorizing the

59
United States v. Smead, No. 08-0376/MC

convening authority to reinstate charges that were dismissed

with prejudice. Under the unique circumstances of this case, we

find that nothing in the applicable statutes, rules, or pretrial

agreement required the court below to treat the agreement to

dismiss charges with prejudice upon announcement of the sentence

as a mere temporary disposition of the affected charges subject

to revival at a rehearing. Accordingly, we conclude that the

military judge at the rehearing, and the court below, erred in

holding that the convening authority could revive at the

rehearing the charges that had been dismissed with prejudice

upon announcement of the sentence at Appellant’s first court-

martial.

D. VOLUNTARINESS OF APPELLANT’S PLEA AT THE REHEARING

Although we find that the military judge, and the court

below, erred in concluding that the charges dismissed with

prejudice could be reinstated at the rehearing, we find that

Appellant suffered no prejudice from this error. See Article

59(a), UCMJ, 10 U.S.C. § 859 (2000) (“A finding or sentence of a

court-martial may not be held incorrect on the ground of an

error of law unless the error materially prejudices the

substantial rights of the accused.”)

First, Appellant was not prejudiced by the erroneous

revival with respect to any impact on the rape charge and the

other dismissed charges. As noted in Part II.B., we have

60
United States v. Smead, No. 08-0376/MC

concluded that the convening authority properly dismissed those

charges with prejudice at the rehearing. As a result, the error

in reviving the charges is harmless with respect to the

dismissed charges.

The remaining question involves the effect of the revived

charges on the voluntariness of Appellant’s plea at the

rehearing. Appellant claims that reinstatement of the rape

charge “tended to coerce the Appellant into a pretrial agreement

beneficial to the Government.” “Where a plea is not knowing and

voluntary, ‘it has been obtained in violation of due process and

is therefore void.’” Perron, 58 M.J. at 81 (quoting McCarthy v.

United States, 394 U.S. 459, 466 (1969)). “The military judge

shall not accept a plea of guilty without first . . .

determining that the plea is voluntary . . .” R.C.M. 910(d).

We review a military judge’s acceptance of a plea for abuse of

discretion, and we apply “the substantial basis test, looking at

whether there is something in the record of trial, with regard

to the factual basis or the law, that would raise a substantial

question regarding the appellant’s guilty plea.” United States

v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).

In Appellant’s case, the record does not raise a

substantial question regarding the voluntariness of Appellant’s

plea. At the rehearing, the defense offered a variety of

objections to reinstatement of the dismissed charges but did not

61
United States v. Smead, No. 08-0376/MC

assert that revival of the charges would compromise Appellant’s

ability to make a voluntary decision with respect to pleas or a

plea agreement. After the military judge ruled that the

dismissed charges could be reinstated, the parties entered into

a new pretrial agreement that again provided that Appellant

would plead guilty to some charges and not guilty to others and

that the convening authority would withdraw and dismiss with

prejudice the charges to which Appellant pled not guilty. The

parties agreed on a confinement reduction of thirty-six months,

as compared to the corresponding term in the first pretrial

agreement -- a reduction similar to the thirty-three months of

confinement reduction requested by Appellant in the Smead II

proceedings. Appellant’s signed pretrial agreement provided

that it was freely and voluntarily entered.

During the providence inquiry, Appellant told the military

judge that he had voluntarily entered into the plea agreement.

The record of trial contains no direct or indirect statement by

Appellant or counsel that would demonstrate that Appellant was

improperly coerced into making the agreement or pleading guilty

by the revival of the previously dismissed charges or by any

other circumstance of the rehearing. Likewise, in the post-

trial proceedings before the convening authority, Appellant

emphasized his admission of guilt and raised no issues

62
United States v. Smead, No. 08-0376/MC

concerning the voluntariness of his pleas or the validity of the

plea agreement.

Appellant now contends that the reinstatement of charges

created a set of circumstances that forced him to enter into a

pretrial agreement and plead guilty. Appellant has not provided

a persuasive explanation for the inconsistency between his

present litigation posture and his responses during the plea

inquiry regarding the voluntariness of his pleas, his failure to

raise these concerns at the rehearing, and the repeated

references to his guilt in the post-trial submissions.

Likewise, he offers no explanation as to why his pretrial

agreement at the rehearing for a thirty-six month reduction in

unsuspended confinement should be viewed as involuntary when he

specifically requested a similar reduction of thirty-three

months unsuspended confinement as a remedy during the Smead II

proceedings. In his declaration, submitted one year and two

months after his pleas at the rehearing, Appellant states that

“[b]ut for the Government’s obligation to withdraw and dismiss

the rape charge, I do not believe I would have entered into this

pretrial agreement.” Whatever retrospective remorse Appellant

may have felt about entering into a second pretrial agreement,

that does not establish that his pleas were involuntary at the

time of the rehearing in view of the circumstances of this case.

