Petition for Writ of Certiorari — Fricke v. United States

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No. 09-486 SEP 27 2000

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

MICHAEL W. FRICKE

LIEUTENANT COMMANDER, SUPPLY Corps, U.S Navy,

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

MICHAEL J. WENTWORTH

Lieutenant Commander

Judge Advocate General's Corps

U.S. Navy

Counsel of Record

Navy-Marine Corps Appellate

- Review Activity

716 Sicard St. SE, Suite. 1000

Washington Navy Yard, DC

20347

(202) 433-4161

maretd

QUESTIONS PRESENTED

Whether general court-martial convening authorities have the

unfettered power to refer an otherwise capital case as

noncapital under the Uniform Code of Military Justice?

Whether the convening authority’s noncapital referral in this

case usurped Congress’ legislative authority to prescribe the

sentencing authority of courts-martial?

Whether Petitioner’s general court-martial had jurisdiction to

try him for premeditated murder where the case had not been

previously referred to trial as noncapital case?

TABLE OF CONTENTS

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CONN TY icicsciscincniiniaeendieeneammpeiaiitiiiniaaiblands 1

PRT RIEI OR. uiinswiesinsscineenicivnnsinsincintitscchilaatiandiaitiiaiadeoil 2

Constitutional Provisi@is .cscccccsaccissessesssscessnetsscnisieh 2

Statutory OW Ne cscs csshcsnh inion 2

Seateme et OE The CRUG ccsiseissnscicnnsiensetsiindianslenmnbaia 4

Reasons For Granting The Petition.....................0.. 7

ARG IOIE cesscvscccennseresennnsosnnsesennisoniedinnasaiiabittnaisbladiaaal 8

COENEN cnisnsssecseetssnneestniisneiibinantinlepgnncmenccudaias 28

POE A, ccnsiniinsninnvsiniisnminiiabiniapitgiiiaiadaanenit la

PAPOIIGIS BD oescrveseseseracsnesesenennnscionnnbiehianatemaielilbainian 21a

TABLE OF AUTHORITIES

UNITED STATES SUPREME COURT CASES

Brady v. United States, 397 U.S. 742 (1970)..........:ccccceecseeeeeees 26

Clinton v. Goldsmith, 526 U.S. 529 (1999) ........ccccccccceeseeeeeeees 29

Collins v. McDonald, 258 U.S. 416 (1922) ..........ccccccceseceseeeeeees 8

ee Wi Ns SO MU. GP CRO EB cvsisdsnrisinessscsasnscossonsssansecons 28

J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394

(SERRE AER cE fn STIEE SenPee NCHS ee ee 19

McClaughry v. Deming, 186 U.S. 49 (1902) uu... ceeeeeeees 8, 28

Miranda v. Arizona, 384 U.S. 436 (1966) .............ccccccseeeeeeeeees 26

Raleigh & Gaston R. Co. v. Reid, 80 U.S. 269 (1872) .............. 20

Touby v. United States, 500 U.S. 160 (1991)... eee 22

United States v. Giordano, 416 U.S. 505 (1974). .........ccccceeeeee 22

United States v. Jackson, 390 U.S. 570 (1968).............. 17, 23, 24

United States v. Loving, 517 U.S. 748 (1996) ...........000+ pg Ae 3!

UNITED STATES COURT OF APPEALS FOR THE

ARMED FORCES CASES

United States v. Anderten, 15 C.M.R. 354 (C.M.A. 1954)........ 15

United States v. Bancroft, 11 C.M.R 3 (C.M.A. 1953).............. 15

United States v. Chavez-Rey, 1 M.J. 34 (C.M.A. 1975)............ 26

United States v. Clark, 35 M.J. 432 (C.M.A. 1992) ........:ccceee 4

United States v. Fricke, 53 M.J. 149 (2000)................:0000 passim

United States v. McFarlane, 23 C.M.R. 320 (C.M.A.

is cualinduananeans 15

United States v. Morris, 49 C.M.R. 653 (C.M.A. 1975)............ 27

United States v. Stinson, 34 M.J. 233 (C.M.A. 1992).........000.... 18

United States v. Stoltz, 34 C.M.R. 241 (C.M.A. 1964)...000000..... 26

United States v. Straight, 42 M.J. 244 (1995)........ccececceseeeeeeees 26

UNITED STATES COURTS OF CRIMINAL APPEALS

CASES -

United States v. Dock, 26 M.J. 620 (A.C.M.R. 1988) ............... 16

United States v. Fricke, 48 M.J. 547 (N.M.Ct.Crim.App.

a is cea wen nsa nudnbnrabinwneniiel 6, 16

United States v. Jungbluth, 48 M.J. 953

SR RRND, BIE Di asenssasncssncnsnonsesssaisscnesbivecnssseess 27

ill

United States v. Morlan, 24 C.M.R. 390 (A.B.R. 1957).......0.... 22

United States v. Patrick, 5 C.M.R. 288 (A.B.R. 1952).......0.0.... 14

United States v. Rahn, 33 C.M.R. 945 (A.F.B.R. 1963) .......00..- 16

United States v. Reynolds, 2 M.J. 887 (A.C.M.R. 1967) .........-. 26

United States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976) ....ccccccceseee 26

United States v. Weaver, 31 C.M.R. 662 (A.F.B.R. 1961)........ 16

UNITED STATES DISTRICT COURT CASES

United States v. Cooper, 91 F.Supp.2d 90 (D.D.C. 2000)......... 21

UNITED STATES CONSTITUTION _

Artest §; Boctind G; Cee $6. 2

UNIFORM CODE OF MILITARY JUSTICE

Ast. TGEI MD), 10 U.S.C. 6 BIG Wasa cccoccceccsitcccccccosecce: 10, 27

PE, Fee ARR i icrinaisiedtveinnsceded eel passim

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FN dy i i ene e ie 21

POT. SAMA OO Go lan. © MUNI Bsssasocenins acacia ae 4

me Le © ale], MON Ucer ener ee ey MNeN Sar ue a TADS 27

ra gS We ERRNO CORA mM Ree MAeT MNOS, eh 26

PR: D8 D0 0 se said eee ed 13

FR. Se, Fe ee I crinkle passim

FOR FI Se SS a Ae i cienisanss adgecasbbaacciaa ee 4

Art. 49(f), 50 U.S.C. § 624(f) recodified at 10 U.S.C.

cg) RR ILO SORENESS A LOD Mert Tee TS 12, 19

PURE. DUGMD, SAIS. ON ii inicnccsacenscncs- eta 4

Pam: GED, BP CUE BO icc 13

oe SS eS a EEA een gt een Rimmer she 5

PURE. SP Fe ae ne ree 6

OTHER FEDERAL STATUTES

Act of Oct. 5, 1994, P.L. 103-337, Div A, Title IX,

Subtitle C, § 924(c)(1), (2), (4)(B), 108 Stat. 2831 ...... 15

Article of War 25, Act of June 4, 1920, 41 Stat. 792

amended by Selective Service Act of 1948, Pub.L.

Fr Te Us EE CN ioiicereliciiracsttone eis 12

Federal Kidnapping Act, 18 U.S.C. § 1201(a) (1966) ............... 24

Military Justice Act of 1968, Pub.L. 90-632, 82 Stat. 1335

(1968) reprinted in 1968 U.S.C.C.A.N. 1561.....8, 16, 17

RULES FOR COURTS-MARTIAL

a I cece ee ee 4,20

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MANUAL FOR COURTS-MARTIAL

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eB ek ay Gb Sk) ena Remain Cure ORE sear hai DRA TF ae aE ae 14

TREATISES AND LAW REVIEW ARTICLES

2A SUTHERLAND STAT. CONST. § 47.23-25 (Singer 5th

SE Sarre IIE isis ca sitesicsiinics vadteenatirabeaeognGcentednisaxtanbuad 20

Winthrop, William, MILITARY LAW AND PRECEDENTS (2d

aS, RE RC: OT COOL Send, Se IE 1]

OTHER AUTHORITY

114 CONG. REC. $12,029 (October 3, 1968) ou... eee 25

BULLETIN OF THE JUDGE ADVOCATE GENERAL OF THE

OE 5 Te Ge iv vostnicincieib beable cnakeiciaccasies 12

DIGEST OF OPINIONS, Vol. 11 (The Judge Advocates

General of the Armed Forces, 1961-1962) ..0........0000.... 16

HOUSE COMM. ON THE ARMED SERVICES, 90TH CONG.

REPORT ON INCREASING THE PARTICIPATION OF

LAW OFFICERS IN COURTS-MARTIAL, H.R. REP.

Diy BP RO IE assess fusca niesensda heiagseclininscashconbasbaceaeterittesibhade 25

Military Justice Act of 1968, S. REP. No. 90-1601 (1968),

reprinted in 1968 U.S.C.C.A.N. 4501 ........eeeeeeeeee 17,24

Uniform Code of Military Justice: Hearings on H.R. 2498

Before a House Subcommittee of the Committee

on Armed Forces, 81st Cong., Ist Sess. (1949) in

INDEX AND LEGISLATIVE HISTORY UNIFORM

CODE OF MILITARY JUSTICE (U.S. Government

Printing Office, Washington D.C., 1950)......... Le, 13, 20

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1999

MICHAEL W. FRICKE

LIEUTENANT COMMANDER, SUPPLY Corps, U.S NAvy,

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

Lieutenant Commander Michael W. Fricke, Supply

Corps, United States Navy, petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the Armed Forces.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces, published at 53 M.J. 149 (2000), may be

found at Appendix A., infra, at 1a-20a. The opinion of the

Navy-Marine Corps Court of Criminal Appeals, published at

48 M.J. 547 (1998), may be found at Appendix B, infra at

21a-30a.

JURISDICTION

The United States Court of Appeals for the Armed

Forces entered its judgment on July 5, 2000. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISIONS

Article I, Section 8, Clause 14 of the U.S. Constitution

reads, in relevant part:

The Congress shall have Power . . . To make

Rules for the Government and t Regulation of

the land and naval Forces. .

STATUTORY PROVISIONS

Article 18, Uniform Code of Military Justice,

[hereinafter UCMJ], 10 U.S.C. § 818, reads in relevant part:

[G]eneral courts-martial have jurisdiction to

try persons subject to this chapter for any

offense made punishable by this chapter and

may, under such limitations as the President

may prescribe, adjudge any punishment not

forbidden by this chapter, including the

penalty of death when specifically authorized

by this chapter. [...] However, a general

court-martial of the kind specified in section

816(1)(B)! shall not have jurisdiction to try

any person for any offense for which the death

penalty may be adjudged unless the case has

been previously referred to trial as a

noncapital case.

(emphasis and underscoring added).

Article 45(b) UCMJ, 10 U.S.C. § 845(b) reads in

relevant part: Fs

A plea of guilty by the accused may not be

received to any charge or specification alleging

an offense for which the death penalty may be

adjudged. [...]

Article 49(f) UCMJ, 10 U.S.C. § 849(f) reads in its

entirety:

Subject to subsection (d), a deposition may be

read in evidence or, in the case of audiotape,

videotape, or similar material, may be played

in evidence in any case in which the death

penalty is authorized but is not mandatory,

whenever the convening authority directs that

the case be treated as not capital, and in such a

case a sentence of death may not be adjudged

by the court-martial.

' Consisting of only of a military judge.

