(dissenting):
I dissent.
•At the outset, I note that my views concerning the negotiated guilty plea program coincide with those of the Chief Judge. Too many records come before us with multiplicious charges, inconsistencies between the plea and accused’s statements, and minimal presentation of matters in extenuation and mitigation to merit the conclusion that the program is entirely advantageous. Indeed, this case reflects one of the evils arising from that very arrangement.
As I understand the rationale of my brothers, we determine the providence of guilty pleas in accordance with the provisions of Uniform Code of Military Justice, Article 45, 10 USC § 845. Hence, the plea must be set aside if the record supports the conclusion that it was improvident, involuntary, or contains inconsistent statements or actions by the accused. With this proposition, I unreservedly agree. United States v Epperson, 10 USCMA 582, 28 CMR 148; United States v Lemieux, 10 USCMA 10, 27 CMR 84; Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 1053-1055. Nevertheless, I believe they read the record too narrowly when they conclude that this accused did not, contrary to his plea, assert that the idea of bribery was implanted in his mind by military police officials.
Tried by general court-martial convened by the Commanding General, 82d Airborne Division, Fort Bragg, North Carolina, the accused pleaded guilty to larceny of $116.00, in violation of Code, supra, Article 121, 10 USC § 921, and two specifications of offering bribes to military police investigators, in violation of Code, supra, Article 134, 10 USC § 934.
After delivering to the accused the formula advice concerning the meaning and effect-of his plea, the law officer, Colonel Robert P. Pike, convened an out-of-court hearing in order to inquire into the providence of the pleas of guilty. It there transpired that accused’s pleas were entered pursuant to a pretrial agreement with the convening authority concerning the sentence which he would approve. Accused admitted that he was in fact guilty of larceny. The following statements were made, however, with respect to the charges of offering bribes:
“LO: But did you promise $300.00 to Richards if he dropped this investigation of the charge?
“ACCUSED: Well, sir, first he asked me what it would be worth to get me out of trouble so I told him. So he went and got Specialist Downs, the desk sergeant. So he came back and said how much would I give him, he asked me how much I would give him ... I mean, as he was on duty, and I told him, well, I’d give him $100.00. So he asked me how soon I would have it and I told him about the middle of August.
“LO: Are you talking about the desk sergeant, now?
“ACCUSED: The desk sergeant and the CID.
“LO: Well, who brought up the subject first?
“ACCUSED: The CID agent, sir.
“LO: Will you tell me just what happened when the CID agent brought it up, when the thing was first mentioned?
“ACCUSED: Well, I was sitting up there after I was brought back to-the desk and he asked me how much amount of money is it worth to you to-get out of trouble, and I told him that I didn’t have but $400.00, and he-asked me how much I would be willing to give to him, and I told him, ‘$300.00,’ so he said, ‘Well, the desk sergeant knew about it so you’ll have-to give him something too because-he knows about it,’ and he told me to-go and get him, so I got him and sat *618down and he asked me again. I told him I’d give him 100 and I’d give the CID agent 300, so then he told me that he had another charge on me, that is, on me. He said he had another charge against me because I tried to bribe him.
"LO: Well, who first mentioned the subject of getting out of trouble?
“ACCUSED: The CID agent.
“LO: Did you, in any way, suggest to him first that yoti might be willing to pay him a little something?
“ACCUSED: No, sir.
“LO: Well, did you have any idea before Richards mentioned this that you might be able to give him some money to get the case dropped?
“ACCUSED: No, sir, I didn’t have any idea.
“LO: Well, now, I’m wondering about this plea with respect to Specification 1 and 2 here, Captain Robinson. In view of the fact and on the basis of what Watkins tells me that it was Richards who first suggested this bribe without any mention or suggestion on Watkins’ part, the •question of entrapment comes to mind immediately, and I am very doubtful as to whether this plea is provident as to Charge II and both of its Specifications.
“DC: Let me talk to the accused for a minute, sir.
“LO: Very well. You want to talk to him in private?
“DC: Yes, sir.” [Emphasis partially supplied.]
