UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

OLMSCHEID, GALLUP, and KIRBY 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant First Class JAMES H. WILLIAMS 

United States Army, Appellant 

ARMY 20040760 

101st Airborne Division (Air Assault) 

Robert L. Swann (arraignment) and Lauren B. Leeker (trial), Military Judges 

Colonel Richard M. Whitaker, Staff Judge Advocate 

For Appellant: Bernard J. Casey, Esquire (argued); Kathy M. Banke, Esquire; 

Captain Charles L. Pritchard, Jr., JA; (on brief); Bernard J. Casey, Esquire; Captain 

Sean F. Mangan, JA (on reply brief). 

For Appellee: Captain Michael C. Friess, JA (argued); Lieutenant Colonel Michele 

B. Shields, JA; Major Tami Dillahunt, JA (on brief). 

11 April 2007 

------------------------------------- 

OPINION OF THE COURT 

-------------------------------------

KIRBY, Judge: 

 An officer and enlisted panel sitting as a general court-martial convicted 

appellant, contrary to his pleas, of willful dereliction of duty and armed robbery, in 

violation of Articles 92 and 122, Uniform Code of Military Justice, 10 U.S.C. §§ 892 

and 922 [hereinafter UCMJ]. The convening authority approved the adjudged 

sentence to a bad-conduct discharge and reduction to the grade of Private E1. 

This case is before the court for review pursuant to Article 66, UCMJ. We 

have considered the record of trial, appellant’s assignments of error, oral arguments, 

the matters appellant personally raised pursuant to United States v. Grostefon, 12 

M.J. 431 (C.M.A. 1982), the government’s response thereto, and appellant’s reply 

brief. We find the errors asserted by appellant to be without merit. Appellant’s 
WILLIAMS – ARMY 20040760 

2

assertion of improper withdrawal and re-referral of charges, however, is worthy of 

discussion. 

FACTS 

On 26 April 2003, appellant, a platoon sergeant, was traveling in a two 

vehicle convoy in Iraq heading to the local market to buy food and drinks for the 

soldiers. At an intersection, an Iraqi man driving a sport utility vehicle cut off the 

convoy, which proceeded to chase the vehicle until it came to a stop at a private 

residence. Appellant and Staff Sergeant (SSG) Lozano then approached the driver 

with weapons drawn, made him exit the vehicle and get down on the ground with his 

arms stretched above his head, and took the vehicle. They did not tell the Iraqi man 

why they were taking the vehicle, explain how he could get it back or be 

compensated, or leave a receipt as required by the Rules of Engagement (ROE) 

applicable at the time.1

 

On the way back to the ammunition supply point (ASP) where the unit was 

based, the convoy stopped along the side of the road, searched the vehicle interior 

and discarded many of its contents. The convoy removed the license plate and drove 

the Iraqi vehicle back to the ASP. At the ASP, appellant and SSG Lozano presented 

the vehicle’s keys to their platoon leader, Second Lieutenant (2LT) Pavlik, told him 

they had confiscated the vehicle for him, and cited the ROE as authority for seizing 

the vehicle. The platoon leader was concerned they had seized the vehicle at 

gunpoint and not left a receipt. Although 2LT Pavlik had told his soldiers 

previously that he needed a vehicle, he had not ordered any vehicle confiscated; nor 

was he authorized to issue such an order, as he was not the commander. 

