Plea agreement waivers

Navy Times reports the NMCCA decision in United States v. Saugen.  “Ensign Joseph P. Saugen, 26, remains in San Diego’s Naval Consolidated Brig Miramar serving a three-year sentence after pleading guilty to two specifications of possessing child pornography and another for distributing the illicit videos.”

In Saugen, the Appellant executed a pretrial agreement.  One of the standard terms in that agreement was,

to waive all motions except those that are otherwise nonwaivable pursuant to [RULE FOR COURTS-MARTIAL] 705(c)(1)(B).  I have not been compelled to waive my right to due process, the right to challenge the jurisdiction of the court-martial, the right to a speedy trial, the right to raise the issue of unlawful command influence, or any other motion that cannot be waived.  I have no motions to bring and I am not aware of any motion that was waived pursuant to this provision. [1]

[1] Apparently the Appellant was not told by his defense counsel that a possible multiplicity motion existed and the military judge did not ask about that.  This standard provision is similar to that in United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009).  Appellant made an unconditional guilty plea.

On appeal,

The appellant avers that one of the child pornography possession specifications is a lesser-included offense of the distribution specification and
that the specifications are facially duplicative because they involve the same files downloaded on the same date on the same electronic media. Invoking the Fifth Amendment prohibition against double jeopardy, the appellant asserts that he cannot be convicted of both the facially duplicative lesser-included offense of possession and the greater offense of distribution. [2]

[2] It appears that the issue of combining the two specifications under Quiroz did not come up either.

NMCCA determined that the waiver provision precluded them from deciding the multiplicity question–findings and sentence affirmed.

Compare Saugen and Gladue to United States v. Hardy,  77 M.J. 438 (C.A.A.F. 2018).  In Hardy, the standard motions waiver language was missing.  Some language in Hardy appears to allow a CCA to address the multiplicity issue anyway using its Article 66(c), UCMJ, power to ensure an appropriate sentence, and is consistent with Chin.

Once again we have a case discussing waiver or forfeiture of an issue.  Although as the court notes in Hardy,

The President amended the language of R.C.M. 905(e) in Executive Order No. 13,825. See Exec. Order No. 13,825, 83 Fed.  Reg. 9889 (Mar. 8, 2018) (effective Jan. 1, 2019). The amendment specifies that a failure to raise an objection under R.C.M. 905(b) “forfeits” the objection “absent an affirmative waiver.” This amendment is not yet in effect and will not apply to cases in which charges were referred to trial prior to the effective date.

To be determined is whether the standard language is a sufficient “affirmative waiver” or whether something more is needed to have a waiver.  One might expect a change to the Benchbook to account for the upcoming change.

Note to DC.  You are not precluded by the PTA language from arguing to the military judge that she may herself take into account when determining an appropriate sentence that the two specifications should be punished as one.  There is a vast difference between a legal ruling on multiplicity–the maximum potential sentence and arguing that the specifications should be looked at as one.  And such an argument is not in violation of the PTA, that is my position, you are merely putting the facts and circumstances into context and perspective.

Compare further United States v. Chin, 75 M.J. 220 (C.A.A.F. 2016).  The Appellant had the standard motions waiver provision in his pretrial agreement.  Regardless, the Air Force CCA pierced the waiver provision and took action on the multiplicity question.  This would be consistent with the language in Saugen.  A possible factor is that the defense counsel at trial told the judge that they’d raise a multiplicity motion but for the PTA waiver language.  As with Hardy and Saugen, there was a split of opinion among the CAAF judges.  I think the point here is that piercing the waiver language is discretionary with the CCA and is consistent with its independent duty to evaluate sentence appropriateness.