Petition for Writ of Certiorari — Bauman v. United States

Supreme Court, U.S.

FILED

IN THE OFFICE GF THE CLERK

Supreme Court of *he United States

OCTOBER TERM, 1995

WILLIAM R. BAUMAN,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

PETITION FOR A WRIT OF CERTIORARI

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

August 1995 (202) 767-1562

QUESTION PRESENTED

Whether the Petitioner’s guilty pleas shox'd be set aside

as improvider’ due to the petitioner’s miunderstanding

of the governn.cnt’s ability to terminate his pay, this not-

withstanding the government’s affirmative promise to sus-

pend any forfeiture of pay for nine years after which the

forfeitures would be remitted without further action.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........---..--00-0+-es-cceeenesenseveseeesoes i

TABLE OF AUTHORITIES. ...............--..cc.cocceseceecsesenssongeses iv

CPTI ITY on perv ssc ostlncescanecencewconcsecceveneenseescensoocre 1

1b) to: 6 5 or one Se Lene 1

STATEMENT OF THE CASE ............-.----2-----e0-eceeeeeceeeeeees 2

REASONS FOR GRANTING THE WRIT ....................... 3

THE PETITIONER’S GUILTY PLEAS SHOULD

BE SET ASIDE AS IMPROVIDENT DUE TO

THE PETITIONER’S MISUNDERSTANDING OF

THE GOVERNMENT'S ABILITY TO TERMI-

NATE HIS PAY, THIS NOTWITHING THE

GOVERNMENT'S AFFIRMATIVE PROMISE TO

SUSPEND ANY FORFEITURE OF PAY FOR

NINE YEARS AFTER WHICH THE FORFEIT-

URES WOULD BE REMITTED WITHOUT FUR-

Oe i conslesiiataionanbaominnnnveinie 3

nc aadvnbeametnneenmreventiengisined 6

APPENDIX A (Order of the U.S. Court of Appeals for

EE EADIE STON OO CN la

APPENDIX B (Opinion of the Air Force Court of

TR) SERRE ene nD ee ee 2a

(iii)

iv

TABLE OF AUTHORITIES

FEDERAL COURT CASES Page

Santabello v. New York, 404 U.S. 257 (1971)........ 6

MILITARY CASES

United States v. Albert, 30 M.J. 331 (C.M.A.

DI civiiechiitncichsarininstienasiininnninbtetaniatcstonitisaeetuicist Aleit eis 5

United States v. Harden, 1 M.J. 258 (C.M.A.

| MN EE FORME HS TES RT 4

United States v. Walker, 34 M.J. 264 (C.M.A.

MDD ahincerctnitedittnchtlatiidntasBinnat dct) 4

United States v. Windham, 36 C.M.R. 21, 15

heel ic IEE. A NII weussiaieveertincicechusniptesiiadSdhecinubpniatans 4

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

No.

WILLIAM R. BAUMAN,

y Petitioner

UNITED STATES OF AMERICA,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Armed Forces

~~

PETITION FOR A WRIT OF CERTIORARI

The petitioner, William R. Baumann, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Armed Forces

entered in this case on 30 May 1995.

OPINIONS BELOW

The final order of the United States Court of Appeals

for the Armed Forces is reported at MJ (1995)

(Appendix A). The unpublished opinion of the United

States Air Force Court of Military Review, issued on

June 30, 1994 is attached (Appendix B).

JURISDICTION

The final order of the United States Court of Appeals

for the Armed Forces was entered on 30 May 1995.

The jurisdiction of this Court is invoked under 28 USCA

2 |

§ 1259(3) (Supp. 1992) and 10 USCA § 867(a) (Supp.

1992).

STATEMENT OF THE CASE

Prior to trial, the petitioner offered to plead guilty to

the charges and specifications pending against him in

return for the following sentence limitation from the con-

vening authority:

1. No confinement exceeding 10 years will be

approved;

2. Any forfeitures of pay shall be suspended for the

duration of any adjudged confinement, said suspen-

sion contingent upon the accused creating and main-

taining an allotment to Lima Bauman for the use and

benefit of her, Geary Bauman, and Jill Webb, as

outlined in the Offer for Pretrial Agreement.

3. No fine will be approved.

App. Ex. IV. As part and parcel of this agreement, the

petitioner agreed that he would:

. execute an individual account in the name of

Lima Bauman, said allotment to be for the use and

benefit of Lima Bauman, Geary, and Jill Webb, and

to continue through the length of my confinement.

This allotment will be established not sooner than

five working days prior to the actual day of trial, and

not later than the actual day of trial. I agree that

if at any time after the execution of this agreement,

should I terminate, reduce or change the allotment

in any way, the Convening Authority may vacate

the suspension of any adjudged forfeitures.

App. Ex. 1. The petitioner’s offer to plead guilty was

accepted by the convening authority and, at trial, the

petitioner pled guilty to all charges and specifications

against him.

