United States v. Gladue , 67 M.J. 311 ( 2009 )

UNITED STATES, Appellee
v.
Matthew W. GLADUE, Staff Sergeant
U.S. Air Force, Appellant
No. 08-0452
Crim. App. No. 36580
United States Court of Appeals for the Armed Forces
Argued December 3, 2008
Decided April 28, 2009
STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. BAKER, J., filed a separate opinion
concurring in the result, in which EFFRON, C.J., joined.
Counsel
For Appellant: Captain Tiffany M. Wagner (argued); Major
Shannon A. Bennett and Captain Griffin S. Dunham (on brief).
For Appellee: Captain Naomi N. Porterfield (argued); Colonel
Gerald R. Bruce and Major Jeremy S. Weber (on brief); Major
Matthew S. Ward and Captain Brendon K. Tukey.
Military Judge: Donald A. Plude
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Gladue, No. 08-0452/AF
Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether Appellant’s pretrial
agreement (PTA) to “waive any waiveable [sic] motions” barred
Appellant from asserting claims of multiplicity or
multiplication of charges on appeal. We find that under these
facts it did, and affirm.
This case began when Appellant brought a firearm onto
Robins Air Force Base in violation of Base Instruction 31-101.
Upset with the treatment he had received from two of his
supervising noncommissioned officers, Appellant communicated to
friend and coworker Staff Sergeant Jeremy Green detailed and
apparently sincere threats to kill Master Sergeant Clifford
Walton, Appellant’s flight chief and second-level supervisor,
and Technical Sergeant Anthony Staggers, his immediate
supervisor. While in pretrial confinement at the Houston County
Detention Center in Perry, Georgia, for these offenses,
Appellant concocted a plan to hire a contract killer to murder
the principal witness to the threats. At Appellant’s request, a
fellow prisoner put him in contact with a purported contract
killer, in actuality an undercover law enforcement officer.
Appellant was tried before a general court-martial
consisting of a military judge sitting alone. In return for a
ten-year cap on any sentence to confinement and the dismissal of
certain additional specifications, Appellant agreed to a PTA
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requiring him to plead guilty to the following offenses: one
specification of attempted conspiracy to murder; one
specification of conspiracy to murder; one specification of
failure to obey an order or regulation; two specifications of
communicating a threat; one specification of endeavoring to
impede a court-martial in violation of Article 134; and two
specifications of solicitation of murder. Articles 80, 81, 92,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
880, 881, 892, 934 (2000).
In accordance with his pleas, Appellant was convicted of
these offenses and sentenced by the military judge to a
dishonorable discharge, confinement for eighteen years,
forfeiture of all pay and allowances, and reduction to E-1.
Under the terms of the PTA, the convening authority approved
only so much of the sentence as extended to a dishonorable
discharge, confinement for ten years, forfeiture of all pay and
allowances, and reduction to E-1. The United States Air Force
Court of Criminal Appeals (CCA) affirmed the findings and
sentence. United States v. Gladue, 65 M.J. 903, 906 (A.F. Ct.
Crim. App. 2008).
I. The Pretrial Agreement
In the PTA, Appellant agreed to “waive any waiveable [sic]
motions” and stated that “My defense counsel have fully advised
me of . . . any defenses that might apply. . . . I fully
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understand their advice and the meaning, effect, and
consequences of this plea.” At the trial, the following
colloquy took place:
MJ: In particular, do you understand that this
term of you [sic] pretrial agreement precludes
this court or any appellate court from having
the opportunity to determine if you are
entitled to any relief upon those motions?
ACC: Yes, sir.
MJ: Essentially it is a speak now or forever
hold your peace scenario. The motion would
have to be raised before entering a plea and if
you don’t do so, then you lose the ability to
argue them later on. Do you understand that?
ACC: Yes sir, I do.
MJ: When you elected to give up the right to
litigate these motions and I am going to be
discussing with your counsel shortly what these
motions are, did your defense counsel explain
this term of the pretrial agreement and the
consequences to you?
ACC: Yes sir, they did.
MJ: Did anyone force you to enter into this
term of your pretrial agreement?
ACC: No, sir.