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United States v. Smead, No. 08-0376/MC

The record does not raise a substantial question regarding

the voluntariness of Appellant’s pleas, and Appellant has

demonstrated no other prejudice to his substantial rights from

the erroneous reinstatement of charges dismissed with prejudice

at his rehearing. See Article 59(a), UCMJ. The rape charge and

other charges to which Appellant pled not guilty were again

withdrawn with prejudice at the rehearing, and Appellant’s

second pretrial agreement contained generally more favorable

terms -- thirty-six months less confinement and an agreement to

plead guilty to one less specification of child pornography

possession -- than his original pretrial agreement.

III. CONCLUSION

For the foregoing reasons, the decision of the United

States Navy-Marine Corps Court of Criminal Appeals affirming the

approved findings and sentence is affirmed.

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United States v. Smead, No. 08-0376/MC

RYAN, J., with whom ERDMANN, J., joins (concurring in the

judgment):

I agree with the majority that the convening authority,

acting on behalf of the Government, has the power to dismiss

charges with prejudice. United States v. Smead, __ M.J. __ (50-

51) (C.A.A.F. 2009). In the context of the pretrial agreement

(PTA) from Appellant’s first court-martial, the convening

authority’s promise to dismiss the charges with prejudice was a

material term of a legally binding and enforceable contract

between Appellant and the Government. Contrary to the

Government’s argument, it was not a “legal nullity” -- so long

as the PTA remained in effect, the Government had no right to

refile the charges “dismissed with prejudice” against Appellant.

I write separately because I disagree that the United States

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

held that its “‘earlier action of setting aside the findings and

the sentence in this case had the effect of returning both the

Government and the Appellant to the status quo ante.’” Id. at

__ (55) (quoting United States v. Smead (Smead III), No. NMCCA

200201020, 2008 CCA LEXIS 6, at *13, 2008 WL 142112, at *4 (N-M.

Ct. Crim. App. Jan. 10, 2008) (unpublished)).1

1
Like the majority, I refer to the lower court’s first opinion
in this case as Smead I (United States v. Smead, 60 M.J. 755
(N-M. Ct. Crim. App. 2004), to its second opinion as Smead II
United States v. Smead, No. 08-0376/MC

I.

Prior to Appellant’s first court-martial, he entered into a

PTA with the Government in which the Government agreed, inter

alia: (1) to confine Appellant at the Marine Corps Air Station

(MCAS) Miramar brig so that Appellant could complete a two-year

sexual offender rehabilitation program; and (2) to defer

automatic reduction of Appellant’s pay grade. Memorandum of

Pretrial Agreement at 5, 7-8, United States v. Smead (Sierra

Judicial Circuit Dec. 7, 2001). Although Appellant was

initially confined at the MCAS Miramar brig, he was transferred

to the disciplinary barracks at Fort Leavenworth, Kansas, before

he could begin the rehabilitation program, and the convening

authority reduced Appellant to pay grade E-1 fourteen days after

his court-martial.

Having been denied these benefits of his bargain, Appellant

appealed to the CCA arguing that the denial rendered his guilty

pleas improvident. Brief and Assignment of Errors at 6-8, Smead

I, No. NMCCA 200201020 (Feb. 27, 2004). Regarding the

confinement issue, the CCA agreed that the term in the PTA

requiring the Government to confine Appellant at the MCAS

Miramar brig was material and that the Government had failed to

(United States v. Smead, No. NMCCA 200201020 (N-M. Ct. Crim.
App. June 22, 2005) (per curiam) (unpublished)), and to its
third opinion as Smead III.

2
United States v. Smead, No. 08-0376/MC

comply with that term. Smead I, 60 M.J. at 757. In its

opinion, the CCA noted that although Appellant was “transferred

pursuant to regulations that overrode the [convening

authority’s] authority to direct the place of confinement,”

neither Appellant nor the Government appeared to be aware of or

to understand those regulations at the time they entered into

the PTA. Id. The CCA remanded the case to the convening

authority for remedial action in the form of either: (1)

specific performance of the Government’s obligations under the

PTA; (2) alternative relief to the satisfaction of Appellant; or

(3) the opportunity for Appellant to withdraw his guilty pleas.

Id. at 757-58. The CCA also accepted the Government’s

concession that the convening authority erred in regard to

Appellant’s pay and ordered the convening authority to rectify

the error. Smead I, 60 M.J. at 758.

The record contains evidence that the Government attempted

to comply with the CCA’s order regarding confinement at the MCAS

Miramar brig.2 But efforts to provide specific performance with

2
In December 2004, four months after the CCA’s ruling in
Smead I, the head of the Corrections Section, Headquarters,
United States Marine Corps, requested that Appellant be
transferred from the disciplinary barracks at Fort Leavenworth
back to the MCAS Miramar brig and that he be enrolled in the
next sex offender rehabilitation program. Appellant was so
transferred in February 2005, but there is no evidence in the
record that he was enrolled in, or was even eligible for, the
rehabilitation program.

3
United States v. Smead, No. 08-0376/MC

respect to that term of the PTA were rendered moot, vis-à-vis

complying with the CCA’s order, by the Government’s simultaneous

failure to address the pay issue. In a brief filed eight months

after the CCA’s ruling in Smead I, the Government conceded that

despite the CCA’s order, the convening authority had failed to

rectify its previous error with respect to Appellant’s pay. In

light of the Government’s failures, the CCA allowed Appellant to

withdraw from his pleas, set aside the findings and the

sentence, and remanded to a convening authority for a rehearing.