STATEMENT OF THE CASE

On February 5, 1994, the convening authority referred

a charge of premeditated murder to trial before a general

court-martial. The maximum authorized punishment for

premeditated murder was death. MANUAL FOR COURTS-

MARTIAL, UNITED STATES (1995 ed.) [hereafter MCM (1995

ed.)], Part IV, 4 43.e.(1). Life imprisonment was_ the

mandatory minimum punishment. /d. The charges were

referred to trial without any special instructions, thereby

making the case capital.’ The military judge and trial defense

counsel were notified of the aggravating factors the

Government intended to prove pursuant to RULE FOR COURTS-

MARTIAL [hereafter R.C.M.] 1004, MCM (1995 ed.). Record

at 2, 141; Appellate Exhibit I.

On August 16, 1994, the court-martial of officer

members* and military judge was assembled and sworn.

Record at 370. On August 17, 1994, trial commenced and the

Government called its first witnesses. Record at 619 et seq.

* Article 118(1), UCMJ, 10 U.S.C. § 918(1)

‘ See United States v. Clark, 35 M.J. 432 n.1 (C.M.A. 1992) ("The

charge sheet reflects ‘None’ in the section for ‘instructions.’ In a capital

case this means the referral is capital.")

* In military practice, the members decide guilt or innocence much like a

civilian jury. Unlike a civilian jury, however, members are handpicked

to be the “best qualified for the duty by reason of age, education,

training, experience, length of service, and judicial temperament.” Art.

25(d)(2), UCMJ, 10 U.S.C. § 825(d)(2). Members, unlike juries, have

the right to call and question witnesses, Art. 46, UCMJ, 10 U.S.C. § 846.

Members also are responsible for adjudging an apprupriate sentence.

Art. 51(a), UCMJ, 10 U.S.C. § 851.

On_ August 26, 1994, the defense and convening

authority entered into an agreement in which the Petitioner

agreed to enter a plea of guilty and waive his night to a tnal

and sentencing by members in return for the government

withdrawing the capital referral of the case. Record at 1391-

92; Appellate Exhibit CCXII at 3. If Petitioner failed to

comply with any of the terms of the pretrial agreement, his

pleas of guilty would be withdrawn and the capital trial would

resume. Record at 1392; Appellate Exhibit CCXII at 2.

The military judge then excused the members from the

courtroom. Record at 1388-89. The military judge re-advised

Petitioner of his rights and Petitioner elected trial by military

judge alone pursuant to the pretrial agreement. Record at

1394. Petitioner then entered his plea of guilty to premeditated

murder pursuant to the pretrial agreement. Record at i391-

1424. The military judge accepted his pleas and entered a

finding of guilty. Record at 1423. The members were

dismissed on August 29, 1994. Record at 1425.

On August 30, 1994, Petitioner was sentenced by the

military judge to a dismissal from the naval service, confine-

ment for life, total forfeiture of all pay and allowances, and a

fine of $100,000. Record at 1444. On June 11, 1995, the

convening authority approved the sentence and, except for

the dismissal, ordered it executed. Pursuant to the agree-

ment, the convening authority suspended all confinement in

excess of 30 years, as well as the forfeiture of all pay and

allowances, for a period of 10 years from the date of trial.

The record of trial was forwarded to the Navy-Marine

Corps Court of Criminal Appeals for review pursuant to Art.

66, UCMJ, 10 U.S.C. § 866. On March 10, 1998 the Navy-

Marine Corps Court issued its decision affirming the findings

and sentence as adjudged. United States v. Fricke, 48 M.J.

547 (N.M.Ct.Crim.App. 1998),

On June 4, 1999, the U.S. Court of Appeals for the

Armed Forces granted Petitioner’s petition for grant of

review, pursuant to Art. 67(a)(3), UCMJ, 10 U.S.C.

$867(a)(3), on two issues.” On July 5, 2000 the Court of

Appeals affirmed the Navy-Marine Corps Court’s decision as

to the findings of guilt but set aside its decision as to

sentence and ordered an evidentiary hearing as to matters

relating to a claim of unlawful pretrial punishment. United

States v. Fricke, 53 M.J. 149 (2000).

Before the Court of Appeals, Petitioner argued that

his military judge-alone court-martial had no jurisdiction

under Art. 18, UCMJ, to try him, and his pleas of guilty were

unlawful under Art. 45(b), UCMJ, because the case had not

been previously referred to trial as a noncapital case and the

convening authority’s purported “withdrawal” of the capital

referral was contingent upon Petitioner's complying with the

terms of the pretrial agreement. /d. at 153. The Court of

* I. Whether the Navy-Marine Corps Court of Criminal Appeals erred in

finding that appellant is not entitled to additional administrative time

credit for having been illegally confined prior to trial, and additional

administrative time credit for having been subjected to unlawful pretrial

punishment in violation of Articles 13 and 55, UCMJ.

Il. Whether the Navy-Marine Corps Court of Criminal Appeals erred

in finding that appellant's guilty plea is not void in violation of article 45,

UCMS, in that appellant pleaded guilty to a capital offense and the

general court-martial of the kind specified in 10 U.S.C. section 816(1)(b)

was without jurisdiction to convict appellant based upon this improvident

plea.

Appeals rejected these defects as “technical in nature” and

noted that the military judge acknowledged the noncapital

referral on the record. /d. at 154.

REASONS FOR GRANTING THE PETITION

This Court should grant this petition because:

e The Court of Appeals, by sanctioning a general court-

martial convening authority's unfettered power to restrict

the sentencing authority of a general court-martial to

adjudge a sentence of death in an otherwise capital case,

has so far departed from the uniform system of military

justice prescribed by Congress as to call for an exercise of

this Court's supervisory powers;

e The Court of Appeals has decided an important question

involving the power of a general court-martial convening

authority to limit the sentencing authority of general

courts-martial in a capital case in a manner contrary to the

Constitution’s separation of powers scheme and which

conflicts with relevant decisions of this Court, including

United States v. Loving, 517 U.S. 748 (1996); and

e The Court of Appeals’ construction of the jurisdiction of

a general court-martial consisting of a military judge

alone under Art. 18, UCMJ, as amended by the Military

Justice Act of 1968, is an important question of federal

law which has not been, but should be, settled by this

Court because it will affect the disposition of every court-

martial involving a capital offense.°

® Art. 85 (desertion in war), Art. 94 (mutiny and sedition), Art. 99

ARGUMENT

A court-martial “is a mere creature of the statute. . .

and must be created under its provisions.” McClaughry v.

Deming, 186 U.S. 49, 64 (1902). This Court has long held

that “unless facts essential to sustain [a court-martial’s]

jurisdiction appear, it must be held not to exist.” Collins v.

McDonald, 258 U.S. 416, 418 (1922).

As part of the Military Justice Act of 1968, Congress

amended Article 18, UCMJ, to provide that "a general court-

martial [consisting of a military judge alone] shall not have

Jurisdiction to try any person for any offense for which the

death penalty may be adjudged unless the case has been

previously referred to trial as a noncapital case.” Military

Justice Act of 1968, Pub.L. 90-632, 82 Stat. 1335 (1968)

reprinted in 1968 U.S.C.C.A.N. 1561 (emphasis added).

Nevertheless the Court of Appeals for the Armed

Forces interpreted this jurisdictional limitation as a mere

technicality which does not preclude a general court-martial

convening authority from withdrawing and re-referring a

capital case as noncapital, contingent upon an accused

entering into a pretrial agreement to plead guilty and be

sentenced by a military judge alone. United States v. Fricke,

53 M.J. at 153-154.

(misbehavior before the enemy), Art. 100 (subordinate compelling

surrender), Art. 101 (improper use of a countersign), Art. 102 (forcing a

safeguard), Art. 104 (aiding the enemy), 106 (spies), 106a (espionage),

110 (willfuliy hazarding a vessel), 113 (misbehavior of a sentinel during

war), 118 (premeditated and "felony" murder), and 120 (rape), UCMJ,

10 U.S.C. §§ 885, 894, 899-902, 904, 906, 906a, 910, 913, 918 and 920.

The Court of Appeals’ decision is wrong and must be

reversed by this Court because:

A. It gives to general court-martial convening

authorities the unfettered discretion to refer an otherwise

capital offense as noncapital despite the absence of any

statutory authority or legislative history to support such a

broad exercise of power.

B. It violates the Constitution’s separation of powers

scheme by usurping Congress’ legislative authority to define

the sentencing power of a general court-martial and giving it

to career military officers to exercise, on a case-by-case basis,

without any intelligible principles to follow; and

C. It interprets the 1968 amendments to Art. 18,

UCMJ, in a manner contrary to the plain language and

legislative intent of Congress that a military accused not be

placed in the position of waiving his right to a trial before

members in order to avoid the death penalty.

For these reasons Petitioner’s court-martial,

consisting of a military judge alone, was without jurisdiction

to try and sentence him for an “offense for which the death

penalty may be adjudged” because the case was not, and

constitutionally and statutorily could not, be referred to trial

as a noncapital case under the circumstances of this case.

General court-martial convening authorities do not have

the authority to refer an otherwise capital offense of

premeditated murder as noncapital in order to confer

jurisdiction on a court-martial consisting of a military

judge alone.

In military practice the prosecution of courts-martial

begins when a convening authority, typically a senior

military officer in the accused's chain-of-command, appoints

or "convenes" a court-martial by selecting a panel of officers

and then "refers" charges to that panel of officers for trial.

See R.C.M. 504 and 601, MCM (1995 ed.). A military judge

is then "detailed" -pursuant to regulations of the service

secretary. R.C.M. 503(b)(1), MCM (1995 ed.). In a

noncapital case, the accused may request a bench trial before

the military judge alone. Art. 16(1)(b), UCMJ, 10 U.S.C. §

816(1)(b).

For offenses for which the death penalty may be

adjudged, however, a court-martial consisting of a military

judge alone does not have jurisdiction to try the accused

unless the charges have been previously referred as

noncapital. Art. 18, UCMJ. Nor may an accused plead

guilty to a capital offense, i.e. “an offense for which the death

penalty may be adjudged.” Art. 45(b), UCMJ.

The Court of Appeals, in dismissing the defects in the

purported noncapital referral as merely “technical in nature"

assumed, a priori, that the convening authority in this case

had the legal power to refer the case as noncapital. United

States v. Fricke, 53 M.J. at 153-154. Yet the Court of

—

Appeals' decision does not cite any statutory authority for

such a proposition.

The Court of Appeals’ failure to cite such authority is

critical because, if the convening authority did not have the

legal power to refer the charges as noncapital, then

Petitioner's court-martial consisting of a military judge alone

was without jurisdiction to try him under the plain language

of Art. 18, UCMJ.

The explanation for this “oversight” is quite simple.

Congress has never given convening authorities such

unfettered power. Yet, for over 40 years, the Court of

Appeals for the Armed Forces has, through judicial fiat,

recognized and acquiesced in_ general court-martial

convening authorities’ exercise of this unrestrained power to

refer otherwise capital offenses as “noncapital” and thereby

preclude general courts-martial from adjudging an otherwise

lawful sentence to death.

