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United States v. Rentas: When “Trash” Almost Sank a Plea—And the IAC Claim That Followed

On 30 April 2026, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) issued a per curiam opinion affirming the convictions and sentence in United States v. Rentas, No. 202500082. Lance Corporal Joshua J. Rentas had pleaded guilty at a general court-martial at Camp Foster, Okinawa, to four specifications of possessing child pornography and one specification of distributing child pornography under Article 134, UCMJ. The military judge sentenced him to a dishonorable discharge, 36 months of confinement, total forfeitures, and reduction to E-1. On appeal, Rentas raised two Grostefon issues: improvident pleas based on alleged pressure from counsel during a mid-providence recess, and ineffective assistance of counsel for failing to retain a digital forensic expert. NMCCA rejected both. The opinion offers a textbook walk-through of how providence inquiries work, what an “inconsistency” actually means, and how Strickland prejudice plays out in the guilty-plea context. For service members and any military defense lawyer working a pretrial agreement, it is worth a careful read.

The Facts the Court Cared About

Rentas confessed to NCIS, consented to the search and seizure of his electronic devices, and submitted a “letter of apology” with his proposed plea agreement. Pursuant to that agreement, he pleaded guilty to possessing child pornography on two laptops, an iPhone, and an external hard drive, and to one distribution specification.

During the providence inquiry on Specification 2 (the external hard drive), Rentas told the military judge he had put the hard drive in “the trash can.” Trial counsel called for a recess. Eight minutes later the inquiry resumed. Rentas explained “trash” actually meant a desk drawer “full of a bunch of trash,” that he had transferred the data—including some of the child pornography files—from the hard drive onto a different laptop, and that he planned to eventually get rid of the hard drive. The military judge accepted the pleas and imposed the agreed-upon sentence.

After trial, Rentas filed a declaration alleging that during the recess his trial defense counsel and the trial counsel both told him to “stick to the script” or his plea deal would collapse and he would face “over 50 years of confinement.” NMCCA initially denied his motion to attach the declaration, then denied reconsideration, then on its own reconsidered again and granted the motion. Even with the declaration in the record, the appeal failed.

Issue One: The Providence Inquiry and the “Trash” Problem

The standard of review for accepting a guilty plea is abuse of discretion, with questions of law reviewed de novo. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). Under Article 45, UCMJ, and R.C.M. 910(h)(2), the military judge must reject a plea—or resolve the inconsistency—if the accused sets up matter inconsistent with the plea. The substantial basis test asks whether anything in the record raises a substantial question about the plea.

NMCCA held nothing in the record raised that question for Specification 2. The “trash” comment was not an inconsistency. Rentas explained the desk-drawer-full-of-trash meaning, admitted he transferred the files including the child pornography to another device, and never claimed he was not guilty or that he obtained the files inadvertently. The stipulation of fact had him admitting “exclusive dominion and control” of the hard drive. That is the opposite of an inconsistency. The court distinguished United States v. Hayes, 70 M.J. 454 (C.A.A.F. 2012), and United States v. Phillippe, 63 M.J. 307 (C.A.A.F. 2006): a military judge must dig deeper when the accused raises a possible defense, but mere mitigation or rationalization is not the same thing as a defense. See United States v. Shaw, 64 M.J. 460 (C.A.A.F. 2007).

The recess-pressure allegation got even shorter treatment. Rentas did not argue coercion. The court flatly stated that “it is reasonable for a defense counsel to inform a client of possible and foreseeable consequences if a military judge were to reject a guilty plea as improvident.” Telling a client what the maximum punishment looks like if the deal collapses is not improper pressure—it is candid lawyering. The court also pointed out that Rentas did not challenge providence as to Specifications 1, 3, 4, or 5, but asked that all five findings and the sentence be set aside. NMCCA was not biting.

For background on how the Care inquiry functions and how plea problems develop in the record, see our prior post: Guilty pleas under the UCMJ.