3

REASONS FOR GRANTING THE WRIT

THE PETITIONER’S GUILTY PLEAS SHOULD BE

SET ASIDE AS IMPROVIDENT DUE TO THE PETI-

TIONER’S MISUNDERSTANDING OF THE GOV-

ERNMENT’S AFFIRMATIVE PROMISE TO SUSPEND

ANY FORFEITURE OF PAY FOR NINE YEARS

AFTER WHICH THE FORFEITURES WOULD BE

REMITTED WITHOUT FURTHER ACTION

As the above concise history of the pre-trial agreement

in this case indicates, the “bargain” struck between peti-

tioner and the convening authority was that petitioner

would waive his Article 32 U.C.M.J. hearing, plead guilty,

and start an allotment to his wife, in return for which

the convening authority represented to him that his mili-

tary pay would not be stopped for the duration of any

adjudged period of confinement. The unambiguous lan-

guage of the agreement indicates that it was the intent of

the parties that the continuation of the petitioner’s pay

would extend beyond the relatively short term it would

take for petitioner’s court-martial to be processed and

reviewed during the normal appellate process. The con-

vening authority specifically agreed to suspend any for-

feiture of pay for nine years, after which time it would

be remitted without further action. As noted by the

petitioner in his post-trial affidavit, previously submitted

under separate motion (hereinafter Affidavit), the peti-

tioner was therefore quite surprised by the news that the

government could, in effect, unilaterally change the terms

of his “bargained for” pretrial agreement: “It wasn’t until

I arrived at the USDB I was told that when anyone com-

pletes the entire appeal process and is then dismissed,

THAT PAY STOPS AUTOMATICALLY REGARD-

LESS OF ANY AGREEMENT. I would not have agreed

to that, or any other arrangement with such an under-

standing.” Affidavit. This affidavit clearly shows a mis-

apprehension on the part of the petitioner, rendering his

guilty pleas void.

4

A closely analogous situation in which guilty pleas

pursuant to a pretrial agreement have been set aside due

to a misunderstanding on the part of an accused involve

the erroneous calculation of maximum potential sentences.

In one such pretrial agreement case reversed by the Court

of Military Appeals (now the Court of Appeals for the

Armed Forces), the accused misapprehended the maxi-

mum confinement he could have faced. In United States

v. Walker 34 M.J. 264 (C.M.A. 1992), the Court of

Military Appeals highlighted the fact that the accused’s

misunderstanding as to the maximum potential punish-

ment (which was reduced from 10 years and 6 months

to 5 years and six months by the Court of Review after

his court-martial), rendered his guilty pleas pursuant to

a pretrial agreement improvident. The Court noted that

“a plea of guilty may be improvident if it is predicated

upon a substantial misunderstanding on the accused’s

part of the maximum punishment to which he is subject,”

citing United States v. Windham, 36 C.M.R. 21, 23

(1965) and United States v. Harden, 1 M.J. 258, 260

(C.M.A. 1976), respectively. The Court held that apply-

ing an “elastic standard” which considered “all the cir-

cumstances of the case” to determine if the misunder-

standing of the maximum sentence was an insubstantial

factor in the accused’s case led to one conclusion: it could

not “say that the difference in maximum punishment was

an ‘insubstantial factor’ in petitioner’s decision to plead

guilty.” Walker, 34 M.J. at 267. The Court then held

the petitioner’s plea improvident.

Just as the accused’s pleas were rendered improvident

in Walker by his misunderstanding regarding the maxi-

mum punishment in his case, so are the petitioner’s guilty

pleas improvident in the case sub judice. The discrepancy

as to what the petitioner thought regarding the status of

his forfeitures cannot be lightly dismissed as an “insub-

stantial” factor in the petitioner’s decision to plead guilty.

As the petitioner notes in his affidavit, his willingness to

enter into a pre-trial greement with the government was

5

substantially influenced by this misunderstanding. In his

affidavit the petitioner unequivocally states he would not

have entered the pre-trial agreement if he had known

that in fact his family would not be provided for. Affi-

davit. Accordingly, as was the case in Walker, this Honor-

abie Court cannot say that petitioner’s misunderstanding

was an “insubstantial factor in petitioner’s decision to

plead guilty.” The pleas should thus be set aside as

improvident.

In its opinion, the Air Force Court of Military Review

(now the Air Force Court of Criminal Appeals), sum-

marily affirmed the findings and the sentence as ad-

judged without commenting on the substance of this

assignment of error. The Court of Appeals similarly gave

this assignment of error short shrift in its final order,

simply affirming the lower court’s opinion based upon its

previous holding in United States v. Albert, 30 M.J. 331

(C.M.A. 1990). Petitioner would submit that Albert is

distinguishable from the case at bar on its facts.