MJ: Defense counsel, which side originated the
waiver of motions provision?
CIV DC: The prosecution did.
MJ: SSgt Gladue, although the government
originated this term of your pretrial
agreement, did you freely and voluntarily agree
to this term of your pretrial agreement in
order to receive what you believe to be a
beneficial pretrial agreement?
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ACC: Yes sir, I did.
The military judge then went on to discuss with Appellant’s
civilian defense counsel certain motions. These included (1) a
motion for change of venue, (2) a motion to suppress, (3) a
motion for continuance, and (4) the defense of entrapment.
Appellant acknowledged that he had discussed these possible
motions with his counsel and, as part of the PTA offer, decided
to affirmatively waive raising them. Motions relating to
multiplicity and unreasonable multiplication of charges were not
among those discussed by the military judge.
Before the CCA, Appellant argued that his conviction on the
two specifications of solicitation to murder were multiplicious
with the specifications of impeding a trial by soliciting
another to commit murder and the attempted conspiracy to murder.
Gladue, 65 M.J. at 904. In the alternative, Appellant argued
that the charges constituted an unreasonable multiplication of
charges. Id.
The CCA rejected this argument. The court held that the
claims of unreasonable multiplication of charges and
multiplicity were waived. Id. at 905-06. The CCA found that
the military judge conducted an “extensive inquiry” into
Appellant’s understanding and acknowledgment of each provision
of the PTA. Id. at 904. Appellant’s agreement to the PTA was
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made freely and voluntarily, and thus the CCA found that as a
“matter of fact” Appellant “voluntarily relinquished his rights
at trial and on appeal to raise ‘waivable motions.’” Id.
II. Discussion
The granted issue arises out of the failure of military
courts to consistently distinguish between the terms “waiver”
and “forfeiture.” See United States v. Harcrow, 66 M.J. 154,
156 n.1 (C.A.A.F. 2008). “Waiver is different from forfeiture.
Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the ‘intentional relinquishment or
abandonment of a known right.’” United States v. Olano, 507
U.S. 725, 733 (1993) (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938)). The distinction between the terms is important.
If an appellant has forfeited a right by failing to raise it at
trial, we review for plain error. Harcrow, 66 M.J. at 156
(citing Olano, 507 U.S. at 733-34). When, on the other hand, an
appellant intentionally waives a known right at trial, it is
extinguished and may not be raised on appeal. Id. (citing
Olano, 507 U.S. at 733-34).
The prohibition against multiplicity is grounded in
compliance with the “constitutional and statutory restrictions
against Double Jeopardy.” United States v. Quiroz, 55 M.J. 334,
337 (C.A.A.F. 2001). The related policy against the
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unreasonable multiplication of charges, Rule for Courts-Martial
(R.C.M.) 307(c)(4), addresses the danger of prosecutorial
overreaching. Quiroz, 55 M.J. at 337.
Appellant asserts that an unconditional guilty plea does
not waive multiplicity claims and that “the policy behind
multiplicity dictates that the existence of a pretrial agreement
does not prevent an appellant from raising issues waived at
trial.” Citing United States v. Heryford, 52 M.J. 265, 266
(C.A.A.F. 2000), and United States v. Britton, 47 M.J. 195,
198-99 (C.A.A.F. 1997), Appellant argues that this is a case of
plain error, in that the specifications complained of are
“facially duplicative,” that plain error exists, and that the
waiver provision in the PTA is therefore ineffective.
This case is distinct from the cases relied upon by
Appellant because here Appellant’s pretrial agreement expressly
waived all waivable motions. We hold that Appellant waived,
rather than forfeited these issues. In United States v. Lloyd,
this Court recognized that even in cases in which an appellant
failed to raise multiplicity at trial, he would be entitled to
relief if the specifications were facially duplicative. 46 M.J.
19, 23 (C.A.A.F. 1997). But we added a caveat: “Express waiver
or voluntary consent, however, will foreclose even this limited
form of inquiry.” Id. Although Lloyd only addressed
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multiplicity, we see no reason why the same caveat regarding
express waiver or consent should not apply to the concept of
unreasonable multiplication of charges, and therefore adopt it.