Issue Two: Ineffective Assistance and the Digital Forensic Expert

Rentas’s second claim was that trial defense counsel was ineffective for failing to retain a digital forensic expert who could have explained “the process by which files can be transferred from one device to another without the knowledge or intent of the user.” The court reviewed the claim de novo under Strickland v. Washington, 466 U.S. 668 (1984), and the guilty-plea-specific prejudice standard from Lee v. United States, 582 U.S. 357 (2017): whether there is a reasonable probability that, but for counsel’s errors, the accused would not have pleaded guilty and would have insisted on going to trial.

The opinion did two things that matter for any future Strickland claim in the plea context. First, it presumed reasonable tactical judgment. Rentas had already confessed to NCIS and consented to the searches that produced the devices. Against that record, declining to retain a digital forensic expert was a reasonable strategic call—and there is “significant” evidence to overcome before that presumption breaks. Second, it applied Suarez and Furth. A bare post-trial assertion that the accused would not have pleaded guilty is not enough. The court must look at contemporaneous evidence—the confession, the consent search, the apology letter, the stipulation of fact, the agreed sentence cap—because every appellant has an incentive to retroactively reframe the deal. United States v. Suarez, 86 M.J. 65 (C.A.A.F. 2025); United States v. Furth, 81 M.J. 114 (C.A.A.F. 2021).

The court added a sharp factual finding tucked in a footnote: it did not credit Rentas’s claim that he was unaware files would download onto the hard drive. With that credibility call, the prejudice analysis was over.

What This Opinion Teaches

Several practical points emerge. A providence inquiry is not a verbatim test. The military judge must resolve actual inconsistencies, not chase every mitigating word. Rationalization, minimization, and clarification do not invalidate a plea unless they negate an element or set up a defense. See our discussion of this principle: Providence shines down or upon.

Recess conversations between an accused and defense counsel about the consequences of an improvident plea are normal and lawful. Allegations of “pressure” must show coercion that overrides voluntariness, not just candor about exposure if the deal collapses. A post-trial declaration alone, even if attached to the record, rarely moves the needle when the contemporaneous record—confession, consent, stipulation, apology letter, plea agreement—uniformly supports the plea.

Ineffective-assistance claims in the plea context turn on whether the accused would have rejected the deal and gone to trial. That is an objective inquiry, anchored to the actual evidence of guilt, not to the appellate brief’s hindsight. When the Government has a confession, consensual search results, and a stipulation, the Lee prejudice showing is steep.

Digital forensic experts can be powerful tools in CSAM and computer-evidence cases. See United States v. Douangdara and our prior post: How a guilty plea can go wrong. But timing matters. The right place to litigate digital forensics is before the guilty plea, not after. Once an accused confesses, consents to searches, signs a stipulation, and pleads guilty, the appellate burden to undo the plea on a forensics theory becomes very heavy.

The Strategic Lesson Before You Sign a Plea Agreement

If digital forensics could exonerate or mitigate—if there is a real argument about automatic syncing, cloud backups, malware downloads, shared devices, or unintended file transfers—those arguments belong in pretrial motions, suppression litigation, expert assistance requests under R.C.M. 703(d), and pretrial negotiations. They lose nearly all their power once the providence inquiry is over and the plea is accepted. Rentas is the latest reminder that the leverage in a CSAM case is built before arraignment, not after sentencing.

How Cave & Freeburg Can Help

At Cave & Freeburg, our military defense lawyers handle Article 134 child pornography cases, NCIS, OSI, CID, and CGIS investigations, and the full range of pretrial and appellate work in courts-martial across every service. We litigate motions to suppress under the Fourth and Fifth Amendments, secure expert assistance for digital forensics under R.C.M. 703(d), evaluate plea agreements with realistic exposure analysis, and—when the government’s case has real weaknesses—we contest at trial rather than settle. On appeal, we know how NMCCA, AFCCA, ACCA, the Coast Guard CCA, and CAAF handle providence challenges, Strickland claims under Suarez, Furth, and Lee, and post-trial declarations. If you face a child pornography investigation or charge under Article 134, UCMJ, or you have already been convicted and want a candid appellate assessment, contact Cave & Freeburg, LLP, today. Call (703) 298-9562 or (917) 701-8961 to speak confidentially with an experienced military defense counsel.