In Albert, the appellant, a noncommissioned officer,

had reached the end of his term of enlistment prior to

being brought to trial; thus his entitlement to pay and

allowances had actually ceased prior to trial. In his case,

the convening authority simply did not have the power

to reinstate his pay during his period of confinement even

if he had wanted to. In the case at bar, however, both

the convening authority and petitioner were well aware

that, because of petitioner’s status as an Officer, his pay

would continue indefinitely until the completion of appel-

late review and the execution of his dismissal, by that

same convening authority. Obviously, the parties in Albert

and the case sub judice were in substantially different

positions with regard to the entitlement to pay and allow-

ances subsequent to trial. Whereas the convening au-

thority in the case sub judice could have delivered on his

promise by not executing the dismissal, the hands of the

convening authority in Albert were, for all practical pur-

poses, tied.

en

6

In addition to being factually distinguishable from the

case at bar, Albert is just plain wrong and should not be

followed by this Honorable Court. In this case, the prose-

cutors and the convening authority made a “bargain” with

appellant. As noted in Santabello v. New York, 404 U.S.

257 (1971), when a prosecutor makes a bargain, “the

defendant is entitled either to specific performance or to

an opportunity to withdraw his guilty pleas”. In the

posture this case is currently in, the convening authority

will not have to honor his express agreement with peti-

tioner. Petitioner would submit that such a circumstance

violates fundamental precepts of military due process and

should not be countenanced by this Honorable Court.

CONCLUSION

The question presented is genuinely important and af-

fects not only petitioner, but the rights of countless other

individuals who plead guilty to criminal offenses in return

for specific guarantees from prosecutorial authorities, both

in the military and in the civilian communities. The peti-

tioner respectfully requests that this Honorable Court

grant the petition for a writ of certiorari and remand to

the United States Court of Appeals for further considera-

tion in light of its opinion in Santabello v. New York, id.

Respectfully submitted,

JAY LINDSEY COHEN

Colonel, United States Air Force

Chief, Appellate Defense Division

Counsel of Record

Eric N. EKLUND

Captain, United States Air Force

Appellate Defense Counsel

Counsel for the Petitioner

AIR FORCE LEGAL SERVICES AGENCY

172 Luke Avenue, Suite 208

Bolling AFB, DC 20332-5113

August 1995 (202) 767-1562

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

USCA Dkt. No. 94-1369/AF

CMR Dkt. No. 30190

UNITED STATES,

Appellee

Vv.

WILLIAM R. BAUMAN (326-42-0442),

Appellant

ORDER

On further consideration of the granted issue (Daily

Journal, January 24, 1995) in light of United States v.

Albert, 30 MJ 331 (CMA 1990), it is by the Court this

30th day of May, 1995,

ORDERED:

That the decision of the United States Air Force Court

of Military Review is affirmed.

For the Court,

/s/ John A. Cutts, IIT

Deputy Clerk of the Court

2a

APPENDIX B

UNITED STATES AIR FORCE

COURT OF MILITARY REVIEW

UNITED STATES

Vv.

CAPTAIN WILLIAM R. BAUMAN, 326-42-0442

United States Air Force

ACM 30190

30 June 1994

Sentence adjudged 4 August 1992 by GCM

convened at United States Air Force Academy,

Colorado. Military Judge: Robert F. Penater

(sitting alone).

Approved sentence: Dismissal, confinement for

9 years, forfeiture of all pay and allowances

(suspended for 9 years, at which time, unless

the suspension is sooner vacated, will be re-

mitted without further action).

Appellate Counsel for Appellant: Colonel Terry J.

Woodhouse, Major Mary C. Yastishock, and Major

David D. Jividen.

Appellate Counsel for the United States: Colonel

Richard L. Purdon, Colonel Jeffery T. Infelise, and

Major Jules D. Silberberg.

3a

Before

DIXON, GRUNICK, and PEARSON

Appellate Military Judges

PER CURIAM:

Like the military judge at trial, we find appellant

knowingly and voluntarily entered pleas of guilty pur-

suant to a valid pretrial agreement which he understood

despite his post-trial protestations to the contrary. See

R.C.M. 910. We also conclude the military judge did

not err in admitting expert sentencing testimony about

future counseling the victim may need. See United States

v. Hammond, 17 M.J. 218 (C.M.A. 1984). Finally, we

find appellant’s sentence appropriate in light of the egre-

gious sexual abuse he inflicted on his young stepdaughter

over a span of several years including both attempted

rape and fellatio to ejaculation. United States v. Healy,

26 M.J. 394 (C.M.A. 1988).

We have examined the record of trial, the assignment

of errors, and the government’s reply thereto and have

concluded that the findings and sentence are correct in

law and fact, the sentence is appropriate, and no error

prejudicial to the substantial rights of the appellant was

committed. Accordingly the findings and sentence are

AFFIRMED.

W ov. Ss. Covernwent paintine orrice; 1995 397865 24024