Admittedly, motions relating to multiplicity and
unreasonable multiplication of charges were not among those
subsequently discussed by the military judge and the civilian
defense counsel. However, this does not affect the validity of
the waiver. The text of the PTA unambiguously agrees to “waive
any waiveable [sic] motions,” and after the military judge
conducted a detailed, careful, and searching examination of
Appellant to ensure that he understood the effect of the PTA
provision, Appellant explicitly indicated his understanding that
he was giving up the right “to make any motion which by law is
given up when you plead guilty.” (Emphasis added.)
“A criminal defendant may knowingly and voluntarily waive
many of the most fundamental protections afforded by the
Constitution.” United States v. Mezzanatto, 513 U.S. 196, 201
(1995). That includes double jeopardy, the basis of the
multiplicity objection. See id. (citing Ricketts v. Adamson,
483 U.S. 1, 10 (1987) (double jeopardy defense waivable by
pretrial agreement)). The caution against the unreasonable
multiplication of charges is not a constitutional imperative,
but rather a presidential policy. United States v. Weymouth,
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43 M.J. 329, 335 (C.A.A.F. 1995). In the absence of an explicit
prohibition, a party may knowingly and voluntarily waive such a
nonconstitutional right in a PTA. See Shutte v. Thompson, 82
U.S. 151, 159 (1873) (stating that “[a] party may waive any
provision, either of contract or of a statute, intended for his
benefit”); United States v. Edwards, 58 M.J. 49, 52 (C.A.A.F.
2003) (citing Mezzanatto, 513 U.S. at 201). Although the
President has prohibited the waiver of certain fundamental
rights in a PTA, neither multiplicity nor the unreasonable
multiplication of charges is among them. R.C.M. 705(c)(1)(B).
Appellant’s express waiver of any waivable motions waived claims
of multiplicity and unreasonable multiplication of charges, and
extinguished his right to raise these issues on appeal. This
being the case, we need not reach the issue of whether the
specifications were in fact facially duplicative.
III. Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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BAKER, Judge, with whom EFFRON, Chief Judge, joins
(concurring in the result):
I agree with the general proposition that an accused can
waive waivable motions, which is a circular legal truism, of
course. However, I would not find waiver, express or otherwise,
in this case because the military judge catalogued the motions
at issue and he did not include either multiplicity or
unreasonable multiplication of charges among the motions waived.
As the majority notes, waiver, the “intentional
relinquishment or abandonment of a known right,” differs from
forfeiture, “the failure to make the timely assertion of a
right.” United States v. Gladue, __ M.J. __ (6) (C.A.A.F. 2009)
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)
(quotation marks omitted)). Generally, waivers of fundamental
constitutional rights, including protection from double
jeopardy, must be “knowing, intelligent, and voluntary.”
Ricketts v. Adamson, 483 U.S. 1, 23 (1987) (citing Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)). See U.S. Const. amend. V
(“No person shall . . . be subject, for the same offence, to be
twice put in jeopardy of life or limb.”). Here, the record
reveals no indication that Appellant knowingly, voluntarily, and
intelligently waived his double jeopardy claims. Although
Appellant expressly waived all waivable motions, the military
judge delimited that waiver by cataloguing the specific motions
United States v. Gladue, No. 08-0452/AF
and issues waived. This catalogue did not include multiplicity
or an unreasonable multiplication of charges:
MJ: When you elected to give up the right to
litigate these motion [sic] and I am going to be
discussing with your counsel shortly what these
motions are, did your defense counsel explain
this term of the pretrial agreement and the
consequences to you?
ACC: Yes sir, they did.
. . . .
MJ: Defense counsel, what do you believe to be
the factual basis for any motions covered by the
pretrial agreement? Per one of the 802
conferences that we held prior to this trial I
was informed of two potential motions. One of
which you had submitted, motion for change of
venue. I was also advised of a motion to
suppress evidence that would effect --
CIV DC: Those items which were found in the jail.
. . . .
MJ: Please explain to me or educate me if you
would on what you believe is the factual basis of
any motions covered by this term of the pretrial
agreement?
