United States v. Smead, __ M.J. ___, No. 08-0376/MC (C.A.A.F. July 27, 2009).

Chief Judge Effron wrote for the majority; Judge Ryan, joined by Judge Erdmann, concurred in the judgment.

20 Responses to “CAAF releases opinion in Smead”

  1. Cloudesley Shovell says:

    Wow. That was a long run for a very short “no prejudice” slide.

    I hope SJA’s read and heed with regard to how easy it is to turn a simple guilty plea into a multi-year saga of absolute appellate hell with poorly thought out and poorly drafted PTAs, without thinking about the consequences of various provisions.

    Can anyone think of a good reason why the gov’t would agree to withdraw a charge or spec with prejudice? I can’t, but I’m old and mostly dead.

  2. Anonymous says:

    Why a Dickens’ novel? A short three-page affirmance would have been fine. Did the CAAF judges skip Opinion Writing 101?

  3. Anon says:

    Anon 0658 must be a CCA judge.

  4. Anonymous says:

    No, a CCA judge would have issued a one-line affirmance.

  5. Anon says:

    I’m exhausted after reading that opinion…

  6. Anonymous says:

    CAAF needs another writing lesson from Bryan Garner at its next conference.

  7. Blah says:

    As someone recently said about something else, “We’re here because of what we did.” Don’t write stupid PTAs and “somewhat cryptic” CCA opinions if you don’t want CAAF to sort it all out in a lengthy attempt to make sense of it all.

  8. Anonymous says:

    Admiral Shovell,
    While there is still some mystery surrounding your Emerald, there really isn’t a mystery about the “withdrawal with prejudice” provisions. There is generally some good reason why the Government isn’t going forward with particular Specs – whether it be proof issues, tactics or whatever. Competent defense counsel, will then “offer” their plea bargain knowing that, and to effectuate both finality and jeopardy, insist on the “withdrawal with prejudice” upon sentence announcement.

    Let’s say, that the CA opts not to agree to “withdraw with prejudice,” then the options are, a) hope the defense is dumb enough not to notice; b) proceed to trial on the affected Spec(s) and hope you get past a Motion for a Finding of NG; or c) withdraw the Specification without prejudice before findings – although that may engender some defense litigation.

  9. Anonymous says:

    CAAF should have dismissed this mess as improvidently granted and saved a forest.

  10. John O'Connor says:

    I never agreed to withdraw charges and specs with prejudice as part of a PTA. The practice in my region was for withdrawal to be qwithout prejudice, but to ripen into dismissal with prejudice upon sentencing. I never agreed to that and just agreed to withdrawal without prejudice. I would tell DC we had no intention of pursuing the charges if the guilty pleas held, and I would tell the MJ the same thing if asked. That requires the DC to have some trust in the TC, and for the TC to have some standing with the CA and SJA such that everyone was confident there would be no later prosecution on the diosmissed charges (so long as the pleas held), but that was the deal I offered and everybody was willing to take it.

  11. Anonymous says:

    What IS the holding?

  12. Turnin' n' burnin' says:

    J’OC, that’s exactly how we did it. Never a problem.

  13. Anonymous says:

    I always thought it was stupid to dismiss with prejudice upon announcement of the sentence, but that’s just the way it was done.

    How hard would it be to change it to dismiss with prejudice “upon completion of appellate review?”

    I can’t imagine that we will ever see (or should ever see) dismissal with prejudice upon pronouncement of the sentence again. There is just no need for it, and it could end up being a real windfall for the accused.

  14. Cloudesley Shovell says:

    Anon at 746am hits the nail on the head: “That’s just the way it was done.” One wonders why. And thanks, J’OC and turnin’n’burnin, for verifying that although I am old and mostly dead, I have not yet lost all my marbles (at least the non-emerald ones).

    “We need not concern ourselves with the withdrawal with prejudice-withdrawal without prejudice dichotomy. Suffice it to say that this apparent legalistic phenomenon is wholly unknown to military law except for those who play fast and loose with it in various trial forums.” US v. Cook, 9 MJ 763, 765 (NMCMR 1980) (Michel, J., dissenting). That was 28 years ago, and yet we’re still doing this silly “dismiss without prejudice to ripen into prejudice upon announcement on sentence,” whatever the heck that means. (What statute, R.C.M., or other rule is that tortured construction based upon?)

    Take a look at RCM 705 discussion regarding re-referral of withdrawn charges. Has anyone ever personally experienced a situation where a CA withdrew charges pursuant to a PTA, and then attempted to re-refer those charges even though the PTA was still in force?

    Is anyone aware of any jurisdiction, state or federal, where the government does this “withdraw with prejudice” stuff in exchange for guilty pleas?