However, once that deal is signed, the judge accepts it, and it is now on appeal, it is hard to get the appellate court to reduce the sentence that is actually adjudged so long as it is within the specified limits of the deal and does not contain any clause that violates public policy. United States v. Spencer from the Navy-Marine Corps Court of Criminal Appeals is one example of how the appeals court looks at the sentence appropriateness where there is a pretrial agreement.

The Navy–Marine Corps Court of Criminal Appeals (NMCCA) reviewed LCpl Spencer’s sentence de novo under the pre‑2023 version of Article 66(d)(1), UCMJ. That statute authorizes the service courts to approve only so much of the sentence as they find “correct in law and fact” and, on the whole record, “should be approved.” Congress removed this text when it overhauled military sentencing in the Fiscal Year 2022 NDAA, but the new regime applies only to offenses occurring on or after 27 January 2023, so the legacy standard controlled here.

Applying that standard, the court reiterated several long‑standing principles: (1) sentence appropriateness review is a matter of law that the court exercises independently; (2) the court must give the accused the punishment he deserves to ensure justice; and (3) it must individually assess both the gravity of the offense and the character of the offender. The court possesses wide latitude to mitigate a legally valid sentence, yet it may not dispense pure clemency—an executive, rather than judicial, function. United States v. Lane frames the de novo review mandate; Healy and Snelling stress individualized proportionality; and Nerad distinguishes sentence tailoring from clemency.

Key facts

Spencer pled guilty, under a negotiated plea agreement, to stealing merchandise from a Marine Corps Exchange on four occasions over eight days. After an initial theft with a fellow Marine, he returned three more times—twice on the same day—to take high‑value items ranging from clothing to electronics. He deliberately circumvented store security and kept the goods for personal use. The agreement left the military judge free to adjudge, but not obligated to impose, a bad‑conduct discharge; it also capped confinement. The judge recommended suspending confinement—but not the discharge—in light of Spencer’s post‑offense reform efforts. The convening authority approved the adjudged sentence.

Analysis

• Legal ceiling. The adjudged punishment neither exceeded the presidential maximums under Article 56(a) nor breached the confinement and punitive‑discharge limits the plea agreement imposed. Reviewing courts will not disturb a sentence that remains within both the UCMJ ceiling and the bargained‑for cap.
• Standard‑of‑review discipline. By invoking Lane and its progeny, the panel correctly treated sentence appropriateness as a question of law—distinct from factual or legal sufficiency—and reviewed it without deference to the trial court’s discretion. The judges therefore asked the right question: “Does this appellant deserve this sentence on this record?”
• Individualized proportionality. The panel weighed Spencer’s repetitive, escalating thefts, the deliberate evasion of security, and the significant value of the property against the mitigating evidence of rehabilitation. That balanced assessment comported with the individualized‑justice mandate of Snelling and Healy.
• Clemency vs. justice. Nerad cautions that Article 66 power must operate under an articulable legal standard, not raw equity. The court honored that boundary by declining to grant outright clemency; instead, it verified that the punishment matched the misconduct and the plea‑agreement expectations.
• Plea‑agreement deference. The panel emphasized that Spencer freely negotiated the agreement and reaped its benefits. Echoing NMCCA precedent in Avellaneda, the court prudently refrained from “second‑guessing” the bargained sentence absent legal error or manifest injustice. Findlaw

Conclusion

The NMCCA performed a textbook Article 66 sentence‑appropriateness review: it applied the correct legal standard, conducted a fact‑intensive proportionality analysis, respected the limits of judicial power, and declined to intrude upon the negotiated plea framework. Given Spencer’s serial thefts and the agreement’s caps, the panel reasonably concluded that the approved sentence was lawful, just, and not unduly severe.