Historically, courts-martial have had wide discretion

in deciding what sentence to adjudge in a general court-

martial and were subject only to the limits imposed by the

Constitution, Congress, and the President. William

Winthrop, MILITARY LAW AND PRECEDENTS at 395-400 (2d

ed. rev. 1920). It was not until 1890 that Congress gave the

President authority to set maximum limits. /d. The

convening authority’s power to affect the sentence has, in

contrast, always been reserved until after the trial. /d. at 447-

48.

Prior to 1948 “there was no provision in the law for

the treatment of a capital case as not capital by reason of the

appointing authority directing, before trial by general court-

martial, that it be so treated.” BULLETIN OF THE JUDGE

ADVOCATE GENERAL OF THE ARMY, [X(2), §382 at 76

(1950).

In 1948 Congress amended Article 25 of the Army’s

Articles of War [hereafter “A.W. 25”] to permit the

Government to take and admit depositions in cases involving

capital offenses, provided the charges were referred as

noncapital prior to trial. Act of June 4, 1920, 41 Stat. 792

amended by Selective Service Act of 1948, Pub.L. 759, 62

Stat. 631 (1948).

Following the enactment of the UCMJ in 1950, only

Art. 49(f) made reference to noncapital referrals. 50 U.S.C.

§ 624(f) recodified at 10 U.S.C. § 849(f). Art. 49(f), UCMJ,

provided for the admission of depositions in capital cases

“whenever the convening authority directs that the case be

treated as not capital,” and was taken directly from A.W. 25.

Uniform Code of Military Justice: Hearings on H.R. 2498

Before a House Subcommittee of the Committee on Armed

Forces, 81st Cong., Ist Sess. at 1064-1065 (1949) in INDEX

AND LEGISLATIVE HISTORY UNIFORM CODE OF MILITARY

JUSTICE (U.S. Government Printing Office, Washington

D.C., 1950) [hereafter “House Hearings”]. Thus under the

Code, Congress continued to authorize noncapital referrals of

capital offenses only where the Government’s proof would.

fail were it unable to use depositions. /d.

Nothing in the legislative history of the UCMJ

suggests that Congress intended to give to individual

convening authorities the unfettered power to decide whether

an otherwise capital offense would be tried as “noncapital.”

See e.g. House Hearings at 820, 1056-1057 (discussing Art.

45, UCMJ, and the circumstances under which an accused

might plead guilty to a lesser-included noncapital offense or

to a capital offense referred to a special court-martial.’).

Nor is a general power to refer cases as noncapital

suggested in any other article of the UCMJ. Prior to trial the

convening authority’s only considerations are whether the

specification states an offense, whether the evidence warrants

the specification, and whether a court-martial would have

jurisdiction over the accused and the offense. Art. 34,

UCMSJ, 10 U.S.C. § 834. The only means Congress gave

‘convening authorities to limit the sentencing discretion of

courts-martial members was through deciding which charges

to refer to trial and the type of court-martial to which they

are referred. In contrast Congress gave convening authorities

virtually unlimited discretion, after trial, to approve or

disapprove all or part of the findings and sentence. Art.

60(c), UCMJ, 10 U.S.C. § 860(c).

Congress intended that, subject to the jurisdictional

limits of the particular type of court-martial, and the

President’s maximum sentence limitations under Art. 56,

UCMBJ, a general court-martial would be free to adjudge any

lawful punishment it saw fit. See Art. 18, UCMSJ (“general

courts-martial ... may, under such limitations as the

President may prescribe, adjudge any punishment not

forbidden by this chapter, including the penalty of death

when specifically authorized by this chapter.”) Cf Art. 37,

UCMSJ, 10 U.S.C. § 837 (“No person subjectto this chapter

’ Death is not an authorized punishment at a special court-martial. Art.

19, UCMJ, 10 U.S.C. § 819.

may attempt to coerce or, by any unauthorized means,

influence the action of a court-martial...in reaching

the...sentence in any case...” except for instructional or

informational courses and statements and instructions given

in open court.)

After adoption of the UCMJ, the President

promulgated the first Manual for Courts-Martial

implementing the code and expressing his clear

understanding that the limited scope of a convening

authority’s power to refer a case as noncapital had not

changed from pre-Code practice:

Although capital under one of the articles

cited, an offense is not capital if the applicable

maximum limit of punishment prescribed by

the President under Article 56 is less than

death (127c); or, in any case in which the ~

death penalty is not mandatory but is

authorized by law whenever the authority

competent to convene a court-martial for a

capital case has directed that the case be

treated as not capital pursuant to Article 49

(145a)....

MANUAL FOR COURTS-MARTIAL, UNITED STATES (1951),

1Sa(3) (emphasis added).

The earliest military appellate decisions similarly

found the power to refer a case as noncapital to be restricted

to circumstances in which the Government needed to use

depositions. See e.g. United States v. Patrick, 5 C.M.R. 288,

289 (A.B.R. 1952) (“The Uniform Code of Military Justice

and the Manual for Courts-Martial, 1951, apparently contain

no specific provisions relating to the treating of otherwise

capital offenses as not capital, in order that a plea of guilty

thereto may be accepted.”) See also United States v.

Anderten, 15 C.M.R. 354 (C.M.A. 1954); United States v.

Bancroft, 11 C.M.R 3, 9-11 (C.M.A. 1953),

Then, in 1959, the Court of Military Appeals* upheld

the Air Force Board of Review’s decision affirming the

conviction in United States v. Wheeler, 27 C.M.R. 981, 995

n.23 (A.F.B.R. 1959) aff'd 28 C.M.R. 212, 214 (C.M.A.

1959). In Wheeler the Court of Military Appeals rejected the

appellant’s collateral attack on his pleas of guilty to

premeditated murder as contrary to Art. 45(b), UCMJ, noting

“parenthetically that in view of the convening authority’s

directive [that the case be treated as not capital], the death

penalty otherwise imposable upon conviction for

premeditated murder could not be adjudged.” /d. The Court

of Military Appeals cited no statutory basis for this

conclusion and none of the cases cited by either the Air

Force Board of Review or Court of Military Appeals in their

respective decisions support that proposition. /d. at 995,

n.23; 28 C.M.R. at 214°

"In 1994 the Court of Military Appeals’ name changed to United States

Court of Appeals for the Armed Forces. Act of Oct. 5, 1994, Pub.L.

103-337, Div A, Title IX, Subtitle C, § 924(c), 108 Stat. 2831, 2832.

” The Court of Military Appeals’ decision in Wheeler relies exclusively

upon United States v. McFarlane, 23 C.M.R. 320 (C.M.A. 1957). In

McFarlane the appellant's sentence to death for felony murder was set

aside because of the defense counsel's failure to adequately prepare and

contest the government's case. /d. at 324. The Court of Military Appeals

found the defense counsel's conduct was tantamount to a guilty plea to a

Nevertheless, this “parenthetical” aside in Wheeler

has become the lodestar for the proposition that convening

authorities have the unfettered discretion to refer otherwise

capital cases as noncapital. See e.g. United States v. Fricke,

48 M.J. 547, 549 (N.M.Ct.Crim.App. 1998); United States v.

Snodgrass, 37 M.J. 844, 846 (A.F.C.M.R. 1993); United

States v. Dock, 26 M.J. 620, 622 (A.C.M.R. 1988); United

States v. Rahn, 33 C.M.R. 945, 947 n.1 (A.F.B.R. 1963);

United States v. Weaver, 31 C.M.R. 662, 665 (A.F.B.R.

1961) pet. rev. denied. 31 C.M.R. 314 (C.M.A. 1961). See

also DIGEST OF OPINIONS, Vol. 11 at 98 (The Judge

Advocates General of the Armed Forces, 1961-1962) (“The

convening authority’s granting of a request that a charge of

premeditated murder be treated a noncapital is sufficient

consideration of the accused’s agreement to plead guilty to

the offense....” citing Wheeler.).

In 1968 Congress amended the UCMJ to create the

office of “military judge.” Military Justice Act of 1968,

Pub.L. 90-632, 82 Stat. 1335 (1968) reprinted in 1968

U.S.C.C.A.N. 1561 (codified at Art. 26, UCMJ, 10 U.S.C. §

826). Congress also amended the Code to provide for trial

by “general courts-martial consisting of ...only a military

judge, if before the court is assembled the accused, knowing

the identity of the military judge and after consultation with

defense counsel, requests orally on the record or in writing a

court composed only of a military judge and the military

judge approves....” /d. ( codified Art. 16(1)(B), UCMJ,10

U.S.C. § 816(1)(B)).

capital offense in violation of Art. 45(b), UCMJ. /d. Thus the

McFarlane case has nothing to do with noncapital referrals.

Finally, Congress amended Art. 18, UCMJ, to

provide that a general court-martial, composed of a military

judge alone, would “not have jurisdiction to try any person

for any offense for which the death penalty may be adjudged

unless the case has been previously referred to trial as a

noncapital case.” Military Justice Act of 1968, Pub.L. 90-

632, 82 Stat. 1335 (1968) reprinted in 1968 U.S.C.C.A.N.

1561-62 (emphasis added).

The legislative history of the amendment states that

this amendment was “intended to avoid the type of choice

found objectionable by the U.S. Supreme Court in United

States v. Jackson 88 S.Ct. 1209, 390 U.S. 570, 20 L.Ed.23d

138 (1968), which invalidated a provision in the Federal

Kidnapping Act that only the jury could impose a death

penalty, on the theory that this provision impaired free

exercise of the right to a jury trial.”” Military Justice Act of

1968, S. REP. No. 90-1601 (1968), reprinted in 1968

U.S.C.C.A.N. 4501, 4505.

Nowhere in the extensive legislative history to the

Military Justice Act of 1968 is there any indication that

Congress intended to give convening authorities unfettered

discretion to refer otherwise capital cases as noncapital in

order to facilitate guilty pleas and pretrial agreements. /d. at

4501 et seg. Rather, the focus of the 1968 act was “to

increase the participation of law officers [military judges]

and counsel on courts-martial,” i.e. the creation of a trial

judiciary and expansion of the right of an accused to a

qualified defense counsel. /d.

In United States v. Stinson, 34 M.J. 233 (C.M.A.

1992), the Court of Military Appeals considered the issue of

whether a general court-martial composed of a military judge

alone had jurisdiction to try an accused for an otherwise

capital offense in light of the amendment to Art. 18, UCMJ.

In holding that it did, the on/y authority cited by the Court of

Military Appeals for the proposition that “a convening

authority may direct trial of a capital offense as noncapital

unless the death penalty is mandatory,” was the nonbinding

discussion following R.C.M. 601(e)(1). /d. at 238.

The Court of Appeals, in its decision below, does not

even take up the question of whether the convening authority

had the power to refer Petitioner’s case noncapital. United

States v. Fricke, 53 M.J. at 153-154. Rather, the Court of

Appeals relies upon an a priori assumption that the

convening authority had such power and restricts its

discussion to the technical nature in which he is required to

exercise it. /d.

Despite over 40 years of Court of Military Appeals-

Court of Appeals for the Armed Forces decisions to the

contrary, the emperor continues to have no clothes.

Convening authorities have no statutory authority to support

their broad exercise of discretion in referring otherwise

capital cases as noncapital under the UCMJ.

The,convening authority’s purported noncapital

referral in this case was ultra vires and the maximum

punishment for Petitioner’s charged offense remained death.

Consequently the military judge had no jurisdiction to accept

the Petitioner’s pleas, enter findings of guilty, or adjudge a

sentence under Art. 18, UCMJ.