  15. John O'Connor says:

    “Has anyone ever personally experienced a situation where a CA withdrew charges pursuant to a PTA, and then attempted to re-refer those charges even though the PTA was still in force?”


    I think it would happen once, and then the TC’s credibility would be so undermined he or she would have trouble cutting deals going forward.

    An important (but oft-overlooked) part of the TC’s job is to build credibility and trust with the CAs and their SJAs. That allows the TC to cut deals more efficiently because in preliminary discussions with the DC, the TC can speak reasonably authoritatively about what deals will and will not fly. There are few things worse for reaching a plea than having the DC submit a PTA that he thinks is going to fly (because the TC is good with it) and then have the DC have to go back and tell the accused that he has to sign a worse deal because the CA/SJA wouldn’t agree to the one the accused was psychologically committed to. It’s a lot more efficient when the TC can state what kind of deal he or she can support (and likely get) and then have the wherewithal to make it fly with the CA/SJA.

  16. Anonymous says:

    How about having the SJA telling you he will support something and then changing HIS mind after you’ve already told your client his Chapter 10 is good to go? That’s worse.

    As is a COJ telling you that he wants to back out of a signed deal, where your client has already been arraigned, pled, done judge alone, and signed a stipulation of fact because he thinks your client “hasn’t begun performance.” (Solely because your deal is four years better than what the co-accused got from the MJ at sentencing).

    Credibility aint what it used to be.

  17. John O'Connor says:

    Well, I imagine those players in the military justice system have disadvantaged themselves in terms of efficiently making deals going forward.

  18. Anonymous says:

    Not really, one remains in his position as SJA, and the other is teaching at the JAG school.

    The problem with the idea of the government being at a disadvantage making deals is, yes the government does need the deals, but the accused often needs them more, and the government knows that.

  19. Anonymous says:

    “How hard would it be to change it to dismiss with prejudice “upon completion of appellate review?””

    Pretty hard Anon 0746 – The defense would have made a Motion for a Finding of NG and that would have been the end of it.

    Historically, at the time of Cook, cited above, Judge Michel’s dissent was on the money. The problem surfaced with the 1984 MCM and RCM 707, which now specifically incorporated the dismissal “with or without prejudice” in the context of Speedy Trial litigation. MJ’s had been granting Speedy Trial dismissal motions and as an end around that problem, RCM 707(d) was promulgated, patterned after the Fed’s Speedy Trial act, 18 USC 3162(a)(1).

    While it may be semantics in the end, there is a procedural differencee between “withdrawal” and “dismissal.” Back then, i.e., 1984, it was pretty much of an ad hoc thing – some commands had the CA “withdraw” the affected Charges/Specs at the time the PTA was approved which was “without” prejudice. But, when an Accused “blew” the Care inquiry, you had to get those charges re-referred, served and absent a waiver, wait the time period before you could proceed to trial.

    So, to get around that delay problem, TC’s were given authority to “dismiss” as part of the PTA process. As a sort of “mission creep” process, probably due to MJ’s exposure to the with or without prejudice in the Speedy Trial Context — at least the Army and AF MJ’s that I practiced before, simply began “dismissing with prejudice” at the time sentence was announced for the administrative convenience of not having to worry about speedy trial issues if the case got sent back for whatever reason.

    However, there are legal reasons for the Defense to insist (and the government to agree) on “dismissal with prejudice,” as part of the PTA. That is in the area of where an accused is charged with violating inter alia Title 18 [or other federal criminal statutes] – a dismissal without prejudice does not protect him/her from being indicted as double jeopardy does not apply. It’s a heck of a lot easier to just “dismiss with prejudice” upon sentence pronouncement, than it is to get the DoJ to sign off on a “non prosecution” letter.

  20. Tami says:

    There were a couple of times when I worked in the appellate division, where the appellant complained his/her guilty plea wasn’t provident because something they had said during the providence inquiry was really a defense (i.e. I went AWOL, but I tried to turn myself in). In those situations, if the appellate courts agree with the appellant, then the accused has not performed on his end (i.e. pleading guilty), and the Government did not get what it bargained for. In that situation, I have suggested that the case be sent back, and that any charges withdrawn AS PART OF THE PTA be resurrected. In that situation, there is no double jeopardy. Take a look at R.C.M. 705(d)(4)(B).

    However, in Smead, it was the Government, not Smead, that failed to uphold its end of the bargain. In this situation, getting to revive charges that had been withdrawn and dismissed w/ prejudice would be a windfall for the Government. The Government does not get to benefit from its own screw-ups. Also, take a look at Article 44(c), UCMJ and R.C.M. 907(b)(2)(C), which discuss when jeopardy attaches.

    Frankly, I think CAAF could have summed up this case with a reference to the Discussion section of R.C.M. 705(b)(2)(C).