• Statutes of limitations are crucial in preserving evidence and ensuring a fair trial. As time passes, evidence can deteriorate, witnesses can forget details or become unavailable, and memories can become less reliable. This can significantly hinder the fairness of a trial, particularly for the defendant. The statutes of limitations help maintain this balance.
• Statutes of limitations shield the defendant’s rights, providing a sense of security. It’s generally unjust to leave someone under the perpetual threat of prosecution. These statutes protect individuals from facing charges for actions long in the past when mounting a defense might be extremely challenging.
• Resource Management: Statutes of limitations play a crucial role in efficiently managing law enforcement and court resources. These institutions have limited resources, and prioritizing recent crimes helps them focus on cases with fresher evidence and more readily available witnesses.
• Public Interest: Statutes of limitations are not just about justice; they also consider the public interest. Allowing people to move on with their lives after a certain period, especially for less serious offenses, benefits society. This broader impact is an important aspect of these legal concepts.
• Serious crimes often have no statute of limitations. This includes offenses like murder, war crimes, and crimes against humanity.
• Statutes of limitations can be ‘tolled’ (paused) under certain circumstances. For instance, if the defendant flees the jurisdiction or if the crime is concealed, the statute of limitations may be extended. This means that the clock on the statute of limitations stops running during these periods, ensuring that the defendant cannot escape justice by simply waiting out the time limit.

The statute of limitations (SoL) in Article 43, UCMJ, limits the ability to prosecute specific charges at court-martial. While the general rule is five years, many offenses, such as sex offenses, have longer SoLs. For example:

• There is no SoL for AWOL in times of war, murder, rape, sexual assault, rape or sexual assault of a child, maiming of a child, kidnapping of a child, or any other offense punishable by death, or
• having committed a child abuse offense against a child and sworn charges and specifications are received during the life of the child or within ten years after the date on which the offense was committed, whichever provides a longer period.

It is important for military defense counsel to always check the SoL for each specification and make a motion to dismiss if appropriate. However, keep in mind several points (1) the SoL can be waived, usually as part of a pretrial agreement (PTA), or (2) can be waived or forfeited by defense counsel not making a timely motion to dismiss.

A common term in a PTA is that the accused will “waive all waivable” motions. The accused needs to understand how that bargaining chip works. And military judges have to be careful when that comes up. It is unclear what happened during the PTA discussions in Espejo. Espejo was charged with multiple sexual assaults of a child over time. He pleaded guilty with a PTA and was sentenced to 50 years confinement. The main issues were:

Statute of Limitations: There is no discussion during the trial or the PTA proceeding about the applicability of the SoL to one of the charges. It appears neither the defense and prosecution lawyers nor the judge realized there was an SoL problem with one of the specifications. Ergo, the military judge’s error in accepting a guilty plea to a charge outside the statute of limitations is a serious issue. Had the military judge asked the right questions, there’s possibly a valid waiver would have been identified and thus no issue on appeal. However, there was an error, and upon sentence reassessment, the confinement was reduced to 43 years.

Plea Agreement: The plea agreement contained language that violated the Appellant’s post-trial and appellate rights. Specifically, the language in question restricted the Appellant’s ability to appeal the case. This language was struck from the agreement. The court opinion reads as if this was the prosecution being creative in bargaining, which didn’t succeed.

1) For anyone representing a client with Art. 120, offenses that will trigger a Dismissal or DD upon conviction; or 2) Anyone representing a client where there may be a chance of being sentenced to a Dismissal or DD; To avoid an ineffective assistance of counsel claim, such as in Padilla v. Kentucky, please ensure (especially for those supervising line Defense Counsel) that the defense attorney advises the client of a mandatory, and thus ‘direct’ consequence of such a sentence, viz., a federal felony, especially if they are avid hunters, target shooters, skeet shooters, etc., they cannot possess firearms or ammunition!

_____________________________ 18 U.S.C. § 922:

(g) It shall be unlawful for any person—

* * * * *

6) who has been discharged from the Armed Forces under dishonorable conditions;

* * * * *

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. ______________________

Needless to say, I’m working on a case where [client] got a DD over 14 years ago, who has been a hunter all of his life – at least until now – when he went to buy a new shotgun for next Fall’s deer season, popped up on the background check as being “ineligible” to possess. While they didn’t sell him that firearm, ATF showed up at his house a few days later and asked if he had “any firearms” in the house, and he dutifully showed them his 2 shotguns, and 3 rifles [along with @ 200 rounds of ammo], which he surrendered in lieu of arrest. The US Attorney’s Office is not pressing this as they’re not interested in adding to Padilla and its progeny, and (at least for now) is looking to simply forfeit the confiscated weapons.