CIV DC: Outside of the ones that you just
described which [sic] will be the motion for
continuance --
. . . .
CIV DC: The only other one that we can describe,
which was somewhat eluded [sic] to by the
prosecution, would be the entrapment defense. Of
course as we know that can either be raised by a
motion or upon the trial of the case, whatever
the evidence would be in that particular matter.
We would waive that particular motion as well.
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. . . .
MJ: SSgt Gladue, the motion for the change of
venue was made and a possible ruling could have
been that your trial would have been moved to
another location other than being held [sic] at
or near Robins AFB. It wouldn’t necessarily
effect [sic] any of the charges against you, just
the location of your trial. Do you understand
that?
ACC: Yes, sir.
. . . .
MJ: The entrapment issue and the motion to
suppress, if they were granted, that could result
in -- well, with regard to the suppression
motion, the inability of the government to use
that evidence to prove your offense which could
result in a dismissal of those effective charges.
Similarly the entrapment offense, if the
government was unable to prove beyond a
reasonable doubt that you were not entrapped,
that similarly could result with respect of a
finding of not guilty. Possibly a motion for
finding him not guilty could be approved by the
court with regard to some or all of the
additional charges or second additional charges.
. . . .
MJ: SSgt Gladue, do you understand that if these
motions were made and granted by me that there is
a possibility that the relief that I’ve
discussed, specifically dismissal of some or all
of those effected [sic] charges could result?
ACC: Yes, sir.
MJ: I said possibility because at this point in
time no one knows for certain whether or not it
would have that effect. Have you discussed those
motions with your defense counsel?
ACC: Yes sir, I have.
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MJ: Knowing what your defense counsel and I have
told you, do you want to give up making those
motions in order to get the benefit of your
pretrial agreement?
ACC: Yes sir, I do.
The accused, especially in a plea context, looks to the
military judge to explain the law and to ensure he understands
the terms of his pretrial agreement, as well as the consequences
and meaning of his plea. The military judge did so in this
case. Nonetheless, the majority considers the military judge’s
explanation irrelevant to Appellant’s understanding of his plea
and its terms. I do not see how we can determine Appellant’s
plea was knowing and voluntary if we do not assess it in the
context in which it was explained on the record to Appellant.
See United States v. Smith, 56 M.J. 271, 272-73 (C.A.A.F. 2002)
(“To ensure that the record reflects the accused understands the
pretrial agreement and that both the Government and the accused
agree to its terms, the military judge must ascertain the
understanding of each party during the inquiry into the
providence of the plea.”).
Further, an accused cannot silently waive appellate review
of plain error. See United States v. Branham, 97 F.3d 835, 842
(6th Cir. 1996) (reviewing for plain error because failure to
take affirmative steps to waive double jeopardy claims
constituted forfeiture rather than waiver); United States v.
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Lloyd, 46 M.J. 19, 22 (C.A.A.F. 1997) (“[I]n the absence of an
express waiver or consent, we have not abandoned the doctrine of
plain error with respect to multiplicious offenses.”). Waiver
of waivable motions should be done on the record and expressly.
Otherwise, the military judge and appellate courts will not be
in a position to assess whether the waiver is knowing and
voluntary.
That being said, I concur in the result because, waiver or
not, there is no plain error in this case. There is no error
because the charges were not facially duplicative and did not
represent an unreasonable multiplication of charges. See United
States v. Roderick, 62 M.J. 425, 433 (C.A.A.F. 2006)
(“Multiplicity and unreasonable multiplication of charges are
two distinct concepts. While multiplicity is a constitutional
doctrine, the prohibition against unreasonable multiplication of
charges is designed to address prosecutorial overreaching.”)
(citing United States v. Quiroz¸ 55 M.J. 334, 337 (C.A.A.F.
2001)).
First, the charges were not “facially duplicative, that is,
factually the same.” United States v. Heryford, 52 M.J. 265,
266 (C.A.A.F. 2000) (quotation marks omitted). To the contrary,
the charges included distinct elements. See United States v.
Hudson, 59 M.J. 357, 359 (C.A.A.F. 2004) (“Under [the elements]
test, the court considers ‘whether each provision requires proof
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of a fact which the other does not.’”) (quoting Blockburger v.