Shortly thereafter, appellant directed his subordinate soldiers to intentionally 

damage the vehicle to change its appearance. The soldiers broke all of the vehicle’s 

windows, scratched and dented it, and tore off the spoiler and pinstripes, so that it 

looked different from the vehicle they had seized. Later that evening, as several 

soldiers from the platoon sat around a camp fire, 2LT Pavlik and appellant devised a 

story to tell anyone who asked them how they acquired the vehicle. The gist of the 

 

1

 The ROE provided: “Seize PRIVATE property only if it has a military use (e.g., 

weapons, ammunition, communication, equipment, or transportation) [and] your 

commander authorizes the seizure based on military necessity. Give the owner a 

receipt.” This was further reinforced by United States Central Command General 

Order Number 1A, which provided: “Private or public property may be seized during 

exercises or operations only on order of the Commander, when based on military 

necessity. Such property will be collected, possessed, secured and stored for later 

return to the lawful owner. The wrongful taking of private property, even 

temporarily, is a violation of Article 121, [UCMJ].” 
WILLIAMS – ARMY 20040760 

3

story was that the soldiers had found the vehicle abandoned on the side of the road. 

Appellant and 2LT Pavlik then coached the other soldiers on how to respond to 

questions if there was ever an investigation. Appellant told them that he used to be 

a police officer and that if everyone just “stuck to the story,” nothing would happen 

to them. Staff Sergeant Lozano, observing that some of the soldiers appeared 

frightened, told the soldiers that if they got scared and wanted to tell the truth they 

could do so and he would take responsibility for taking the vehicle. Appellant later 

chastised SSG Lozano, telling him that his comment would make the soldiers more 

likely to “squeal.” 

On 8 August 2003, charges were preferred against appellant and referred to a 

summary court-martial (SCM).2

 Appellant was charged with two specifications of 

dereliction of duty for failing to stop members of his platoon from drinking alcohol 

and failing to stop 2LT Pavlik from bringing personally owned firearms into the area 

of operations. He was also charged with making a false official statement (by 

stating they found the vehicle abandoned by the side of the road) and armed robbery 

for the theft of the vehicle. 

Prior to preferral and referral to a SCM, the trial counsel and defense counsel 

engaged in pretrial agreement negotiations, but never came to a meeting of the minds 

memorialized by a written agreement. The trial counsel was under the impression 

that they had “agreed” appellant would plead guilty and testify against the coaccuseds in exchange for a referral to a SCM. The trial counsel advised the 

convening authority that this “agreement” was a predicate for the SCM referral. The 

defense counsel and appellant, however, were under the impression that in order to 

secure a referral to a SCM, appellant would merely have to “fully cooperate.” They 

believed this to mean only that appellant would provide a sworn statement and 

testify in the trials of the co-accuseds; they did not believe appellant was required to 

plead guilty at the SCM. The charges were referred to a SCM without further 

clarification or discussion. 

Appellant met with the officer presiding over the SCM sometime in mid- 

 

2

 The maximum punishment authorized at a SCM of a sergeant first class (E7) is 

forfeiture of two-thirds pay for one month, restriction to specified limits for two 

months, and reduction to staff sergeant (E6). Rule for Courts-Martial [hereinafter 

R.C.M.] 1301(d). 
WILLIAMS – ARMY 20040760 

4

August for a preliminary proceeding in accordance with R.C.M. 1304(b)(1).3 The 

proceeding was informal with the two sitting at a table. There was not a recorder or 

anyone else present to make any notes of the proceeding.4 The presiding officer read 

the charges to appellant and the two discussed appellant’s rights, the procedures that 

would be followed at trial, and the date for the upcoming SCM trial proceeding. 

Appellant gave the presiding officer a list of requested witnesses for the SCM and 

the proceeding was adjourned until the agreed upon trial date. 

Sometime after the preliminary proceeding, the defense counsel asked the trial 

counsel if he expected appellant to plead “guilty” at the upcoming SCM trial 

proceeding phase. The trial counsel conveyed his and the convening authority’s 

understanding that the “agreement” required appellant to plead “guilty” and if 

appellant was now going to plead “not guilty,” the government would have to reexamine whether the charges had been referred to the appropriate level courtmartial. After discussion with appellant, the defense counsel informed the trial 

counsel that appellant planned to plead “not guilty” at the SCM. 