Thereafter, the appointed defense counsel consulted with the accused. Following that conference, the law officer again questioned the accused concerning the circumstances surrounding the alleged offers of bribes. The accused reiterated his previous answers. The law officer then declared:
“Well, I’ll state to the trial counsel that the defense counsel at this time, that on the basis of what the accused has told me, in the absence of any further showing, I would not accept the plea of guilty to Specifications 1 and 2 of Charge II, and, of course, I will also point out that that action would necessarily void the agreement with the convening authority which has been marked Appellate Exhibit Number 1, and if the trial proceeds it would be a question of what sentence the court would impose. I might also say that the ac-cussed should understand clearly that he would also have the opportunity to withdraw the plea of guilty to the Specification and Charge I unless he persisted in his plea of guilty to Charge I also.
“DC: Sir, we would like to state for the record that it is a question of fact that would have to be determined; however, after having talked with the accused there is a possible defense of entrapment; however, as defense counsel, I do not believe it could be successfully pursued. Having talked with the accused, his plea still stands guilty as to all charges.
“LO: Will you tell me how you feel about the statement that Captain Robinson has just made?
“ACCUSED: I like that statement. It’s O.K.” [Emphasis supplied.]
The accused persisted in his pleas of guilty as he did not wish to “take a chance on having this question decided” against him. He stated that he understood his plea had the effect of admitting he offered bribes to the military investigators, but that his best interests would be served by its entry. It was motivated by the conclusion that the court members would discount his assertions in the face of expected contrary testimony by the policemen.
Following the foregoing discussion, the law officer accepted the accused’s pleas of guilty, and the court-martial proceeded to findings without the presentation of any evidence other than a stipulation of fact in which it was set forth that the accused had promised the investigators stated sums in return for his freedom. Following a brief statement in mitigation and extenuation by accused’s counsel, the court-martial re*619tired to consider the question of appropriate penalty. It returned a sentence to dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for five years, and reduction to the lowest enlisted grade. Pursuant to the pretrial agreement, the convening authority approved only so much of the sentence as provided for dishonorable discharge, forfeiture of all pay and allowances, confinement at hard labor for two years, and reduction to the lowest enlisted grade. The board of review aífirmed, and we granted review on the issue of the providence of accused’s pleas of guilty to the bribery charges.
Code, supra, Article 45,10 USC § 845, provides:
“(a) If an accused arraigned before a court-martial makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.” [Emphasis supplied.]
During the hearings before the House Armed Services Committee on the then proposed Uniform Code of Military Justice, alarm was expressed concerning whether guilty pleas would be obtained unfairly from military defendants. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, pages 1053-1055. Mr. Felix Larkin, General Counsel, Department of Defense, explained to the Committee that Code, supra, Article 45, was designed to obviate that possibility. Thus, he declared:
“In addition to that we feel that the meaning and the effect of the plea of guilty which he proposes to take should be explained to him and that explanation should consist of a statement telling him that the plea amounts to an admission that he committed the crime that is charged against him, that it makes conviction mandatory, and that he should be told the sentence which can be imposed upon him if he admits doing the acts which are charged against him.
“If he refuses, if he does not want to take the plea under those circumstances, or if he wants to make the plea and will not conform to those circumstances which are to make sure that he understands what he is doing, then, the plea should not be accepted.
“We feel that it is a procedure which will give an added amount of protection to the innumerable cases where pleas of guilty are taken, particularly among the younger men.” [House Hearings, supra, page 1054.] [Emphasis supplied.]
In addition to the foregoing, both the House and Senate Armed Services Committees made crystal clear in their reports the conditions under which guilty pleas should be accepted in trials by court-martial. House Eeport No. 491, 81st Congress, 1st Session, page 23; Senate Report No. 486, 81st Congress, 1st Session, page 20. The language of the House Report, identical to that utilized by the Senate Committee, is as follows:
“The provisions of this article will be supplemented by regulations issued by the President. It is contemplated that the recommendations of the Keeffe Board as to the procedure to be followed by a court martial when a plea of guilty is entered will be adopted. The proposed procedure is as follows (see Keeffe report, p. 142) :
“(1) In general and special court-martial cases, the plea should be received only after the accused has had an opportunity to consult with counsel appointed for or selected by him. If the accused has refused counsel, the plea should not be received.
“(2) In every case the meaning and effect of a plea of guilty should be explained to the accused (by the law officer of a general court martial; by the president of a special court martial; by the summary court), such explanation to include the following:
*620“(a) That the plea admits the offense as charged (or in a lesser degree, if so pleaded) and makes conviction mandatory.
“(b) The sentence which may be imposed.
“(c) That unless the accused admits doing the acts charged, a plea of guilty will not be accepted.” [House Report, supra, page 24.]