United States, 284 U.S. 299, 304 (1932)). Although
Specifications 1 and 4 of Additional Charge II both address
Appellant’s “solicit[ation of] an undercover law enforcement
known to the accused as ‘Mike Williams’ to murder Staff Sergeant
Jeremy Green,” they are distinct because Specification 1
includes the additional element that the solicitation impeded
Appellant’s trial by court-martial.1 Whereas solicitation
requires “intent that the offense actually be committed,”
Specification 1 requires additional proof that Appellant
committed the offense of solicitation to “endeavor to impede a
1
As stated in the charge sheet:
ADDITIONAL CHARGE II, Violation of the UCMJ, Article
134
Specification 1: In that [Appellant] did, at or near
Perry, Georgia, between on or about 16 July 2004 and
on or about 13 October 2004, wrongfully endeavor to
impede a trial by court-martial in the case of the
United States vs. Staff Sergeant Matthew W. Gladue, by
soliciting an undercover law enforcement officer known
to the accused as “Mike Williams” to murder Staff
Sergeant Jeremy Green, a witness in the case of United
States vs. Staff Sergeant Matthew W. Gladue.
. . . .
Specification 4: In that [Appellant] did, at or near
Perry, Georgia, between on or about 16 July 2004 and
on or about 13 October 2004, wrongfully solicit an
undercover law enforcement officer known to the
accused as “Mike Williams” to murder Staff Sergeant
Jeremy Green.
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trial by court-martial.” Manual for Courts-Martial, United
States pt. IV, para. 105.b(2) (2005 ed.) (MCM).
Further, the specification of the Second Additional Charge
departs from Specification 3 of Additional Charge II because,
even though it similarly addresses the role of Christopher
Carter, it also addresses the payment of money, the involvement
of Appellant’s wife, and the role of “Mike Williams” in
Appellant’s scheme.2 Additionally, conspiracy is a distinct
2
As stated in the charge sheet:
ADDITIONAL CHARGE II, Violation of the UCMJ, Article
134
. . . .
Specification 3: In that [Appellant] did, at or near
Perry, Georgia, between on or about 16 July 2004 and
on or about 13 October 2004, wrongfully solicit
Christopher Carter to secure the services of a
contract killer to murder Staff Sergeant Jeremy Green.
. . . .
SECOND ADDITIONAL CHARGE, Violation of the UCMJ,
Article 80
Specification: In that [Appellant] did, at or near
Perry, Georgia, between on or about 15 September 2004
and on or about 13 October 2003, attempt to conspire
with Christopher Carter and an undercover law
enforcement officer known to the accused as “Mike
Williams” to commit an offense under the Uniform Code
of Military Justice, to wit: the murder of Staff
Sergeant Jeremy Green and in order to effect the
object of the conspiracy the said Staff Sergeant
Matthew W. Gladue did give a written contract to
Christopher Carter promising the payment of money,
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offense from solicitation because conspiracy requires additional
proof “[t]hat the accused entered into an agreement with one or
more persons to commit an offense” and “the accused or at least
one of the co-conspirators performed an overt act for the
purpose of bringing about the object of the conspiracy.” MCM
pt. IV, para. 5.b. See United States v. Carter, 30 M.J. 179,
180-81 (C.M.A. 1990) (concluding that charging conspiracy and
solicitation was not multiplicious because the offenses have
different elements).
Second, there was no unreasonable multiplication of
charges. Appellant did not object to the multiple charges and
their specifications, and the specifications at issue address
distinct criminal acts, do not misrepresent or exaggerate
Appellant’s criminality, did not unreasonably increase
Appellant’s punitive exposure, and are not the result of
prosecutorial overreaching. See Quiroz, 55 M.J. at 338 (relying
on a list of factors to determine the unreasonable
multiplication of charges). In that context, it is firm, but
not unreasonable, to charge each independent aspect of the
conduct.
request to be introduced to “Mike Williams,” direct
Jessica Gladue to meet with Christopher Carter and
“Mike Williams,” and direct Jessica Gladue to pay
Christopher Carter and “Mike Williams” money.
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