On 30 August 2003, the battalion commander who had referred the charges to 

the SCM withdrew the charges and dismissed them without prejudice. On 13 

September 2003, identical charges were re-preferred and the battalion commander 

appointed an officer to conduct a thorough and impartial investigation into the 

alleged offenses, pursuant to Article 32, UCMJ. On 5 April 2004, pursuant to the 

investigating officer’s recommendation, the battalion commander dismissed Charge 

I, Specification 2,5

 and Charge II and its Specification6 without prejudice and 

forwarded the remaining charges to the general court-martial (GCM) convening 

authority (GCMCA). On 6 April 2004, the GCMCA referred the remaining charges 

 

3

 Rule for Courts-Martial 1304(b) divides a SCM into two distinct phases. The first 

phase (R.C.M. 1304(b)(1)) is the preliminary proceeding where the accused is 

provided with basic information regarding the allegations and his rights. The 

accused is then provided “a reasonable period of time to decide whether to object to 

trial by SCM.” If the accused does not object to being tried by SCM then the SCM 

proceeds to the trial proceeding phase (R.C.M. 1304(b)(2)). It is during this second 

phase that the accused is arraigned and tried for the alleged offenses. Id. 

4

 Rule for Courts-Martial 1305 requires a record of trial be prepared in a SCM and 

outlines what the record shall contain. Trial counsel testified that it was his practice 

to “have a [paralegal] present as a recorder during a [SCM].” 

5

 Dereliction of duty for failing to stop 2LT Pavlik from bringing a privately owned 

firearm into the area of operations, in violation of Article 92, UCMJ. 

6

 Making a false official statement, in violation of Article 107, UCMJ. 
WILLIAMS – ARMY 20040760 

5

of dereliction of duty and armed robbery, in violation of Articles 92 and 122, UCMJ, 

to a GCM.7

At trial, the defense counsel moved to dismiss all the charges for improper 

withdrawal from the SCM and re-referral to a GCM without good cause. The 

defense argued that the government withdrew and re-referred the charges to a higher 

level court-martial in retaliation for appellant’s free exercise of his right to plead not 

guilty under the Fifth and Sixth Amendments to the U.S. Constitution8

 and R.C.M. 

910(a)(1).9 The government argued that the withdrawal and subsequent GCM 

referral were proper because new information was discovered after the initial 

referral indicating appellant was more culpable than he had initially led the trial 

counsel and convening authority to believe. The new information indicated 

appellant played a greater leadership role in the armed robbery and subsequent 

attempt to conceal the crime. The government also argued the convening authority 

had based his SCM referral decision on the belief that appellant was going to plead 

guilty and testify against the co-accuseds. 

The defense counsel fully litigated appellant’s claim of improper withdrawal 

and re-referrel to a GCM at trial. The military judge found there was no arraignment 

at the SCM preliminary proceeding and no meeting of the minds or pretrial 

agreement. Moreover, the military judge found the trial counsel discovered 

additional information indicating appellant was more culpable than initially thought. 

She found the convening authority withdrew the charges for a proper purpose and, 

therefore, denied the motion to dismiss. 

LAW 

 Rule for Courts-Martial 604 provides in pertinent part: 

(a) Withdrawal. The convening authority or a superior 

competent authority may for any reason cause any charges 

 

7

 The maximum punishment authorized for these offenses at a GCM was confinement 

for fifteen years and six months, a dishonorable discharge, forfeiture of all pay and 

allowances, and reduction to Private E1. 

8

 The Fifth Amendment states, inter alia, an accused shall neither be “compelled in 

any criminal case to be a witness against himself, nor shall be deprived of life 

liberty, or property without due process of law.” The Sixth Amendment, inter alia, 

protects the right of an accused in a criminal prosecution, “to a speedy and public 

trial.” 

9

 Rule for Courts-Martial 910(a)(1) lists “not guilty” as an authorized plea. 
WILLIAMS – ARMY 20040760 

6

or specifications to be withdrawn from a court-martial at 

any time before the findings are announced. 