The convening authority’s noncapital referral in this case

violates the Constitution’s separation of powers scheme

by usurping Congress’ legislative authority to prescribe

the sentencing authority of courts-martial.

When a general court-martial convening authority

refers an otherwise capital offense to trial as a noncapital

case, he imposes a limit on the discretion of the court-martial

to adjudge the death penalty. The power to define and limit

punishments for military offenses is a legislative function

reserved to Congress. United States v. Loving, 517 U.S. at

768-69.

Congress may expressly delegate the responsibility to

more precisely define the limits of appropriate punishments

for military offenses. /d. In doing so, however, Congress

must “lay down by legislative act an intelligible principle to

which the person or body authorized to [act] is directed to

conform.” /d. at 771-772 quoting Hampton, Jr. & Co. vy.

United States, 276 U.S. 394, 409 (1928).

Congress has expressly delegated to convening

authorities only a very narrow authority to refer cases as

noncapital when necessary to secure the admission of

deposition testimony. Art. 49(f), UCMJ. Since this case did

not involve a need to admit deposition testimony, the

delegation of authority under Art. 49(f), UCMJ cannot form

the basis for the convening authority’s purported noncapital

referral.

The specific language of Art. 49(f), UCMJ, calls into

play the maxim of statutory construction expressio unius est

exclusio alterius (expression of one thing is the exclusion of

another). Raleigh & Gaston R. Co. v. Reid, 80 U.S. 269, 270

(1872). See generally 2A SUTHERLAND STAT. CONST. §

47.23-25 (Singer 5th ed. 1992 Revision). Where Congress

has limited the authority to refer cases as noncapital to the

circumstances of Art. 49(f), it must be inferred that it

excluded such authority under any other circumstances.

Even if the language and legislative history of the

Code did suggest a broader discretion to make noncapital

referrals, neither Congress nor the President has provided

convening authorities with an intelligible principle to follow.

Admittedly the Manual for Courts-Martial’s “non-binding’’"”

discussion does state that “[w]hen a convening authority has

discretion to refer a capital case as noncapital, the convening

authority should be guided by the criteria for adjudging

capital punishment found at R.C.M. 1004.” R.C.M. 601(e)(2)

Discussion, MCM (1995 ed.). This case, however,

demonstrates the “non-binding” characteristic of the

discussion. Here the convening authority’s decision to re-

refer the case as noncapital was not guided by the criteria in

R.C.M. 1004, i.e. a balancing of aggravating and mitigating

factors. Instead it was driven by a pretrial agreement

designed to secure Petitioner’s guilty pleas and waiver of the

right to a trial by members.

'° See MCM (1995 ed.), Part I, Preamble at I-1 (Manual's discussion

sections do not constitute the official views of any Government

department or agency; do not create rights or responsibilities that are

binding on any person, party, or other entity; and failure to comply with

it does not, of itself, constitute error.)

Moreover, the general court-martial convening

authority in this case was a career military officer. Record

at 2. A military commander’s training, primary duties,

typically brief period of tenure in command, and limited

exposure to cases involving capital offenses make him (or

her) particularly unsuited to the task of determining what

range of punishments ought to be considered by a court-

martial.'' Unlike the President, convening authorities do not

possess inherent authority over the administration of military

justice under the Constitution. Cf United States v. Loving.

547 U.S. at 772-73. Therefore any such delegation of

legislative authority to them would require explicit guidance

on how and when general court-martial convening authorities

could refer a case as noncapital. /d. at 773. Such guidance

simply does not exist.

Congress has delegated to the President the power to

set uniform maximum punishments under Articles 18, 36,

and 56, UCMJ. United States v. Loving, 517 U.S. at 769-71.

Nowhere in the language of those articles, however, has

Congress expressly assigned to the President the power to

limit a court-martial's authority to adjudge a death penalty in

'' Given Congress' goal of establishing a “uniform” system of justice, it

would be remarkably inconsistent to vest the unfettered discretion to

decide whether a referral will be capital or noncapital in every one of

literally hundreds of flag and general officers, as well as commanding

officers of lesser rank, in every armed force scattered around the world.

Art. 22, UCMJ, 10 U.S.C. § 822. In the federal criminal justice system,

in contrast, there is a centralized review of every indictment that seeks to

charge a capital offense. See United States v. Cooper, 91 F.Supp.2d 90,

113 (D.D.C. 2000) (Attorney General has the responsibility to decide in

which cases the United States will seek the death penalty).

an otherwise capital case on a case-by-case basis. Such a

delegation of Congress’ legislative authority, even assuming

it did exist, could not be further sub-delegated absent specific

Congressional intent to permit such a sub-delegation. See

Touby v. United States, 500 U.S. 160, 169 (1991); United

States v. Giordano, 416 U.S. 505, 512-514 (1974).

Support for the position that Congress did not

delegate its authority to establish maximum punishments is

far more persuasive. Congress clearly intended that the

President personally exercise his authority to make rules and

limit maximum punishments in order to promote uniformity

within and among the Armed Forces. See House Hearings

757, 1088-1089; United States v. Morlan, 24 C.M.R. 390,

394-395 (A.B.R. 1957). Allowing general court-martial

convening authorities the unfettered discretion to use

noncapital referrals to decide, on a case-by-case basis,

whether a general court-martial will have the authority to

impose the death sentence would undermine the uniform

treatment of the most serious offenses under the Code. It

would also be contrary to Congress’ mandate in Art. 36(b),

UCMB, that “all rules and regulations made under this article

shall be uniform insofar as practical.” 10 U.S.C. § 836(b).

The convening authority’s purported noncapital

referral in this case was unconstitutional and the maximum

punishment for Petitioner’s charged offense remained death.

Consequently the military judge had no jurisdiction to accept

the Petitioner’s pleas, enter findings of guilty, or adjudge a

sentence under Art. 18, UCM].

The Court of Appeals efred in deciding Petitioner’s

general court-martial, composed of a military judge

alone, had jurisdiction to try him for premeditated

murder, an offense for which the death penalty may be

adjudged, where the case was not previously referred to

trial as a noncapital case as required by Article 18,

UCMJ, 10 U.S.C. § 818.

Even assuming some shred of evidence that Congress

had given a broad grant of authority to general courts-martial

convening authorities to refer cases as noncapital, the Court

of Appeals’ interpretation of the 1968 amendments to Art.

18, UCM] is contrary to the plain language and legislative

intent of Congress that a military accused may not waive a

trial by a court-martial composed of members while under

the threat of a death penalty.

The legislative history of the 1968 amendment to Art.

18, UCMJ, states that it was:

[I]ntended to avoid the type of choice found

objectionable by the U.S. Supreme Court in

United States v. Jackson 88 S.Ct. 1209, 390

U.S. 570, 20 L.Ed.23d 138 (1968), which

invalidated a provision in the Federal

Kidnapping Act that only the jury could

impose a death penalty, on the theory that this

provision impaired free exercise of the right to

a jury trial. The section provides that the

jurisdiction of a military judge sitting alone is

limited to cases rendered non-capital before

reference to trial.

Military Justice Act of 1968, S. REP. No. 90-1601 (1968),

reprinted in 1968 U.S.C.C.A.N. 4501, 4505.

In Jackson, this Court was called upon to decide the

constitutionality of the Federal Kidnapping Act, which at the

time provided in relevant part that interstate kidnappers

“shall be punished (1) by death if the kidnapped person has

not been liberated unharmed, and if the verdict of the jury

shall so recommend....”” 18 U.S.C. § 1201(a) (1966).

The Kidnapping Act, however, did not provide for

the imposition of capital punishment in the event a defendant

waived his right to a jury trial and was sentenced by a federal

judge. United States v. Jackson, 390 U.S. at 570. Moreover,

if a defendant pled guilty then, by operation of statute, he

would be sentenced by a judge without a jury and a death

sentence could not be imposed. /d. at 576-577.

This Court found the Kidnapping Act to be

unconstitutional because it imposed an impermissible burden

upon the exercise of a defendant’s right to demand a trial by

jury. United States v. Jackson, 390 U.S. at 572 (“the

defendant’s assertion to the right to a jury trial may cost him

his life...”’) and 581-82.

Consequently the language Congress added to Art.

18, UCMJ, requiring the noncapital referral to have “been

previously referred to trial as a noncapital case” can only be

_tead as meaning referred prior to the accused being required

to elect the composition of his court-martial and enter pleas.

The legislative history’s use of the phrase “rendered

noncapital before reference to trial,” plainly indicates that,

before a military accused must decide whether to waive his

right to a trial before members, he must no longer be subject

to the threat of the death penalty. See also HOUSE COMM. ON

THE ARMED SERVICES, 90TH CONG. REPORT ON INCREASING

THE PARTICIPATION OF LAW OFFICERS IN COURTS-MARTIAL,

H.R. REP. No. 90-1481 at 5 (1968); 114 CONG. REc. $12,029

(October 3, 1968).

In this case, however, the case was referred capital

and remained capital throughout the negotiation of the

pretrial agreement. Even the purported withdrawal of the

capital referral and “noncapital” re-referral was conditioned

on Petitioner’s pleading guilty and otherwise complying with

the pretrial agreement. Record at 1392. There is no

authority in the Code or its legislative history sanctioning a

“conditional” noncapital referral in return for a guilty plea to

a capital offense.'? Congress has never amended Art. 45(b)

to expressly permit guilty pleas if charges were rendered

noncapital, even though it amended Art. 45(b) to permit the

entry of findings to guilty pleas to noncapital offenses

'* The Air Force Court of Criminal Appeals appears to have been the

only military court to actually consider the implications of a "contingent"

noncapital referral. United States v. Snodgrass, 37 M.J. 844 (A.F.C.M.R.

1993). There, the court was tasked with resolving whether such a pretrial

agreement violated Art. 45(b), UCMJ. /d. at 846-847. The court

concluded that procedural violation, i.e. the failure to previously refer the

case as noncapital, did not constitute prejudicial error in terms of Art.

45(b) because there was no doubt among the parties that the military

judge would not impose the death penalty. /d. at 847. Snodgrass,

however, did not address the jurisdictional defect arising out of Art. 18,

UCMJ.

without a formal vote by members. Military Justice Act of

1968, H.R. REP. No. 90-1481 at 9. There is simply no basis

to conclude that Congress ever intended to authorize

conditional “noncapital” referrals as a mechanism to secure

guilty pleas in capital cases."

Nevertheless, the President has promulgated R.C.M.

705(b)(2)(B), MCM (1995 ed.) expressly authorizing

convening authorities to trade noncapital referrals for pleas

of guilty. R.C.M. 705(b)(2)(B) is a new provision first

published in the 1984 edition of the Manual for Courts-

Martial. MANUAL FOR COURTS-MARTIAL, UNITED STATES

1984, Analysis of Rules for Courts-Martial, App. 21 at A21-

35. In light of the plain language added to Art. 18, UCMJ,

there is simply no authority for the proposition that R.C.M.

705(b)(2)(B) is a lawful exercise of the President’s rule-

making power."

The plain language and history of the 1968 amend-

'’ Agreements to plead guilty to avoid a possible death sentence have

subsequently been upheld as constitutional. See e.g. Brady v. United

States, 397 U.S. 742, 755 (1970); United States v. Straight, 42 M.J. 244,

247 (1995). Congress, however, has historically accorded military

members greater protection from prosecutorial overreaching. See e. g.