Of course there’s nothing in the RoT remotely discussing this mandatory prohibition, so add it to the stuff you advise clients. As an aside, I think it fair game to get the Court to judicially note the above statute as a mandatory consequence of a Dismissal or DD, and if the discharge isn’t mandatory especially to argue for no more than a BCD if that.

Be advised.

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.

Rule for Courts-Martial (R.C.M.) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169 172 (C.A.A.F. 1999).

And

“A fundamental principle underlying [CAAF’s] jurisprudence on pretrial agreements is that ‘the agreement cannot transform the trial into an empty ritual.’” United States v. States v. Davis, 50 M.J. 426, 429 (C.A.A.F. 1999) (quoting United States v. Allen, 8 C.M.A. 504, 507, 25 C.M.R. 8, 11 (1957)). With this in mind:

Under RCM 705(a), an accused and the convening authority may enter into a PTA in accordance with the provisions of RCM 705, subject to such limitations as the Secretary concerned may prescribe; RCM 705(b) provides that a PTA may include a variety of promises by the accused and the convening authority; the phrase “may include” reflects that the President has not limited the nature of agreements under the rule to the items listed in RCM 705(b); among the promises that may be made by an accused, the rule includes: (1) a promise to plead guilty to one or more charges and specifications, and (2) a promise to fulfill such additional terms or conditions which may be included in the agreement and which are not prohibited under the rule; among the promises that may be made by a convening authority, the rule includes: (1) a promise to withdraw one or more charges or specifications from the court-martial; (2) a promise to have the trial counsel present no evidence as to one or more specifications or portions thereof; and (3) a promise to take specified action on the sentence adjudged by the court-martial; under RCM 705(c)(1), a term or condition shall not be enforced: (1) if the accused did not freely and voluntarily agree to it; and (2) if it deprives the accused of the right to due process or certain other expressly enumerated rights; RCM 705(c)(2) adds that the prohibition on deprivation of certain rights in subsection (c)(1) does not preclude a voluntary agreement to: provide a stipulation of fact; testify in a subsequent proceeding; provide restitution; conform conduct to probation conditions through the period of any suspended sentence; or waive procedural requirements with respect to an investigation under Article 32, the composition of the court-martial, or the personal appearance of sentencing witnesses; the limitations of RCM 705(c)(1) are the only express limitations on terms of PTAs under the rule; other limitations may be provided under departmental regulations).

See United States v. Smead, 68 M.J. 44 (C.A.A.F. 2008). In United States v. Hoard, the Air Force Court of Criminal Appeals reviewed a challenge to a term.

Appellant argues three bases for why the challenged PTA terms should not be enforced. First, Appellant characterizes the language that would require him to testify against his spouse as being facially inconsistent with the spousal incapacity privilege and improper compulsion. Second, Appellant argues the terms are contrary to the public policy goal of encouraging marital harmony. Finally, Appellant contends that, even if he waived his spousal incapacity by agreeing to the terms, A1C KB’s potentially successful invocation of her confidential communications privilege would frustrate Appellant’s ability to fulfill his obligations under the PTA.

The Court did not agree with the appellant and found the term legal.

As the Court noted, nothing in the appellant’s term required his spouse to waive her marital privilege as to communications, and it’s unlikely she could object to his testimony about facts and what acts were done. And whether he wanted to exercise his right not to testify at all was his to waive–or not waive.

Marital privilege is articulated in Military Rule of Evidence (Mil. R. Evid.) 504 as two distinct privileges: the privilege to refuse to testify against one’s spouse (spousal incapacity) and the privilege to refuse to disclose, or prevent another from disclosing, any confidential communication made to the spouse of the person. “[T]he witness-spouse alone has a [spousal-incapacity] privilege to refuse to testify adversely; the witness may be neither compelled to testify nor foreclosed from testifying.” Trammel v. United States, 445 U.S. 40, 53 (1980). In contrast, the confidential communication privilege may be claimed by the spouse who made the statement or by the other spouse who heard it.

The Court addressed the balancing of interests where an evidentiary rule of privilege exists.

[T]he waiver reflected Appellant’s own balancing of his best interests and marital harmony with A1C KB. As the Supreme Court observed in Trammel, “[w]hen one spouse is willing to testify against the other in a criminal proceeding – whatever the motivation – their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Id. at 52. In this instance, Appellant chose his interests over those of his spouse. Rather than being against public policy as claimed by Appellant, allowing a witness-spouse this voluntary choice reflects the resolution of the competing public policy interests.