Smead II, No. NMCCA 200201020 at 1.

II.

The actions by the CCA are consistent with both the record

of trial and the precedent of this Court. In contrast, while

the result the majority seeks to reach is clear, neither the

holding of the majority opinion nor the reasoning underlying

that result is remotely apparent.

In the event of a misunderstanding as to a material term in

a pretrial agreement, this Court provides three possible

remedies: (1) specific performance of the agreement; (2)

alternative relief to the satisfaction of the accused; or (3) an

opportunity for the accused to withdraw from the plea. United

States v. Smith, 56 M.J. 271, 273 (C.A.A.F. 2002). “[I]f the

parties cannot agree on alternative relief, and specific

performance is not available, the result is to nullify the

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United States v. Smead, No. 08-0376/MC

original pretrial agreement, returning the parties to the status

quo ante.” United States v. Perron, 58 M.J. 78, 87 (C.A.A.F.

2003).

In Smead I, Appellant argued that his guilty pleas were

improvident because the Government had denied him the benefits

for which he had bargained in the PTA. Brief and Assignment of

Errors at 6-8, Smead I, No. NMCCA 200201020 (Feb. 27, 2004); see

United States v. Mitchell, 50 M.J. 79, 82 (C.A.A.F. 1999) (“[I]f

appellant did not receive the benefit of the bargained-for

pretrial agreement, the pleas would be treated as improvident,

the findings would be set aside, and he would be subject to

retrial.”). The CCA agreed, but because there had been “‘a

misunderstanding as to a material term in a pretrial

agreement,’” the CCA remanded to the convening authority to

provide the Government an opportunity to provide specific

performance or alternative relief. Smead I, 60 M.J. at 756-57

(quoting Smith, 56 M.J. at 273).

The convening authority failed to provide either. By the

time the CCA ruled again in Smead II, nine months after the

CCA’s ruling in Smead I and forty-two months after Appellant’s

court-martial, the Government had neither enrolled Appellant in

MCAS Miramar’s sexual offender program nor corrected the

deficiency in Appellant’s pay. Although the Government might

have eventually corrected those errors, no evidence suggests

5
United States v. Smead, No. 08-0376/MC

that the Government had specifically performed its obligations

under the PTA by the time the case returned to the CCA.

Likewise, there is no evidence that Appellant had legally

accepted alternative relief.3 See Smith, 56 M.J. at 279

(requiring the accused to make a knowing, voluntary,

intelligent, and written waiver of his rights to contest the

providence of his pleas prior to accepting alternative relief

when there has been a mutual misunderstanding as to a material

term of a PTA).

Because the Government had neither specifically performed

nor provided Appellant with alternative relief, the CCA imposed

the only remaining remedy: it permitted Appellant to withdraw

his guilty pleas. The CCA’s decision in Smead II set aside the

findings and sentence and remanded the case for a rehearing,

thereby nullifying the PTA and returning the parties to the

status quo ante.4 See Perron, 58 M.J. at 86 (“[I]f the parties

3
The majority implies, without citation to any authority, that
because there is no evidence in the record that the Government
engaged Appellant in alternative relief discussions and because
the Government failed to demonstrate that there was “no other
way of curing the breach,” the CCA did not have the authority to
nullify the pretrial agreement. Smead, __ M.J. at __ (56-57).
But neither an appellate court nor the convening authority may
impose alternative relief on an unwilling appellant. Perron, 58
M.J. at 86, 86 n.8. This lack of evidence only supports the
conclusion that the parties could not agree on alternative
relief, which is all that Perron requires. Id. at 86.
4
Despite acknowledging that in Smead I the CCA “agreed with
Appellant’s contention that his plea was improvident because the
6
United States v. Smead, No. 08-0376/MC

cannot agree on alternative relief, and specific performance is

not available, the result is to nullify the original pretrial

agreement, returning the parties to the status quo ante.”). It

follows, therefore, that the “dismissal of charges ‘with

prejudice’ under the original pretrial agreement was rendered

void ab initio by [the CCA’s] decision in Smead I, leaving the

Government free to re-refer all offenses originally alleged

against the appellant.” Smead III, 2008 CCA LEXIS 6, at *14,

2008 WL 142112, at *4. It is for that reason that we should

affirm the decision of the lower court.

III.

I respectfully concur in the judgment.

Government breached a material term of the pretrial agreement,”
Smead, __ M.J. at __ (14), the majority declines “to read
Smead II as a decision in which the findings were set aside
‘because a plea of guilty entered pursuant to the agreement is
held improvident on appellate review.’” Id. at __ (58) (quoting
R.C.M. 705(d)(4)(B)). The majority offers no alternative theory
of law -- contract or otherwise -- to support its conclusion
that in Smead II the CCA allowed Appellant to withdraw his pleas
without simultaneously releasing the Government from its
obligations under the PTA.

7