Art. 31(b), UCMJ, 10 U.S.C. § 831(b) enacted 16 years before this

Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966).

'* The analysis to R.C.M. 705(b)(2)(B) states that “Subsection (2)(B) is

based on United States v. Reynolds, 2 M.J. 887 (A.C.M.R. 1967); United

States v. Tyson, 2 M.J. 583 (N.C.M.R. 1976). See also United States v.

Chavez-Rey, 1 M.J. 34 (C.M.A. 1975); United States v. Stoltz, 14

U.S.C.M.A.. 61, 34 C.M.R. 241 (1964).” MCM (1995 ED.), App. 21 at

A21-39. None of these cases involve pretrial agreements where a

noncapital referral was a contingent term of the pretrial agreement.

ment to Art. 18, UCMJ, make clear that when a convening

authority has the power to refer a case as noncapital, he must

do so unconditionally before a military accused may elect to

plead guilty and waive his right to a trial by members. Then,

and only then, will a court-martial composed of a military

judge alone have jurisdiction to try his case.

At the time Petitioner entered into the pretrial

agreement, the members had already assembled’ and sworn

and a capital trial had begun. Had he refused to plead guilty

or request trial by military judge alone, his case would have

immediately reverted back to a capital trial before the same

'S Although not raised below, Petitioner’s request for trial before a

military judge alone is void, and the court-martial without jurisdiction,

because the request was not made “before the court is assembled.” See

Art. 16(1)(b), UCMJ. Both the Court of Appeals and the Navy-Marine

Corps Court of Criminal Appeals, however, have held this language is

not jurisdictional and that noncompliance is merely a “technical

violation” (despite the fact that Art. 16 is part of subchapter IV of the

Code entitled “Court-Martial Jurisdiction). United States v. Morris, 49

C.M.R. 653 (C.M.A. 1975); United States v. Jungbluth, 48 M.J. 953

(N.M.Ct.Crim.App.1998) pet. rev. denied 52 M.J. 294 (U.S.C.A.A.F.

1999). Both decisions ignore the plain language of Art. 16, UCMJ, and

the historical and jurisdictional significance of the assembly and

swearing of court-martial members which thereby empowers them to

proceed to try an accused. Winthrop at 162. After assembly a military

judge may only excuse an individual member because of physical

disability or other good cause. Art. 29, UCMJ, 10 U.S.C. § 829. These

opinions also gloss over the plain language of R.C.M. 903(e), MCM

(1995 ed.) (“[T]he military judge may until the beginning of the

introduction of evidence on the merits, as a matter of discretion, approve

an untimely request [for trial by military judge alone]....”") There is

simply no authority for a military judge to excuse an assembled panel of

sworn members and substitute himself as the court-martial, particularly

when, as in this case, many witnesses have already been heard.

members who were waiting in the wings. Accordingly the

case was never previously referred to trial as noncapital and

the military judge was without jurisdiction to receive his

pleas or adjudge a sentence.

Conclusion

The Court of Appeals’ decision thwarts the

Constitution’s separation of powers scheme, the clear intent

of Congress, and historic military practice that the authority

and discretion of a general courts-martial to lawfully adjudge

a sentence, including the death penalty, may not be restricted

except by the Constitution, Congress or the President acting

pursuant to his legislative appointment under Art. 56, UCM].

The Court of Appeals: decision also thwarts the plain

language of Art. 18, UCMJ, and clear intent of Congress,

that servicemembers charged with capital offenses may not

waive their rights to plead not guilty or forgo a trial by

members while under the threat of a capital referral or in

return for waiving those rights.

Contrary to the opinion of the Court of Appeals, there

is no “common sense”"® exception to the limits Congress has

expressly placed on the jurisdiction of courts-martial. Cf

Dynes v. Hoover, 61 U.S. 65, 81 (1857). Courts-martial

remain ephemeral creatures of statute and cannot obtain

jurisdiction over the subject-matter or person unless provided

for in the statute, even with the consent of the defendant.

McClaughry v. Deming, 186 U.S. at 65. This Court had

occasion to reaffirm this principle most recently with regard

'© United States v. Fricke, 53 M.J. at 154.

to the jurisdiction of the Court of Appeals for the Armed

Forces. See Clinton v. Goldsmith, 526 U.S. 529, 534 (1999).

This year the United States celebrates the 50th

anniversary of the enactment of the Uniform Code of

Military Justice. 50 M.J. LxXI-Lxill. This petition for review

provides an auspicious opportunity to reaffirm Congress’

precedence in structuring the military justice system and the

proper role of the Court of Appeals in that system.

Wherefore, this petition for a writ of certiorari should

be granted.

Respectfully submitted,

MICHAEL J. WENTWORTH

Lieutenant Commander

Judge Advocate General’s Corps

U.S. Navy

Counsel of Record

Navy-Marine Corps Appellate

Review Activity

716 Sicard St. SE, Suite. 1000

Washington Navy Yard, DC 20347

(202) 433-4161

September 2000

Appendix A

United States v. Fricke, 53 M.J. 149 (2000)

UNITED STATES, Appellee

Michael W. FRICKE, Lieutenant Commander

U.S. Navy, Appellant

No. 98-0783

Crim. App. No. 96-1293

United States Court of Appeals for the Armed Forces

Argued December 10, 1999

Decided July 5, 2000 :

SULLIVAN, J., delivered the opinion of the Court, in which

EFFRON, J., and EVERETT, S.J., joined. CRAWFORD,

C.J., and GIERKE, J., each filed an opinion concurring in

part and dissenting in part.

Counsel

For Appellant: Alison Ruttenberg (argued); Major Dale

Anderson, USMC (on brief).

For Appellee: Lieutenant Janice K. O'Grady, JAGC, USNR

(argued); Colonel Kevin M. Sandkuhler, USMC, and

Commander Eugene E. Irvin, USN (on brief).

Military Judge: Craig L. Carver

This opinion is subject to editorial correction before

publication.

Judge SULLIVAN delivered the opinion of the Court.

Appellant was tried at the Naval Legal Service Office,

Norfolk, Virginia, by a general court-martial composed of a

military judge sitting alone. Pursuant to his pleas, he was

found guilty of premeditated murder, in violation of Article

118, Uniform Code of Military Justice, 10 USC § 918. On

August 30, 1994, appellant was sentenced to a dismissal,

confinement for life, total forfeitures, a fine of $100,000, and

an additional 2 years’ confinement if the fine was not paid.

On June 11, 1996, the convening authority approved the

sentence as adjudged, except, pursuant to a_ pretrial

agreement, he suspended confinement exceeding 30 years

and all forfeitures and fines for a period of 10 years. The

Court of Criminal Appeals affirmed the findings and

sentence on March 10, 1998. 48 MJ 547.

On June 4, 1999, we granted review of the following

issues:

I. WHETHER THE NAVY-MARINE CORPS COURT

OF CRIMINAL APPEALS ERRED IN FINDING

THAT APPELLANT IS NOT ENTITLED TO

ADDITIONAL ADMINISTRATIVE TIME CREDIT

FOR HAVING BEEN ILLEGALLY CONFINED

PRIOR TO ~ TRIAL, AND ADDITIONAL

ADMINISTRATIVE TIME CREDIT FOR HAVING

BEEN SUBJECTED TO UNLAWFUL PRETRIAL

PUNISHMENT IN VIOLATION OF ARTICLES 13

AND 55, UCMJ.

Il. WHETHER THE NAVY-MARINE CORPS COURT

OF CRIMINAL APPEALS ERRED IN FINDING

THAT APPELLANT’S GUILTY PLEA IS NOT VOID

IN VIOLATION OF ARTICLE 45, UCMJ, IN THAT

APPELLANT PLEADED GUILTY TO A CAPITAL

OFFENSE AND THE GENERAL COURT-MARTIAL

OF THE KIND SPECIFIED IN 10 USC SECTION

816(1)((B) WAS WITHOUT JURISDICTION TO

CONVICT APPELLANT BASED UPON THIS

IMPROVIDENT PLEA.

We hold against appellant on Issue II. On Issue I, we

remand appellant’s case for a DuBay' hearing on his post-

trial claim of unlawful punishment prior to trial. Article 13,

UCMJ, 10 USC § 813; see United States v. Ginn, 47 MJ 236

(1997); cf United States v. Combs, 47 MJ 330 (1997); see

generally McMillian v. Johnson, 88 F.3d 1554, 1564-65

(11th Cir. 1996).

(A)

Facts

Appellant was a 38-year old Lieutenant Commander with

17 years of naval service at the time of the offense, and he

was assigned to NAS Oceana, Virginia Beach, Virginia.

About sunset on the evening of May 13, 1988, appellant's 31-

' United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).

year-old wife, Roxanne, was shot and killed as she entered

her vehicle after shopping at a Farm Fresh supermarket in

Virginia Beach. An assailant approached her car, stole her

Purse, and shot her twice with a handgun. The crime

remained unsolved until October 1993, at which time-

appellant was arrested.

Lamar Brunson, who had served in the Navy with

appellant, informed the Norfolk police that appellant had

hired a hit man to kill his wife. The hit man was paid $5,000

shortly after the murder and had been promised a total of

$25,000. Appellant paid him an additional $8,000 sometime

later. Shortly before his wife's death, appellant had secured a

$100,000 term life insurance policy on his wife's life. She

already had an existing life insurance policy payable in the

amount of $25,000. Appellant was the beneficiary on both

policies.

Appellant was kept in pretrial confinement for 326 days.

He alleges that during this period, he was housed in a 6-feet

by 8-feet cell within the Disciplinary Segregation Unit.

According to an affidavit which appellant submitted with his

post-trial submissions, he was kept there 23 hours a day, was

fed in his cell, and was not allowed to talk to other prisoners.

He claims he was required to sit at a small school-like desk

from 4:30 a.m. to 10:00 p.m. each day. He was not allowed

to sit or lie on his bunk or to sleep. He was only allowed to

read the Bible or some other Christian literature.

Appellant initially entered a plea of not guilty to a

premeditated murder charge but changed his plea to guilty

after the conclusion of the Government’s case. At that time,

he secured a pretrial agreement from the convening

authority. As part of the agreement, the convening authority

promised to withdraw the previous capital referral if

appellant successfully completed his providence inquiry to

the charged offense. The following exchange between the

military judge and trial counsel took place before appellant’s

plea was entered:

MJ: At this time, trial counsel, you have an

announcement to make regarding the pretrial agreement

and the capital referral?

TC: Yes, sir. Sir, I’ve been authorized by the convening

authority that this General Court-Martial’s now been

referred noncapital. That referral decision is conditioned

upon your acceptance of a plea of guilty from the accused

to the Charge and Specification, as well as the pretrial

agreement in this case.

MJ: Very well. Commander Fricke, because the

Government has withdrawn the capital referral at this

time, that gives you a different option regarding forum

election. ... .

(R. at 1392).

After appellant entered his guilty plea, the following

colloquy occurred:

MJ: And, defense counsel, what advice have you given

the accused as to the maximum punishment for the

offense of which he’s offered to plead guilty?

IMC: Sir, I’ve advised Lieutenant Commander Fricke

that the maximum punishment authorized in this case is:

Confinement for life; forfeiture of all pay and

allowances; a fine; loss of all lineal numbers and

seniority; and dismissal from the naval service.