(b) Referral of withdrawn charges. Charges which have 

been withdrawn from a court-martial may be referred to 

another court-martial unless the withdrawal is for an 

improper reason. 

 

The discussion section following R.C.M. 604(b) explains: 

Improper reasons for withdrawal include an intent to 

interfere with the free exercise by the accused of 

[C]onstitutional or codal rights, or with the impartiality of 

the court-martial. . . . Before arraignment, there are many 

reasons for a withdrawal which will not preclude another 

referral. These include . . . reconsideration by the 

convening authority or by a superior competent authority 

of the seriousness of the offenses . . . . Charges withdrawn 

after arraignment may be referred to another court-martial 

under some circumstances. For example, it is permissible 

to refer charges which were withdrawn pursuant to a 

pretrial agreement if the accused fails to fulfill the terms 

of the agreement. 

Rule for Courts-Martial 904 further provides: “Arraignment shall be conducted in a 

court-martial session and shall consist of reading the charges and specifications to 

the accused and calling on the accused to plead.” Finally, the discussion following 

R.C.M. 904 states: “Arraignment is complete when the accused is called upon to 

plead; the entry of pleas is not part of the arraignment.” See United States v. Boehm, 

17 U.S.C.M.A. 530 (1968); United States v. Jackson, 41 C.M.R. 677 (A.C.M.R. 

1970), pet. denied, 19 U.S.C.M.A. 403 (1970). 

DISCUSSION 

 The first issue we must determine is whether appellant was arraigned at the 

SCM preliminary proceeding. For the reasons articulated below, we agree with the 

military judge that appellant was not arraigned at the SCM. 

 Appellant argued at trial during the motion hearing and to this court that 

withdrawal of the charges from the SCM occurred after arraignment and was for the 

improper purpose of retaliating against him for asserting his Constitutional right to 

plead not guilty. Specifically, appellant asserted that he was read the charges and 

called upon to plead. As support for this assertion, appellant submitted an affidavit 
WILLIAMS – ARMY 20040760 

7

with his appellate pleadings in which he stated in pertinent part, with emphasis 

added: 

5. Major Hurley read from what appeared to be a 

script.[10] He told me he was the [SCM] officer. He read 

the charges from the charge sheet. He asked if I 

understood the charges and my rights under the [SCM] 

procedures. I responded that I did and handed him a 

written request for the appearance of specified witnesses 

and the identification and copies of other evidence. 

6. Major Hurley appeared surprised and said something to 

this effect: “So you are pleading not guilty?” I 

confirmed that I was. He said, in that case, he would 

attempt to produce the requested witnesses and evidence 

and that I was to report back to him to continue the trial in 

a specified time period which I believed to have been ten 

(10) days. Major Hurley said that if he could not produce 

the witnesses at that time, he would reschedule the 

proceedings and let me know. 

 Appellant’s testimony at trial, however, was far different. On direct 

examination, the following colloquy, with emphasis added, took place between the 

defense counsel and appellant: 

Q: Let’s get to the [SCM]. What happened at this 

hearing? 

A: I went to Mosul to the airfield. I met with Major 

Hurley, who had been appointed as the court-martialing 

[sic] officer. 

Q: How do you know that? 

A: Because when I sat down with him, he announced that 

that is what he was, that he was the [SCM] Officer. He 

gave me some paperwork to sign and informed me on what 

date that I would have to appear for the [SCM]. At that 

time, I presented him with my request for evidence and my 

witness list. 

 

10 A SCM script is found in the Manual for Courts-Martial, United States (2002 ed.) 

[hereinafter MCM], Appendix 9. 
WILLIAMS – ARMY 20040760 

8

Q: I’m sorry, keep going, Sergeant Williams. 

A: He seemed kind of surprised that I was doing that. He 

didn’t say anything. He said, “I’ll see you on” that 

date that he had put down on the sheet for me to be 

back for my [SCM]. 

