2008 edition - Fort Sam Houston - U.S. Army

(a) In general. Subsection (1) is based on Article 45 and paragraph
70 a of MCM, 1969 (Rev.). The first sentence parallels the
first sentence in Fed. R. Crim. P. 11(a)(1), except that no provision
is made for pleas of nolo contendere. Such a plea is unnecess
a r y i n c o u r t s - m a r t i a l . H e a r i n g s o n H . R . 4 0 8 0 B e f o r e A
Subcomm, of the Comm. on Armed Services of the House of
Representatives. 81st Cong., 1st Sess. 1054 (1949). See 8A.J.
Moore, Moore’s Federal Practice Para. 11.07(1) (1980 rev. ed)
concerning the purpose of nolo pleas in civilian practice, and a
discussion of the controversy about them. Furthermore, the practice
connected with nolo pleas (see Fed. R. Crim. P. 11(f) which
does not require that a factual basis be established in order to
accept a plea of nolo contendere; see also Moore’s supra at
Para. 11.07(1) is inconsistent with Article 45. The second sentence
on Fed. R. Crim. P. 11(a) is covered under subsection (b) of
this rule insofar as it pertains to military practice.
1993 Amendment: The amendment to R.C.M. 910(a)(1) removed
the necessity of pleading guilty to a lesser included off
e n s e b y e x c e p t i o n s a n d s u b s t i t u t i o n s . T h i s p a r a l l e l s t h e
amendment to R.C.M. 918(a)(1), allowing a finding of guilty to a
named lesser included offense without mandating the use of exceptions
and substitutions, made to correspond more closely to
verdict practice in federal district courts. See Analysis comments
for R.C.M. 918(a)(1).
Subsection (2) is based on Fed. R. Crim. P. 11(a)(2). Conditional
guilty pleas can conserve judicial and governmental resources
by dispensing with a full trial when the only real issue is
determined in a pretrial motion. As in the federal courts, the
absence of clear authority in courts-martial for such a procedure
has resulted in some uncertainty as to whether an accused could
preserve some issues for appellate review despite a plea of guilty.
See e.g., United States v. Schaffer, 12 M.J. 425 (C.M.A. 1982);
United States v. Mallett, 14 M.J. 631 (A.C.M.R. 1982). Now such
issues may be preserved, but only in accordance with this subsection.
See also subsection (j) of this rule.
There is no right to enter a conditional guilty plea. The military
judge and the Government each have complete discretion whether
to permit or consent to a conditional guilty plea. Because the
purpose of a conditional guilty plea is to conserve judicial and
government resources, this discretion is not subject to challenge
by the accused. The rationale for this discretion is further explained
in Fed. R. Crim. P. 11 advisory committee note:
(b) Refusal to plead, irregular plea. The subsection is based on
Article 45(a) and paragraph 70 a of MCM, 1969 (Rev.). It parall
e l s t h e s e c o n d s e n t e n c e o f F e d . R . C r i m . P . 1 1 ( a ) , b u t i s
broadened to conform to Article 45(a). The portion of Fed. R.
Crim. P. 11(a) concerning corporate defendants does not apply in
courts-martial. The discussion is based on the last sentence of the
first paragraph of paragraph 70 a of MCM, 1969 (Rev.).
(c) Advice of accused. This subsection is taken from Fed. R.
Crim. P. 11(c) and is consistent with paragraph 70 b(2) of MCM,
1969 (Rev.). See also H.R. Rep. No. 491, supra at 23–24; S.Rep.
No. 486, supra at 20–21; Boykin v. Alabama, 395 U.S. 238
(1969); McCarthy v. United States, 394 U.S. 459 (1969); United
States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969).
As to subsection (1), the requirement that the accused understand
the elements of the offense is of constitutional dimensions.
ANALYSIS
App. 21, R.C.M. 910(e)
Henderson v. Morgan, 426 U.S. 637 (1976); see also United
States v. Care, supra. The elements need not be listed as such,
seriatim, if it clearly appears that the accused was apprised of
them in some manner and understood them and admits ( see
subsection (e) of this rule) that each element is true. See Henderson
v. Morgan, supra; United States v. Grecco, 5 M.J. 1018
(C.M.A. 1976); United States v. Kilgore, 21 U.S.C.M.A. 35, 44
C.M.R. 89 (1971). But see United States v. Pretlow, 13 M.J. 85
(C.M.A. 1982).
Advice concerning a mandatory minimum punishment would
be required only when the accused pleads guilty to murder under
clause (1) or (4) of Article 118. The accused could only do so if
the case had been referred as not capital. As to advice concerning
the maximum penalty, the adoption of the language of the federal
rule is not intended to eliminate the requirement that the advice
state the maximum including any applicable escalation provisions.
As to misadvice concerning the maximum penalty see United
States v. Walls, 9 M.J. 88 (C.M.A. 1981).
Subsection (2) of Fed. R. Crim. P. 11(c) has been modified
because of the absence of a right to counsel in summary courtsmartial.
See R.C.M.1301(e) and Analysis. In other courts-martial,
full advice concerning counsel would ordinarily have been given
previously ( see R.C.M.901(d)(4)) and need not be repeated here.
The discussion is based on paragraph 70 b(1) of MCM, 1969
(Rev.) and H.Rep. 491, supra at 23–24, S.Rep. 486, supra at
20–21.
Subsections (3), (4), and (5) have been taken without substantial
change from Fed. R. Crim. P. 11(c). Subsections (3) and (4)
are consistent with the last paragraph and paragraph 70 b (2) of
MCM, 1969 (Rev.). Subsection (5) corresponds to Mil. R. Evid.
410. As to the effect of failure to give the advice in subsection (5)
see United States v. Conrad , 598 F.2d 506 (9th Cir. 1979).
(d) Ensuring that the plea is voluntary. This subsection is based
on Fed. R. Crim. P. 11(d) and is consistent with paragraph 70
b(3) of MCM, 1969 (Rev.). As to the requirement to inquire
concerning the existence of a plea agreement, see United States v.
Green, 1 M.J. 453 (C.M.A. 1976).
(e) Determining accuracy of plea. This subsection is based on
Fed. R. Crim. P. 11(f), except that “shall” replaces “should” and
it is specified that the military judge must inquire of the accused
concerning the factual basis of the plea. This is required under
Article 45(b) and is consistent with paragraph 70 b(3) of MCM,
1969 (Rev.). See also H.R. Rep. 491, supra at 23–24; S.Rep. 486,
supra at 20–21; United States v. Davenport, 9 M.J. 364 (C.M.A.
1980); United States v. Johnson, 1 M.J. 36 (C.M.A. 1975); United
States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973). Notwithstanding
the precatory term “should,” the factual basis inq
u i r y i n F e d . R . C r i m . P . 1 1 ( f ) i s , i n p r a c t i c e , m a n d a t o r y ,
although the means for establishing it are broader. See J. Moore,
supra at Para.11.02(2). See also ABA Standards, Pleas of Guilty
§ 1 . 6 ( 1 9 7 8 ) . T h e l a s t s e n t e n c e r e q u i r i n g t h a t t h e a c c u s e d b e
placed under oath is designed to ensure compliance with Article
45 and to reduce the likelihood of later attacks on the providence
of the plea. This is consistent with federal civilian practice. See
Fed.R.Evid. 410.
The first paragraph in the discussion is also based on United
States v. Jemmings, 1 M.J. 414 (C.M.A. 1976); United States v.
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