MJ: Commander Fricke, you have been correctly advised

of the maximum punishment. On your plea of guilty

alone, you could receive:

A dismissal;

Confinement for life;

Total forfeiture of all pay and

allowances;

A fine; and

Loss of all numbers, seniority or lineal

position in the Navy.

MJ: Do you understand that?

ACCUSED: Yes, sir.

(R. at 1395) (emphasis added).

After his trial, appellant submitted two affidavits to the

appellate court below and made a claim for sentence credit

based on illegal pretrial punishments. One was his affidavit,

and the other was that of Major Bart Larsen, who was housed

in the same facility as appellant during appellant’s

confinement, but as a sentenced prisoner. Appellant alleged,

and Major Larsen corroborated, various conditions endured

by appellant during his pretrial confinement and that they

were told these conditions were imposed in an effort on the

part of Brg authorities to produce a confession from

appellant.

The Government, in response to appellant’s claims of

illegal pretrial confinement and unlawful _ pretrial

punishment, submitted an affidavit of the Director of

Corrections at the Norfolk Naval Brig to the court below.

Based solely on these three affidavits, the court below

rejected appellant’s claims, relying on this Court’s decision

in United States v. Ginn, 47 MJ 236 (1997). It asserted that

“[mJost of the ‘facts alleged in [appellant’s affidavits] . . .

would not result in relief even if any factual dispute were

resolved in appellant’s favor[.]’” It also said, "Under these

circumstances [two affidavits from appellant 3 years apart]

‘the appellate filings and the record as a whole

“compellingly demonstrate” the improbability’ of the

remainder of appellant’s affidavits.” United States v. Fricke,

48 MJ at 550, quoting United States v. Ginn, 47 MJ at 248.

Judge Leo dissented, reasoning that “there is no basis in the

appellate filings or the record as a whole to support the

majority’s finding that the improbability of appellant’s

factual assertions has been ‘compellingly demonstrated’ on

this claim of pretrial punishment.” Id. at 551.

Appellant’s affidavit, as noted above, recounted his belief

as to why he was subjected to these “horrific and onerous

conditions” of pretrial confinement. He stated in his affidavit

of June 1995:

The Government's intent was clear and summed up by

Senior Chief Jacobs, the senior counselor assigned to the

Naval Brig and the counselor assigned to me during my

confinement there. Senior Chief Jacobs told me on a

number of occasions that the Government would keep me

‘locked down until they broke’ me. His comments to me

are documented in the enclosed statement of Major Bart

Larsen, an Air Force Officer who was confined a portion

of the time in the Brig while I was there. The Senior

Chief was completing his second, three-year tour of duty

at the Naval Brig and was completing his Bachelors

Degree in Criminology. He was no rookie to the manner

in which the Government operates and spoke from

extensive experience and training.

* * *

As previously mentioned, the Government’s intent of

the manner in which I was confined was aptly stated by

Senior Chief Jacobs, the senior counselor at the Brig. He

stated on many occasions it was common for the military

to keep a pre-trial inmate locked down in order to break

them and get them to confess.

(Emphasis added.)

Appellant also submitted an affidavit dated April 1995

from another prisoner, Major Bart Larsen. He described the

conditions of confinement similar to appellant’s affidavit and

he further stated:

We were housed in adjacent cells even though I was

an adjudged prisoner and LCDR Fricke was in pretrial

confinement. We had the same counselor, Senior Chief

Jacobs, the senior counselor at the Brig, who often talked

to us together. Senior Chief Jacobs was on his second,

three- year tour of duty at the Norfolk Naval Brig. On

several occasions I heard him state that many times the

military would hold personnel in arduous pretrial

confinement for a long period of time to ‘break them’

into confessing. He also said that LCDR Fricke "held the

brig record for being in the block longer than any

previous prisoner.”

(Emphasis added.)

The Government, in response, submitted an affidavit from

the prison administrator of the Naval Brig where appellant

was held in pretrial confinement. It stated:

1. My name is Ronnie C. Askew. I am the Director of

Corrections at Naval Brig, Norfolk, Virginia. I have been

assigned at this facility since April 1980 and was serving

in this position during the pretrial confinement of LCDR

Fricke [sic] have personal knowledge of the conditions of

his confinement. The following statements are based

upon current memory.

2. All individuals confined are first assigned to 2 one

person cell measuring approximately 6 feet ‘vide, 8 feet

deep, and 10 feet high for a period of observation and

custody and security classification. They are not required

to stay in this cell at all times and are removed to visit

their counselor, use the phone, purchase health and

comfort items, go to the barber shop and medical if

needed. Due to the requirement to house officers separate

to the extent possible from enlisted prisoners, LCDR

Fricke was assigned to either cell block A or B during his

confinement period. During the time frame that LCDR

Fricke was confined at this facility, officers were housed

in the cell block area in order to maintain separation from

enlisted: prisoners. All cells at this facility are designed

the same, no cell or cell block is designated a specific

status. The difference between special quarters and

disciplinary segregation is based on what items the

prisoner is allowed to have in his cell. Disciplinary

Segregation also results in the loss of all privileges.

10a

LCDR Fricke was never placed in _ disciplinary

segregation and was afforded all privileges possible. In

order for officer prisoners to participate in programs with

enlisted members the officer is required to submit a

request in writing and state that he waives his right of

separation from enlisted. To my knowledge, LCDR

Fricke never made such a request nor did he waive his

right of separation. I have attached copies of the daily

routine for officers as contained in

NAVBRIGNORVAINST 5000.1B (revised Oct 96 but in

effect during LCDR Fricke's confinement period), if

LCDR Fricke did not watch TV or read other than the

Bible, it must have been by personal choice.

3. In regards to the use of restraining devices, LCDR

Fricke was not escorted outside the Brig compound by

Brig staff. The use of restraints would have been a

decision of the Naval Base Police Department who

provided escorts.

4. In order to prevent injury to the prisoner or others,

chief petty officer and officer prisoners are not allowed to

wear ribbons or collar devices at any time inside the Brig.

(Emphasis added.)

lla

(B)

Validity of Guilty Plea

(Granted Issue II)

The first issue we will address in this case is Assigned ”

Issue II. Appellant asks that we set aside his guilty plea to

premeditated murder and his noncapital sentence for two

reasons. First, he asserts that his plea of guilty in a case

referred as capital was “void” under Article 45(b), UCMJ,

10 USC § 845(b).* Second, he asserts that the military judge

had no jurisdiction to accept a plea of guilty to this offense in

a case referred as capital. Article 18, UCMJ, 10 USC § 818.

We disagree.

The factual premise of appellant’s argument is that his

case was referred capital at the time his plea of guilty to

premeditated murder was proferred and accepted by the

military judge. In his final brief, he recognizes that the

convening authority had agreed to withdraw the case as

capital, if his plea of guilty was accepted by the military

judge. Moreover, he recognizes that the military judge did

? Article 45, Uniform Code of Military Justice, states:

(b) A plea of guilty by the accused may not be received to any

charge or specification alleging an offense for which the death

penalty may be adjudged.

* Article 18, UCMJ, states:

... However, a general court-martial of the kind specified in section

816(1)(B) of this title (Article 16(1)(B)) shall not have jurisdiction

to try any person for any offense for which the death penalty may be

adjudged unless the case has been previously referred to trial as a

noncapital case.

12a

indeed accept his guilty plea. Nevertheless, he asserts:

However, there is nothing in the record to show that the

convening authority actually withdrew the referral as a

capital case and re-referred it as a noncapital case. In the

absence in the record of any paperwork by the convening

authority referring the case as noncapital, the case

remained a capital case throughout all the proceedings,

including the guilty plea and sentencing phases.

Therefore, at all times during the trial until sentence was

announced, the appellant faced the death penalty, and in

fact, a death qualified panel remained on standby to try

him for his life until the start of the pre-sentencing

hearing.

Final Brief at 34-35.

We are not persuaded by appellant’s statutory arguments

for several reasons. First, he has cited no controlling

authority for his assertion that “paperwork by the convening

authority referring the case as noncapital” was required. See

United States v. King, 28 MJ 397, 399 (CMA 1989); RCM

601(e)(1), Discussion, Manual for Courts-Martial, United

States (1994 ed.) (nonbinding comments of drafters of

Manual generally suggesting “[a]ny special instructions

must be stated in the referral indorsement”’ ); cf. RCM 103(2)

(no express requirement that noncapital referral be stated in

instruction that is written). Second, his argument ignores the

fact that the military judge, without objection by the parties

in this case, acknowledged the noncapital referral of his case

on the record prior to the acceptance of his guilty plea. (R.

1392). See United States v. Clark, 35 MJ 432, 433 n.1

(CMA 1992); cf. United States v. McFarlane, 8 USCMA 96,

23 CMR 320 (1957). Finally, the failure to reduce the re-

13a

referral to writing (not the re-referral itself) was technical in

nature and did not deprive appellant of the essential

protections of the above-noted statutes. See United States v.

Stinson, 34 MJ 233, 238 (CMA 1992), citing United States v.

Gebhart, 34 MJ 189 (CMA 1992), and United States v. Jette,

25 MJ 16 (CMA 1987). Clearly, our case law has recognized

that common sense must prevail in these circumstances. See

United States v. Yates, 28 MJ 60, 63 (CMA 1989).

Therefore, appellant loses on Issue II.

(C)

Pretrial Punishment

(Granted Issue I)

The other issue raised in this case concerns appellant's

post-trial claim that he was unlawfully placed in pretrial

confinement and unlawfully punished while in that status.

His initial contention is that, in light of his exemplary service

performance, he should not have been confined solely on the

basis of an allegation of a 5-year-old murder. See RCM

305(h)(2)(B)(iii).* His second contention is that prison

authorities improperly subjected him to excessively arduous

and inhumane conditions of pretrial confinement, not placed

on other pretrial confinees, in order to coerce or break him

into confessing. He requests “credit of five-for-one days for

the 326 days that he spent in pretrial confinement.” Final

Brief at 13.

* We find no merit to this claim. See generally United States v. Gaither,

45 MJ 349, 352 (1996) (abuse-of-discretion standard).

14a

Article 13, UCMJ, 10 USC § 813, provides:

§ 813. Art. 13. Punishment prohibited before trial. No

person, while being held for trial, may be subjected to

punishment or penalty other than arrest or confinement

upon the charges pending against him, nor shall the arrest

or confinement imposed upon him be any more rigorous

than the circumstances required to insure his presence,

but he may be subjected to minor punishment during that

period for infractions of discipline.

Absent affirmative waiver of this issue at trial, we have

considered claims under this codal provision raised for the

first time on appeal. United States v. Huffman, 40 MJ 225,

227 (CMA 1994); see United States v. Combs, 47 MJ 330,

333 (1997).°

In United States v. McCarthy, 47 MJ 162, 165 (1997), this

Court recognized that Article 13, UCMJ, prohibits both the

purposeful imposition of punishment on a military accused

prior to court-martial and pretrial confinement conditions

which are more rigorous than the circumstances required to

ensure an accused's presence. Moreover, this Court also

recognized in United States v. Miller, 46 MJ 248, 250

(1997), that the purposeful denial of the constitutional rights

of a servicemember while in pretrial confinement might

constitute illegal pretrial punishment permitting sentence

* In view of appellant's unrebutted assertion that no motion for sentence

credit based on unlawful pretrial punishment was made at his trial on

advice of defense counsel that it could be raised on appeal, we do not

find a knowing and intelligent waiver of this issue. See United States v.