In accordance with the expressed intent of Congress, the President promulgated regulations governing the acceptance of guilty pleas. Manual for Courts-Martial, United States, 1951, paragraph 70. Of particular pertinence to this case is the statement in Manual, supra, paragraph 706, to the effect that:
“Whenever an accused, in the course of trial following a plea of guilty, makes a statement to the court, in his testimony or otherwise, inconsistent with the plea, the court will make such explanation and statement as the occasion requires. If, after such explanation and statement, it appears to the court that the accused in fact entered the plea improvidently or through lack of understanding of its meaning and effect, or if the accused does not voluntarily withdraw his inconsistent statement, the court will proceed to trial and ■judgment as if he had pleaded not guilty.” [Emphasis supplied.]
.'Similarly, this Court has consistently adhered to the rule that post-plea statements inconsistent with the accused’s judicial confession of guilt require that his plea be rejected. United States v Epperson, 10 USCMA 582, 28 CMR 148; United States v Lemieux, 10 USCMA 10, 27 CMR 84; United States v Lenton, 8 USCMA 690, 25 CMR 194; United States v Welker, 8 USCMA 647, 25 CMR 151; United States v Kitchen, 5 USCMA 541, 18 CMR 165; United States v Messenger, 2 USCMA 21, 6 CMR 21. Our view of the procedure to be followed when the accused seeks to maintain at the trial a position inconsistent with bis plea is not at all different from the ■standard by which providence is measured in the United States courts. Judge Latimer points out that the rule there is set forth in Rule 11, Federal Rules of Criminal procedure, but the inquiry of a United States judge is not limited merely to discretionary consideration of the voluntariness of the plea. Rule 11, supra, provides:
“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.” [Emphasis supplied.]
The whole purpose of the Rule is to establish that the defendant is pleading guilty because he is in fact guilty. Shelton v United States, 242 F2d 101, 246 F2d 571 (CA 5th Cir) (1957), reversed on concession of error by Government, 356 US 26, 2 L ed 2d 579, 78 S Ct 563; Julian v United States, 236 F2d 155 (CA 6th Cir) (1956); Edwards v United States, 256 F2d 707 (CA DC Cir) (1958); Fogus v United States, 34 F2d 97 (CA 4th Cir) (1929). In Edwards v United States, supra, Circuit Judge Burger pointed out, at page 710:
“. . . It may be argued that a plea of guilty is not understandingly made when defendant is unaware of certain technical defenses which might very well make the prosecutor’s job more difficult or even impossible were he put to his proof. However, we think ‘understandingly’ refers merely to the meaning of the charge, and what acts amount to being guilty of the charge, and the consequences of pleading guilty thereto, rather than to dilatory or evidentiary defenses.”
And the rule was set forth in Fogus v United States, supra, at page 98, as follows:
“In the case of Nicely v Butcher, 81 W Va 247, 94 SE 147, the Supreme Court of West Virginia said: ‘Before receiving a plea of guilty in a criminal ease, the court should see that it is made by a person of competent intelligence, freely and volun*621tarily, and with a full understanding of its nature and effect, and of the facts on %ohich it is founded.’
“We think this correctly states the rule, and at the conclusion of the hearing on the petitions, the judge below held that this rule had been strictly complied with.” [Emphasis supplied.]
From the foregoing, I can only conclude that Congress intended courts-martial to be governed by the rule applicable in the Federal courts and set forth both in the Code and the Manual. Manual for Courts-Martial, supra, paragraph 70; House Report, supra, page 1054. That requires a determination by the law officer concerning whether accused’s plea is voluntarily entered and whether he in fact admits his guilt. Apprehensive of the forces which might bear upon a military accused and induce him to plead guilty, our legislative branch has, in effect, demanded that he make a truly judicial confession when questioned concerning the formal answer which he has made to the charges against him.