The claim that the spouse’s exercise of her marital privilege frustrates the appellant’s ability to perform under the term. Not so, and the AFCCA easily disposed of that challenge. I doubt that there is any convening authority would consider the situation a wilful non performance on the part of the appellant when the spouse invokes because that invocation is beyond the control of appellant (then again, it is an Air Force case and they do weird things at times).

The CAAF Opinion Digest on-line can be found here for some other PTA related cases.

During presentencing testimony, the military judge asked BI, “You never moved away or pushed away from the hand; it stopped voluntarily?” (R. at 129.) She answered, “I did push his hand away.” (Id.) During closing argument, defense counsel requested that the military judge not consider that testimony, as it conflicted with the stipulation of fact.

The CGCCA decided that the information did not contradict the stipulation of fact and was, likely, more of the facts and circumstances surrounding the offense to which the appellant pleaded guilty.

Testimony may go beyond the stipulation of fact without consequence, so long as providence is not undermined, unless there is an agreement not to introduce such evidence. See United States v. Terlep, 57 M.J. 344, 348 (C.A.A.F. 2002).

I anticipate this to become a more common issue at sentencing in sexual assault-related cases. It is not uncommon for a negotiated pretrial agreement in sexual assault cases where the accused is willing to plead guilty to assault and battery but not a sexual assault, and where the accused is not willing to sign a stipulation of fact which acknowledges a sexual assault. An assault and battery plea like this is not normally a sex offender registration eligible offense. However, the prosecution then wants to present the full facts and circumstances of the assault to show how aggravated the assault and battery is. The aggravation usually comes up through the victim’s unsworn statement. There is no error here because of Terlep. What the defense needs to do, if possible, during negotiations, is have an agreement not to present that additional information.

Valois v. Commandant, USDB

The case provides a fascinating discussion of the maze and complexities of DoD and Service regulations the award of good time credit, work abatement, and such, applicable to clients confined at the USDB.

Valois challenges the amount of good conduct time (“GCT”) credit that will be administratively deducted from his sentence. On June 30, 2006, Valois was transferred to the United States Disciplinary Barracks (“USDB”) in Fort Leavenworth, Kansas, where he is presently serving his sentence. On May 11, 2010, Valois filed a claim for administrative relief with the Commandant of the USDB, contesting the amount of good time that was being credited against his sentence. This request was denied on May 12, 2010. Valois repeated the request on May 14, 2010, and it was again denied on May 26, 2010. On June 17, 2010, Valois filed a complaint under Article 138 of the UCMJ on June 17, 2010, which was denied on August 5, 2010. He filed additional Article 138 complaints on June 8 and 28, 2011, both of which were denied. On September 12, 2012, the Air Force Court of Criminal Appeals denied his pro se Writ of Habeas Corpus without prejudice due to lack of counsel. Valois submitted a motion for reconsideration but on February 11, 2013, sought dismissal. Four days later, on February 15, 2013, Valois filed the instant petition. In his petition, Valois asserts two arguments. First, he contends he is entitled to GCT credit of ten days rather than five days per month. Specifically, he contends that the Secretary of the Air Force has the authority to determine the award of GCT, and that Air Force Joint Instruction (“AFJI”) 31-215, which provides for GCT at the rate of ten days per month, controls. Valois argues that later amendments or modifications to AFJI 31-215 were either invalid or have expired. Second, Valois argues that changes in GCT after his conviction constitute an ex post facto violation of the Constitution. The arguments asserted by Valois are related. First, he contends that Congress has authorized the Secretary of each military service group to establish military correctional facilities and provide regulations for their operation. From this, he reasons that the Secretary of the Air Force controls the award of GCT. Next, Valois contends that Air Force regulations, not those of the Department of Defense (“DoD”), control his GCT. He argues that DoD regulations, which purportedly amended the Air Force regulations, are not valid because they expired and were not properly activated again. Finally, based upon these arguments, Valois contends that the less generous GCT rate under the DoD regulations illegally increases his time in confinement in violation of the Ex Post Facto Clause of the United States Constitution. The Court first examines the maze of GCT regulations that the Air Force and DoD have issued over the last 50 years. These regulations are not always uniform and their effective dates and subsequent cancellations are often difficult to discern. The Honorable Richard D. Rogers has previously explained the problem with military regulations on issues of parole and GCT: [T]he military regulations governing parole and good time for prisoners at the USDB are difficult to locate and decipher. Piecemeal changes have been made numerous times; some are Department of Defense directives while others are Army and Air Force regulations. Some contain disorganized provisions on the same subject, some are poorly written with seeming inconsistencies, and some subjects seem not to be adequately addressed. These regulations are not in the Code of Federal Regulations or available to the court through normal research channels. Instead, the court must rely on excerpts selected by the parties and provided with the pleadings. Young v. Nickels, 59 F. Supp.2d 1137, 1139 (D. Kan. 1999).