Combs, 47 MJ 331, 333-34 (1997).

lSa

credit. Finally, we have held that the failure to object to a

military magistrate or chain of command is strong evidence

that unlawful pretrial punishment did not occur.® See United

States v. Huffman, supra at 227.

Our first inquiry under these principles is whether

appellant has raised a legal claim which, if true, would entitle

him to relief. See United States v. Ginn, 47 MJ at 244. He

avers, inter alia, that for 326 days he was locked in his cell,

23 hours per day, 15 1/2 of which he was required to sit at a

small wooden desk or stand nearby if he fell asleep at the

desk. A majority of the court below held that the facts

alleged in appellant's affidavits would not result in relief or

were compellingly demonstrated to be improbable. 48 MJ at

550. We disagree.

The conditions alleged above are not “de minimis”

impositions on a pretrial detainee for which the law is not

concerned. See Bell v. Wolfish, 441 US. 520, 539 n.21

(1979), quoting Ingraham yv. Wright, 430 U.S. 651, 674

(1977); see also McClanahan vy. City of Moberly, 35

F.Supp.2d 744, 745-46 (E.D. Mo. 1998) (and cases cited

therein). Instead, they are “genuine privations and hardship

over an extended period of time,” which “might raise

serious questions under the Due Process Clause as to whether

those conditions amounted to punishment.” Bell v. Wolfish,

441 US. at 542; see also Duran v. Elrod, 760 F.2d 756, 759

(7th Cir. 1985); Pippins v. Adams County Jail, 851 F.Supp.

1228, 1232 (C.D. Ill. 1994). In fact, as pointed out by the

dissenting judge below, conditions similar to appellant's

° Appellant's affidavit dated June 1995 clearly indicates that he

repeatedly protested his treatment to Senior Chief Jacobs, the senior

counselor at the Brig.

l6a

alleged pretrial confinement have previously been considered

“far more onerous than would be required to assure

[appellant’s] presence.” 47 MJ at 551 (Leo, J., dissenting),

quoting United States v. Palmiter, 20 MJ 90, 99 (Everett,

C.J., concurring in the result). Finally, appellant’s particular

allegations, corroborated by a second prisoner with direct

knowledge of the conditions of his confinement, were

opposed by post-trial assertions of a prison administrator as

to general prison practices. Cf’ United States v. Combs, supra

(essentially unrebutted case).

In addition, coercing a confession is not a legitimate

governmental objective. See Culombe v. Connecticut, 367

U.S. 568, 584 (1961) (“neither the body nor mind of an

accused may be twisted until he breaks” ) (opinion of

Frankfurter, J.); Bell v. Wolfish, 441 U.S. at 539 (noting that

“if a restriction or condition is not reasonably related to a

legitimate [government] goal . . . a court permissibly may

infer that the purpose of the governmental action is

punishment that may not constitutionally be inflicted upon

detainees qua detainees” ); see generally Block v. Rutherford,

468 U.S. 576, 583-84 (1984). Here, appellant submitted a

post-trial affidavit that the confinement authorities’ intent in

imposing a continuous lockdown on him as a pretrial

detainee was to coerce his confession in violation of his

constitutional rights. See Hamilton v. Lyons, 74 F.3d 99,

103 (Sth Cir. 1996). The prison official's affidavit does not

particularly deny this charge but at least impliedly disputes

such an intent on the part of prison authorities. Cf Rapier v.

Harris, 172 F.3d 999,-1002-03 (7th Cir. 1999) (placing

pretrial detainee in solitary confinement for 270 days

expressly based on objective of maintaining safety of other

inmates and jail personnel found to be legitimate government

purpose). In these circumstances, a factual decision on the

17a

intent of the detention officials is also necessary to decide

whether appellant was subjected to illegal pretrial

punishment. See United States v. Ginn, supra at 245.

The appropriate resolution of this unlawful pretrial

punishment claim is to remand this case for a DuBay hearing.

Id.; see McMillian v. Johnson, 88 F.3d at 1564-65. There, the

record can be fully developed as to the conditions actually

imposed on appellant during his pretrial confinement and the

intent of detention officials in imposing those conditions. See

United States v. Fricke, 48 MJ at 550-51 (Leo, J.,

dissenting); Ginn, 47 MJ 236; Huffman, 40 MJ 225; see also

Bell v. Wolfish, 441 U.S. at 537-39 (for test to determine

whether pretrial confinement constitutes unconstitutional

punishment).

——

(D)

Conclusion

The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to findings but set aside

as to sentence. The record of trial is returned to the Judge

Advocate General of the Navy for further proceedings in

accordance with this opinion and United States v. DuBay, 17

USCMA 147, 37 CMR 411 (1967). After such proceedings

are concluded, the record of trial, along with the military

judge’s findings of fact and conclusions of law, will be

returned to the Court of Criminal Appeals for further review

under Article 66(c), Uniform Code of Military Justice, 10

USC § 866(c)(1994). Thereafter, Article 67(a), UCMJ, 10

USC § 867(a)(1994), will apply.

18a

CRAWFORD, Chief Judge (concurring in part and

dissenting in part):

I agree with the Court’s disposition of Issue II. As to

Issue I, consistent with my views in United States v.

Huffman, 40 MJ 225, 228 (CMA 1994)(Crawford, J.,

dissenting in part and concurring in the result), and United

States v. Combs, 47 MJ 330, 334 (1997)(Crawford, J.,

dissenting), | would hold that appellant has waived his claim

concerning unlawful pretrial punishment by failing to raise

the matter before either the magistrate or the military judge.

Even though I would dispose of Issue I by applying

waiver, I find that appellant’s failure to complain is “strong

evidence” that he was not punished in violation of Article

13. Huffman, supra at 227; see United States v. James, 28 MJ

214 (CMA 1989); United States v. Palmiter, 20 MJ 90, 97

(CMA 1985).

Appellant spent 326 days in pretrial confinement. He

complained for the first time in June 1995, nearly 1 year after

his court-martial, that he was required to sit at a small

wooden desk within his 6-by-8-foot cell for 15’2 hours per

day, or stand “for hours” should he fall asleep at that desk.

He was not allowed to talk with other prisoners. He was only

permitted to read the Bible or Christian literature by the light

of one 40-watt light bulb, but was prohibited from attending

church services and Bible studies. He was denied the

amenities of sentenced prisoners: access to recreational

facilities and equipment; newspapers; television, radio;

assistance organizations; and rehabilitation programs.

The majority is correct by concluding that if these

allegations are true, appellant would be entitled to relief.

19a

However, unlike the majority, I find that the record, logic,

and common sense together “compellingly demonstrate” the

improbability of the facts alleged by appellant. Cf United

States v. Ginn, 47 MJ 236, 248 (1997).

First, appellant was a 38-year-old Lieutenant Commander

who extensively litigated the necessity for his pretrial

confinement. Yet, if one is to believe him, appellant failed to

mention these “horrific and onerous” pretrial conditions

either to the magistrate or the military judge. Second, the

conditions which appellant claims he had to endure are

strikingly similar to those found to have existed at the

Charleston Navy Brig, and which we found to be a violation

of Article 13, in United States v. Palmiter, supra. Either the

Department of the Navy has decided to flout the authority of

this Court and reinstate pretrial confinement conditions that

we condemned, or appellant’s recitation ef his pretrial

confinement conditions is other than reality. I suggest the

latter. Accordingly, I would affirm the Court of Criminal

Appeals decision. wi

GIERKE, Judge (concurring in part and dissenting in part):

I agree with the majority’s resolution of Issue II. In my

view, Issue I was waived. United States v. Huffman, 40 MJ

225, 228-29 (CMA 1994).

This is one more case demonstrating the wisdom of the

waiver rule in RCM 905(e). Appellant is not an

inexperienced sailor. As the majority notes, at the time of the

alleged offenses in 1988, he was 38-year-old commissioned

officer with 17 years of service. By the time he was tried in

1994, he was in his 40s and retirement eligible. He did not

find his conan of pretrial confinement sufficiently

20a

onerous to challenge them at trial. In my view, the result of

the majority opinion is to allow sandbagging by this

appellant, and to leave the court below with a Hobson’s

choice of investigating a stale, 6-year-old allegation or giving

appellant a windfall.

As a final note, I believe that Article 13 issues in future

guilty-plea cases could be resolved easily in a manner

consistent with both the majority and minority opinions in

Huffman, if military judges would conclude their plea

inquiry with a question whether there is any claim of

unlawful pretrial punishment.

2la

Appendix B

United States v. Fricke, 48 M.J. 547 (1998)

IN THE U.S. NAVY-MARINE CORPS COURT OF

CRIMINAL APPEALS

WASHINGTON NAVY YARD

WASHINGTON D.C.

BEFORE

E.D. CLARK LARRY D. WYNNE R.B. LEO

UNITED STATES

Michael W. FRICKE, 265-27-0767

Lieutenant Commander (O-4), U.S. Navy

PUBLISH

NMCM 96 01293 Decided 10 March 1998

Sentence adjudged 30 August 1994. Military Judge: C. L.

Carver. Review pursuant to Article 66(c), UCMJ, of General

Court-Martial convened by Commander, Naval Base,

Norfolk, VA. |

LOUIS B. FONT, Civilian Defense Counsel

LT R.A. RICE Jr., JAGC, USNR, Appellate Defense

Counsel

LT E. RUBIELLA, JAGC, USNR, Appellate Defense

Counsel

22a

LCDR CHRISTIAN L. REISMEIER, JAGC, USN,

Appellate Government Counsel

WYNNE, Judge:

We have examined the record of trial, the

assignments of error,’ and the Government's response. The

findings and sentence are correct in law and fact and no error

materially prejudicial to the substantial rights of the appellant

' |. APPELLANT'S GUILTY PLEA IS VOID IN VIOLATION OF

ARTICLE 45, UCMJ, AND R.C.M. 910 IN THAT APPELLANT

PLEADED GUILTY TO A CAPITAL OFFENSE.

Il. APPELLANT'S TRIAL LACKED JURISDICTION BECAUSE

APPELLANT WAS TRIED BEFORE A JUDGE ALONE IN A CASE FOR

WHICH THE DEATH PENALTY COULD HAVE BEEN ADJUDGED.

Ill. APPELLANT IS ENTITLED TO ADDITIONAL

ADMINISTRATIVE TIME CREDIT FOR HAVING BEEN ILLEGALLY

CONFINED PRIOR TO TRIAL, AND ADDITIONAL ADMINISTRATIVE

TIME CREDIT FOR HAVING BEEN SUBJECTED TO INHUMANE

PRETRIAL PRISON CONDITIONS FOR 326 DAYS.

IV. THE MILITARY JUDGE ERRED IN FAILING TO SUPPRESS

WIRETRAP EVIDENCE. (Footnote omitted.)

V. ASSISTANT TRIAL COUNSEL ENGAGED IN MISCONDUCT

AND SHOULD HAVE BEEN DISQUALIFIED BY THE MILITARY

JUDGE. (Footnote omitted.)

VI. THE CONVENING AUTHORITY ILLEGALLY REFERRED

THE CASE TO TRIAL ON THE BASIS OF INFORMATION WHICH HE

WAS PROVIDED OUTSIDE THE RECORD OF THE ARTICLE 32,

UCMJ, INVESTIGATION. (Footnote omitted.)