This case illustrates the wisdom of that Congressional command. The accused, although advised of their effect by the law officer and counsel, repeatedly stated the existence of facts, which, if believed, constituted a complete defense to the charges of bribery placed against him. United States v McGlenn, 8 USCMA 286, 24 CMR 96. His continued protestations brought forth only an admonition from the law officer that, if he did not plead guilty, the limitation placed on the sentence by his pretrial agreement would be voided. Faced with that consequence, the accused persisted in his plea, maintaining at the. same time that it was entered only because of the agreement and the advice of his counsel that he would be unable to convince the jury of his innocence. At no time did the law officer take the action required by Code, supra, Article 45, or paragraph 706 of the Manual. In short, what was done here was judicially to persuade the accused to plead guilty, although he continued to state matters consistent only with innocence. This is the very evil which Congress sought to avoid. House Report, supra, page 25. Indeed, reliance solely upon the agreement constitutes involuntariness as a matter of law. Shelton v United States, supra. And when that reliance is coupled with a statement completely inconsistent with the plea, Article 45 and our former holdings in the area demand that the plea be set aside.
Despite the foregoing considerations, my brothers reach the conclusion that the plea was provident. Emphasis is placed upon its voluntary character rather than the inconsistency between accused’s plea and his in-court explanations. Accused’s counsel is characterized as experienced, although the record contains not a hint of his military expertise. Indeed, I suggest that it indicates the contrary conclusion, for a fair reading of the matters covered in the out-of-court hearing shows an attorney who has chosen personally to judge his client’s guilt rather than to advocate his cause. Satisfied' that the accused had offered the bribe' and entertaining no respect for his credibility, he decided to persuade him to adopt the course of pleading guilty in return for a pretrial agreement. Perhaps counsel was correct in assessing the probabilities in the case, and it may well be that his advice was wise. What everyone seems to overlook, however, is the fact that the ultimate choice of courses of action must repose in the accused. It he maintains that the facts are such that he is, in law, innocent of the charge, it is not the duty of counsel to attempt to override his assertions. Rather, it is his duty to advocate his client’s cause and to support it in any manner consistent with the law and the canons of our profession. In short, he is an attorney for the accused, and his concurrent status as an officer in the armed services in nowitee detracts from his professional duties.
In this connection, I note with interest that the defense counsel was apparently unaware of the facts elicited from the accused by the law officer until the in-court statements were made, for the record reveals that he did hot conceive of the possible existence of entrapment *622until after he had completed his brief conference with his client. We are left to speculate concerning whether this resulted from a failure previously to interview the accused properly or whether the latter had merely withheld pertinent information. In any event, it is clear to me that providence of a guilty plea should not be measured by the hurried judgment of an attorney concerning the credibility of his client.
Turning again to the principal opinion, I detect in its brief allusion to entrapment a belief that this defense may not exist with respect to the offense of offering bribes. To the contrary, in United States v McGlenn, supra, we pointed out that entrapment was available as a defense whenever Government agents induced the commission of an offense, unless they reasonably suspected that the party involved was engaged in the commission of a crime, or was about to do so, or the original suggestion or initiative came from the perpetrator himself. United States v McGlenn, supra, at page 291. None of these factors are present here. There is not a hint in the record that the police had any cause to suspect that the accused would offer them a bribe, nor is there any indication that he initiated the offer. His explanation to the law officer, despite every opportunity to recant, clearly establishes that the entire concept originated with the investigators.
Finally, the offense of offering bribes is no different with respect to entrapment than any other crime. Its existence as a defense was recognized in United States v Louie Gim Hall, 245 F2d 338 (CA 2d Cir) (1957). Moreover, public policy demands its application to such transactions with Government officers. Frequently, they possess the authority to grant or deny an accused’s desires. Hence, they are well placed to play upon his hopes and falsely implant in his mind the belief that he has only to offer a few dollars in order to attain his end. These considerations are peculiarly applicable to this accused’s situation, for, as the author of the principal opinion notes, the Government agents possessed almost incontestable proof of his guilt of larceny. Faced with such evidence, what defendant would not respond to the overtures of police officers and seize upon a proffered opportunity to escape the consequences of his admitted misconduct? That is the very type of situation which the defense of entrapment is designed to prevent, and I am of the opinion that it is applicable here.
In sum, I believe myself to be in agreement with my brothers concerning the law which they espouse. I depart entirely from them in their finding that, measured by the command of Code, supra, Article 45, the accused’s plea was provident. I rather conclude that he, earnestly maintaining the existence of facts consistent only with innocence, finally acceded to the exhortations of his counsel in the fear that he would otherwise lose the benefit of his pretrial agreement. Thus, I am of the view that the record establishes the improvidence of his plea as a matter of law.
I would reverse the decision of the board of review and return the record of trial for reassessment of sentence on the larceny charge or a rehearing on the bribery offense and the sentence.