Like military counsel, “With some trepidation, the Court enters the military labyrinth of regulations.” After entering and leaving that labyrinth the court denies relief.

Part of Valois’ claim is that he received IAC when taking his PTA because he was wrongly advised of his likely good time credit. The court cites to United States v. Griffitts, No. 201000673, 2011 WL 4985719 at * 4 (N-M. Ct. Crim. App. Oct. 20, 2011)(defense counsel’s mistaken reliance on outdated Navy instruction which awarded ten days GCT credit did not lead to improvident plea and was not ineffective assistance of counsel).

• The Court of Military Appeals in United States v. Schaffer, 12 M.J. 425, 428 (C.M.A. 1982) opened the door to non-traditional bargained for PTA provisions when it expressly acknowledged a judicial willingness to accept more complex PTAs, especially when the proposed term is proposed by the accused and his defense counsel. For some odd terms the courts don’t like:
• An agreement providing for a reduction of the accomplice’s confinement sentence by one year for each occasion that the accomplice testified against his co-accused. The court in United States v. Scoles, 33 C.M.R. 226, 232 (C.M.A. 1963) held that the agreement “offered an almost irresistible temptation to a confessedly guilty party to testify falsely in order to escape the adjudged consequences of his own misconduct.”
• In United States v. Spriggs, 40 M.J. 158, 162 (C.M.A. 1994), the PTA provided for a suspension of confinement and punitive discharge until such time as appellant completed a sexual offender program at his own expense. Appellant experienced financial difficulties resulting from his non-pay status and was not able to complete the program. Consequently, the CA vacated his suspension and the appellant was placed in confinement. The court held the term to be fundamentally unfair as it was an “unreasonably long” period of time for the appellant to comply with the offenders program and follow-up.
• See United States v. Dawson, 51 M.J. 411 (C.A.A.F.1999) and United states v. Pilkington, 51 M.J. 415 (C.A.A.F. 1999). Both cases stand for the proposition that post-trial agreements will be affirmed if the new agreement was entered into voluntarily and knowingly by the accused. However, it is imperative that post-trial agreements be reached at arms-length.

Now along comes one of my favorite evidence Prof’s – Colin Miller. Recently, the New York Times published, “Why Adnan Syed of ‘Serial’ Should Have Pleaded Guilty.” Prof Miller observes: “I can’t say that I agree that Adnan should have pleaded guilty, but I do agree with the plea bargaining proposal mentioned in the op-ed. In fact, it’s the same argument I made in back in 2013 in my article, Anchors Away: Why the Anchoring Effect Suggests that Judges should be able to Participate in Plea Discussions, 54 B.C. L. Rev. 1667 (2013).”

A New York federal judge, Jed Rakoff, has proposed one reform: plea-bargaining conferences. In sealed proceedings, judges would examine each party’s position and recommend a nonbinding plea bargain. The plan needs to be refined . . .

The point under discussion is Judge Rakoff’s piece, “Why Innocent People Plead Guilty,” from The New York Review ofBooks, November 2014. Here’s the nub of the argument.