VII. APPELLANT'S TRIAL DEFENSE COUNSEL WERE

INEFFECTIVE. (Footnote omitted.)

23a

was committed. We affirm the findings and sentence; our

reasoning is set out below.

A Summary of the Case and the Appellant's Claims

In accordance with his pleas, the appellant was

convicted of the premeditated murder of his wife in violation

of Article 118, Uniform Code of Military Justice, 10 U.S.C.

§ 918 (1994) [hereinafter UCMJ]. The appellant entered his

pleas pursuant to a pretrial agreement and was sentenced by

the military judge under the provisions of that agreement.

See United States v. Burnell, 40 M.J. 175 (C.M.A. 1994).

The appellant's case was originally referred to trial

without special instructions precluding the court from

adjudging the death penalty. See RULES FOR COURTS-

MARTIAL 103, 601, 1003, and 1004, MANUAL FOR CouRTS-

MARTIAL, UNITED STATES (1995 ed.) [hereinafter R.C.M.].

In the pretrial agreement the convening authority agreed to

“withdraw the capital referral” and suspend all confinement

in excess of 30 years. In return, the appellant agreed to plead

guilty and be sentenced by the military judge. Appellate

Exhibits CCXII and CCXIII.? i

The appellant now contends that his plea of guilty

>It might have been better, semantically, if the pretrial agreement had

required the convening authority to forward "proper instructions" providing

that a sentence of death could not be adjudged rather than agreeing to withdraw

the capital referral. See R.C.M. 601(e(1). We are, however, sympathetic to

the parties’ drafting burden. The confusion may be bor from the inconsistent

use of "[]capital case" and cases in which "death [] may be adjudged”. For

example, compare Art. 18, UCMJ, 10 U.S.C. §818, and R.C.M. 201, with Art.

45, UCMJ, 10 U.S.C. §845, and R.C.M. 1004. We cut this Gordian knot by

deciding the case on the merits of the agreement.

24a

and the subsequent trial by military judge alone violated

Articles 18 and 45(b), UCMJ, 10 U.S.C. §§ 818 and 845(b).

The appellant also says that even if his pleas were

valid he was punished prior to trial in violation of Article 13,

UCM5J, 10 U.S.C. § 813, and that he ought to receive

appropriate credit against his sentence. See Art. 13, UCMJ,

10 U.S.C. § 813; United States v. Suzuki, 14 M.J. 491

(C.M.A. 1983). We consider this claim at some length, but

the appellant raises several spurious claims which we reject

summarily as having no basis in law or fact.

The Legality of Appellant's Pleas of Guilty and his Trial

by Military Judge Alone, Assignments of Error I and II

Articles 18 and 45(b) of the Uniform Code of

Military Justice, 10 U.S.C. §§ 818 and 845(b), taken in

tandem, require a full trial by members before the death

penalty may be adjudged. The accused can, on the other

hand, plead guilty to a lesser-included offense even when

death may be adjudged for the greater offense charged. H.R.

2498, 81st Cong. (1949), reprinted in INDEX AND

LEGISLATIVE HISTORY: UNIFORM CODE OF MILITARY

JUSTICE 1056-57 (1950); S. REP. No. 1601 (1968), reprinted

~ in 1968 U.S.C.C.A.N. 4501, 4505.

A plea of guilty and the imposition of sentence by a

military judge are not precluded by Article 18 or 45(b),

UCMJ, 10 U.S.C. § 818 or 845(b), as long as a sentence of

death may not be adjudged based on that plea and those

proceedings. Compare United States v. Wheeler, 10 C.M.A.

646, 28 C.M.R. 212 (1959)(plea to premeditated murder

valid if death may not be adjudged), with United States v.

Dock, 28 M.J. 117 (C.M.A. 1989)(pleas invalid and death

25a

adjudged).

In this case no sentence of death could be adjudged,

but the appellant asserts that his case is different because his

pleas of guilty were entered near the end of the Government's

case-in-chief and under the specter of the death penalty.

“[A] plea of guilty is not invalid merely because

entered to avoid the possibility of a death penalty." Brady v.

United States, 397 U.S. 742, 755 (1970). As to the unusual

timing, the appellant's "pleas of guilty ... [were] no more

improperly compelled than is the decision . . . at trial that he

must take the stand or face certain conviction.” /d. at 750.

The accused chooses if and then when he will attempt

to enter a plea of guilty, but after conviction, absent unlawful

coercion, the accused is bound by his plea. The appellant

does not allege that his statements are untrue. The appellant

does not claim that the facts he admitted fail to constitute the

crime of premeditated murder. We will not set aside his

valid plea of guilty. See generally United States v. Vega, 39

M.J. 79, 80-81 (C.M.A. 1994)(citing United States v. Prater,

32 M.J. 433 (C.M.A. 1991); United States v. Logan, 22

C.M.A. 349, 351, 47 C.M.R. 1, 3 (1973).

The Article 13, Pretrial-Punishment Claim

The appellant asserts that he was punished prior to

trial in violation of Article 13, UCMJ, 10 U.S.C. § 813, and

that his trial defense counsel “failed to litigate [the issue] at

trial.” Assignment of Errors and Brief on Behalf of

Appellant at 29. The paradigm created in United States v .

Ginn, 47 M.J. 236 (1997), is applicable to appellant's

pretrial-punishment claim.

26a

The appellant was a field-grade officer lawfully

confined prior to trial for the most heinous of crimes. The

conditions of appellant's confinement were no doubt arduous,

but extensive restrictions on the accused's personal freedom

are inherent in the rational imposition of confinement

separate from sentenced prisoners. See generally United

States v. Huffman, 40 M.J. 225 (C.M.A. 1994). Most of the

“facts alleged in [appellant's affidavits] . . . would not result

in relief even if any factual dispute were resolved in

appellant's favor[.]” Ginn, 47 M.J. at 248.

The appellant made his first complaint regarding the

conditions of his confinement nearly a year after his trial.

Petition for Clemency of 12 June 1995. The affidavit the

appellant submitted to this court, 3 years later, describes in

much greater detail the conditions of his pretrial

confinement. Under these circumstances “the appellate _

filings and the record as a whole 'compellingly demonstrate’

the improbability” of the remainder of the appellant's

affidavits. Ginn, 47 M.J. at 248.

The Appellant's Other Claims

We summarily find that the appellant's remaining

claims are without merit:

The appellant personally and affirmatively waived any

issue regarding the admissibility of evidence. Record at

1399. Assignment of Error IV has no merit.

The trial defense team objected to testimony regarding

the photographic identification of someone other than the

accused. This out-of-court identification was never

offered or admitted. Record at 591. Assignment of Error

V has no merit.

The convening authority properly referred this case to

trial. R.C.M. 601. Assignment of Error VI has no merit.

The appellant's “claim of ineffective representation

contradicts a matter that is within the record of a guilty

plea” and is without merit. Ginn, 47 M.J. at 248.

Assignment of Error VII has no merit...

Accordingly, the findings of guilty and the sentence

are affirmed.

LARRY D. WYNNE

Senior Judge CLARK concurs.

E.D. CLARK :

LEO, Judge (dissenting):

I dissent from the majority's cursory dismissal of the

appellant's claim of pretrial punishment. I believe that the

appellant has put forth a sufficient claim to warrant a remand

of this issue for a DuBay proceeding.

While the appellant's failure to raise a claim of

pretrial punishment at the trial level does not waive the issue,

it is “strong evidence that [he was] not being punished in

violation of Article 13[, UCMJ, 10 U.S.C. § 813].” Huffman,

28a

40 M.J. at 227. The untimeliness of the claim, therefore, is

but one factor--albeit a significant factor--which must be

considered with all other evidence before this court.

Unlike Huffman, however, there is no evidence in this

record to assist us in determining whether the challenged

conditions were intended as punishment or were “reasonably

related to a legitimate goal.” /d. at 227 (quoting Bell v.

Wolfish, 441 U.S. 520, 539 (1979)). What we have, instead,

are conflicting post-trial affidavits submitted by the appellant

and the Government.

Our superior court recently held that “Article 66(c)[,

UCMSJ, 10 U.S.C. § 866(c)] does not authorize a Court of

Criminal Appeals to decide disputed questions of fact

pertaining to a post-trial claim, solely or in part on the basis

of conflicting affidavits submitted by the parties.” Ginn, 47

M.J. at 243.

Accordingly, we must initially look to the appellant's

supporting affidavits to determine whether they assert

“specific facts” or merely “speculative or conclusory

observations.” If the affidavits are factually adequate on

their face, we then look to the appellate filings and the record

as a whole to determine if they “compellingly demonstrate

‘the improbability of those facts’” such that we may discount

the appellant's factual assertions and decide the legal issue

without remand to the trial level for a DuBay proceeding. Id.

at 248.

In this instance, the appellant's affidavits are

compelling in their specificity regarding the conditions of his

pretrial confinement. He alleges that he was kept in a

lockdown status with confined prisoners who were in

29a

disciplinary segregation for 326 days, wherein he was (1)

confined to a small 6x8 cell for 23 hours a day, (2) required

to sit at a small school-like desk from 0430 to 2200 hours

each day, (3) allowed very limited access to reading material,

and (4) was not allowed to participate in any prison

programs. He additionally claims that his brig counselor told

him that he was kept in these conditions to break him and

make him confess. The appellant's assertions are

substantially corroborated by the supporting affidavit of

Major L, a fellow-officer who was incarcerated in the

adjoining cell during a portion of the appellant's pretrial

confinement.

The appellant, in his affidavits, also attempts to rebut

the untimeliness of his claim by asserting that he wanted to

raise the issue at trial, but instead was told by the members

of his trial defense team that he should raise it on appeal.

Attachment A to LCDR Fricke affidavit of 22 July 1997, at

1, Motion to Attach Documents of 22 August 1997. We

have nothing from either of the trial defense counsel

confirming or denying the appellant's assertion. However, if

true, it could significantly lessen the evidentiary value of not

raising this issue at trial.

The terms and conditions of confinement will not be

dictated by an accused, but rather “should always be left up

to the correctional facility commanders and the respective

services.” United States v. Palmiter, 20 M.J..90, 96 (C.M.A.

1985). Nonetheless, Chief Judge Everett, in his concurrence,

opined that some of the same conditions alleged by the

appellant were “far more onerous than would be required to

assure the detainee's presence and so they violated Article

13.” Td. at 99.

30a

The Government's sole response is an affidavit from

the Director of Corrections at Naval Brig Norfolk, which

attempts to rebut the appellant's claims with generalities and

conclusory observations like “LCDR Fricke ... was afforded

all privileges possible" and "if LCDR Fricke did not watch

TV or read other than the Bible, it must have been by

personal choice.” The off-handed manner of this response is

not what I expect to see from the Government in addressing

an important issue before this court. It only underscores the

need to remand this case for a post-trial evidentiary hearing.

In summary, there is no basis in the appellate filings

or the record as a whole to support the majority's finding that

the improbability of the appellant's factual assertions has

been “compellingly demonstrated” on this claim of pretrial

punishment. Moreover, if the factual assertions of the

appellant were borne out in his favor at a Dubay proceeding,

I believe he woula be entitled to some meaningful relief.

R.B. LEO

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