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

App. 21, R.C.M. 910(e) APPENDIX 21
Kilgore, supra; United States v. Care, supra. See also United
States v. Crouch, 11 M.J. 128 (C.M.A. 1981).
The second paragraph in the discussion is new and is based on
United States v. Moglia, 3 M.J. 216 (C.M.A. 1977); United States
v. Luebs, 20 U.S.C.M.A. 475, 43 C.M.R. 315 (1971); United
States v. Butler, 20 U.S.C.M.A. 247, 43 C.M.R. 87 (1971).
(f) Plea agreement inquiry. This subsection is based on Fed. R.
Crim. P. 11(e), with substantial modifications to conform to plea
agreement procedures in the military. See R.C.M. 705 and Analysis.
The procedures here conform to those prescribed in United
States v. Green, supra. See also United States v. Passini, 10 M.J.
109 (C.M.A. 1980).
It is not intended that failure to comply with this subsection
will necessarily result in a improvement plea. See United States v.
Passini, supra; cf. United States v. Davenport, supra. Contra
United States v. King, 3 M.J. 458 (C.M.A. 1977). Proceedings in
revision may be appropriate to correct a defect discovered after
final adjournment. United States v. Steck, 10 M.J. 412 (C.M.A.
1981). Even if a prejudicial defect in the agreement is found, as a
result of an inadequate inquiry or otherwise, allowing withdrawal
of the plea is not necessarily the appropriate remedy. See Santobello
v. New York, 404 U.S. 257 (1971); United States v. Kraffa,
11 M.J. 453 (C.M.A. 1981); United States v. Cifuentes, 11
M.J. 385 (C.M.A. 1981). If an adequate inquiry is conducted,
however, the parties are normally bound by the terms described
on the record. Id,; United States v. Cooke , 11 M.J. 257 (C.M.A.
1981). But see United States v. Partin, 7 M.J. 409 (C.M.A. 1979)
(the parties were not bound by military judge’s interpretation
which had the effect of adding illegal terms to the agreement; the
plea was held provident).
(g) Findings. This subsection is based on the last paragraph of
paragraph 70 b of MCM, 1969 (Rev.). See also Articles 39(a)(3)
and 52(a)(2). The discussion is new and recognizes that it may be
unnecessary and inappropriate to bring to the member’s attention
the fact that the accused has pleaded guilty to some offenses
before trial on the merits of others. See United States v. Nixon, 15
M.J. 1028 (A.C.M.R. 1983). See also United States v. Wahnon, 1
M.J. 144 (C.M.A. 1975).
1 9 9 0 A m e n d m e n t : T h e d i s c u s s i o n t o t h e s u b s e c t i o n w a s
changed in light of the decision in United States v. Rivera, 23
M.J. 89 (C.M.A.), cert. denied, 479 U.S. 1091 (1986).
(h) Later action. Subsection (1) is based on the fourth and fifth
sentences of the penultimate paragraph of paragraph 70 b of
MCM, 1969 (Rev.). Note that once a plea of guilty is accepted
the accused may withdraw it only within the discretion of the
military judge. Before the plea is accepted, the accused may
withdraw it as a matter of right. See United States v. Leonard, 16
M.J. 984 (A.C.M.R. 1983); United States v. Hayes, 9 M.J. 825
(N.C.MR. 1980).
Subsection (2) is based on the first two sentences in the penultimate
paragraph of paragraph 70 b of MCM, 1969 (Rev.) and on
Article 45(a). See also Fed. R. Crim. P. 32(d). The discussion is
based on United States v. Cooper, 8 M.J. 5 (C.M.A. 1979);
United States v. Bradley, 7 M.J. 332 (C.M.A. 1979). Subsection
(3) is based on United States v. Green, supra. See also United
States v. Kraffa, supra.
( i ) R e c o r d o f p r o c e e d i n g s . T h i s s u b s e c t i o n i s b a s e d o n s u b -
paragraph (4) of the first paragraph of paragraph 70 b of MCM,
1969. See also Article 54; H.R. Rep. No. 491, supra at 24; S.
A21-60
Rep. No. 486, supra at 21; ABA Standards, Pleas of Guilty supra
at §1.7. This subsection parallels Fed. R. Crim. P. 11(g), except
insofar as the former allows for nonverbatim records in inferior
courts-martial. See Article 54(b).
(j) Waiver. This subsection replaces the third paragraph in paragraph
70 a of MCM, 1969 (Rev.) which listed some things a
guilty plea did not waive, and which was somewhat misleading in
the wake of the pleading standards under United States v. Alef, 3
M.J. 414 (C.M.A. 1977). This subsection is based on Menna v.
New York, 423 U.S. 61 (1975); Tollett v. Henderson, 411 U.S.
258 (1973); Parker v. North Carolina, 397 U.S. 790 (1970);
McMann v. Richardson, 397 U.S. 759 (1970); Brady v. United
States, 397 U.S. 742 (1970); United States v. Engle, 1 M.J. 387
(C.M.A. 1976); United States v. Dusenberry, 23 U.S.C.M.A. 287,
49 C.M.R. 536 (1975); United States v. Hamil, 15 U.S.C.M.A.
110, 35 C.M.R. 82 (1964). See also subsection (a)(2) of this rule
and its analysis.
Rule 911 Assembly of the court-martial
The code fixes no specific point in the court-martial for
assembly although, as noted in the discussion, it establishes assembly
as a point after which the opportunities to change the
composition and membership of the court-martial are substantially
circumscribed. See United States v. Morris, 23 U.S.C.M.A. 319,
49 C.M.R. 653 (1975); United States v. Dean, 20 U.S.C.M.A.
212, 43 C.M.R. 52 (1970).
The purpose of this rule is simply to require an overt manifestation
of assembly in order to mark clearly for all participants the
point at which the opportunities to elect freely as to composition
or to substitute personnel has ended. Failure to make the announcement
described in the rule has no substantive effect other
than to leave open a dispute as to whether a change in composition
or membership was timely.
The rule prescribes no specific point for assembly. The points
noted in the discussion are based on paragraph 61 j of MCM,
1969 (Rev.). It is normally appropriate to assemble the courtm
a r t i a l a t t h e s e p o i n t s t o p r o t e c t t h e p a r t i e s f r o m u n t i m e l y
changes in membership or composition. In some circumstances
flexibility is desirable, as when the military judge approves a
request for trial by military judge alone, but recognizes that it
may be necessary to substitute another judge because of impending
delays. The discussion is also based on paragraphs 53 d(2)(c)
and 61 b of MCM, 1969 (Rev.).
Rule 912 Challenge of selection of members;
examination and challenges of members
(a) Pretrial matters. Subsection (1) recognizes the usefulness of
questionnaires to expedite voir dire. Questionnaires are already
used in some military jurisdictions. This procedure is analogous
to the use of juror qualification forms under 28 U.S.C. § 1864(a).
See also ABA Standards, Trial by Jury § 2.1(b) (1979). It is not
intended that questionnaires will be used as a complete substitute
for voir dire. As to investigations of members, see also ABA
Standards, The Prosecution Function § 3-5.3(b) (1979); The Defense
Function § 4-7.2(b) (1979).
Subsection (2) recognizes that in order to challenge the selection
of the membership of the court-martial (see subsection (b) of
this rule) discovery of the materials used to select them is necessary.
Such discovery is already common. See, e.g., United States