I am driven, in the end, to advocate what a few jurisdictions, notably Connecticut and Florida, have begun experimenting with: involving judges in the plea-bargaining process. At present, this is forbidden in the federal courts, and with good reason: for a judge to involve herself runs the risk of compromising her objectivity if no bargain is reached. . . . [U]nlike the criminal plea bargain situation, there is no legal impediment to doing so [in civil cases]. But the problem is solved in civil cases by referring the settlement negotiations to magistrates or special masters who do not report the results to the judges who handle the subsequent proceedings. If the federal rule were changed, the same could be done in the criminal plea bargain situation. As I envision it, shortly after an indictment is returned (or perhaps even earlier if an arrest has occurred and the defendant is jailed), a magistrate would meet separately with the prosecutor and the defense counsel, in proceedings that would be recorded but placed under seal, and all present would be provided with the particulars regarding the evidence and issues in the case. In certain circumstances, the magistrate might interview witnesses or examine other evidence, again under seal so as not to compromise any party’s strategy. He might even interview the defendant, under an arrangement where it would not constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination. The prosecutor would, in the meantime, be precluded from making any plea bargain offer (or threat) while the magistrate was studying the case. Once the magistrate was ready, he would then meet separately with both sides and, if appropriate, make a recommendation, such as to dismiss the case (if he thought the proof was weak), to proceed to trial (if he thought there was no reasonable plea bargain available), or to enter into a plea bargain along lines the magistrate might suggest. No party would be required to follow the magistrate’s suggestions. Their force, if any, would come from the fact that they were being suggested by a neutral third party, who, moreover, was a judicial officer that the prosecutors and the defense lawyers would have to appear before in many other cases.

My good friend Dew_Process brought an Indiana professional discipline case to my attention and it is worth noting. The issue for the prosecutor In re Flatt-Moore, No. 30S00-0911-DI-535 (Ind. January 12, 2012), was an allegation that she surrendered her discretion as a prosecutor during pretrial negotiations, to the victims money demands. The chief prosecutor had an established policy that they would not agree to a pretrial agreement unless both the police and victims agreed.

During a disciplinary hearing the IO found that the policy did not require or give the victim the right to dictate any restitution amount. The IO found that the prosecutor had engaged in conduct prejudicial to the administration of justice. That is found in Rule 8.4(d) of the Indiana rules of professionalism. The military Services follow the ABA Model Rules of professionalism, as published in Service regulations. The ABA rule 8.4(d) is the same as that in Indiana. The Indiana court found the prosecutor had erred and violated the rule, and the issued a public opinion.

Interesting . . . The court agreed that there is largely unfettered discretion between the parties to negotiate an agreement so long as it does not violate the law, in not unconstitutional, and is truly voluntary. And the court found that the agreement reached in the particular case was not unlawful and was approved. The issue was – for the prosecutor – that they gave all the power and negotiating decisions to the victim. So how does that translate to a military sexual assault prosecution? You and your military defense lawyer are free to negotiate a pretrial agreement for just about anything. The Supreme Court itself has stated that an accused can waive fundamental constitutional requirements of a trial. United States v. Mezzaatto, 513 U.S. 196 (1995).

There are some matters that cannot be bargained away and the military appellate courts have been alert to unconscionable terms in a pretrial agreement. For example, by executive order the President has declared that certain matters may not be bargained away. R.C.M. 705(c)(1)(B). An acceptable term is restitution. As a military defense lawyer representing clients prosecuted under the UCMJ, I have negotiated such terms, including in sexual offense cases.

There is no “punishment” of restitution in the current UCMJ or Manual for Courts-Martial. That doesn’t preclude creative lawyering.

The Indiana Supreme Court agreed that crime victims have and should have substantial input into the pretrial negotiation process, but they don’t and shouldn’t have is a veto. To allow a veto usurps the prosecutor’s discretion to act on behalf of the state and the people. So if you and your military defense counsel are trying to negotiate a pretrial agreement and the prosecutor tells you that the CA would be willing but the victim says no, and they are bound by that no, mention this case to them. The interesting issue is whether you can make a pretrial motion on the issue – not sure about that. Or do you take a deal and then bring it up with the military judge when she is doing the on the record inquiry as to the voluntariness of the deal. For samples of prior appellate cases dealing with pretrial agreements, check here at the Court of Appeals for the Armed Forces (CAAF), or talk with your military defense lawyer. It is far better to enter negotiations informed, rather than have a potential problem on appeal.