Appellant’s testimony later continued with the following questioning by the 

military judge: 

Q: And when you saw Major Hurley, you all sat down and 

---- 

A: He announced that he was going to be the Officer in 

Charge of the [SCM]. He explained to me what his duties 

were as far as investigating the charges. He made it real 

clear that he was not biased in any way because I asked 

him the question of if he knew about the case or if he had 

formulated any opinions. He had me sign some paperwork 

to inform me of what day my [SCM] would be. I gave him 

the witness list that I requested. I gave him the request 

for evidence that Captain George had put together for me. 

Q: So, he basically apprised you of the rights that you had 

at the court-martial and when the court-martial would be? 

A: Yes, ma’am. 

 We agree with the military judge that appellant was not arraigned at the SCM. 

Arraignment occurs when an accused is read the charges and called upon to enter a 

plea. R.C.M. 904. Both appellant’s post-trial affidavit and trial testimony support 

the conclusion that the SCM officer proceeded consistent with the script found in 

MCM, Appendix 9, for the SCM preliminary proceeding. Clearly the purpose of the 

meeting was to read appellant the charges, explain the SCM procedures and 

appellant’s rights, and set a future date for the actual trial proceedings — a stage 

never reached in this case. As noted above, arraignment is not a part of the 

preliminary proceeding, but rather part of the subsequent SCM trial proceeding. 

R.C.M. 1304(b)(2); MCM, Appendix 9. 

Even if we accept appellant’s post-trial assertion, that the presiding officer 

asked him, “So you are pleading not guilty?” after appellant handed the presiding 

officer his witness list (contrary to his assertion at trial that the presiding officer 
WILLIAMS – ARMY 20040760 

9

“didn’t say anything”) this was not an arraignment. Rather, this was a preliminary 

and informal meeting to establish what would be required for the SCM trial 

proceeding. We find this to be no different than a military judge requiring counsel 

to submit a docketing request that includes anticipated pleas and forum, and 

proposed trial dates. See Army Reg. 27-10, Legal Services, Military Justice, para. 

5-21 (16 Nov. 2005).11 As indicated by the lack of a recorder and the informality of 

the meeting, the purpose of the initial meeting was not to formally call upon 

appellant to enter pleas, but to properly prepare the presiding officer for what he 

would need in order to conduct the SCM. See Jackson, 41 C.M.R. at 681 (holding 

that a discussion concerning pleas at an off-the-record R.C.M. 802 session did not 

constitute an arraignment). See also, R.C.M. 904 discussion (“The accused may not 

be arraigned at a conference under R.C.M. 802.”). 

 We also agree with the military judge that there was no pretrial agreement in 

this case. Rule for Courts-Martial 705(d)(2) requires “[a]ll terms, conditions, and 

promises between the parties shall be written. The proposed agreement will be 

signed by the accused and defense counsel, if any.” There was no written agreement 

in this case. Moreover, there was no meeting of the minds. There was serious 

disagreement as to a material term — how appellant would plead to the charges. 

This is not to say, however, as further discussed below, that the convening authority 

did not make his initial referral decision based upon certain factual assumptions —

one being that appellant would plead guilty to the charged offenses. 

 In claims of retaliatory prosecution for the exercise of Constitutional rights, 

appellant bears the burden of setting forth at least a prima facie case rebutting the 

“strong presumption that the convening authority performs his duties as a public 

official without bias.” United States v. Hagen, 25 M.J. 78, 84 (C.M.A. 1987) 

(citations omitted). For, “[a]s with a charge of selective prosecution, an accused 

must show more than a mere possibility of vindictiveness; he must show 

discriminatory intent.” Id. Once a prima facie case has been made that the 

convening authority acted vindictively or improperly, then the burden shifts to the 

government to disprove that claim. Id. 

 Appellant has failed to meet his burden in establishing a prima facie case that 

the charges were withdrawn from the SCM and subsequently re-referred to a general 

court-martial for a discriminatory purpose. Appellant asserts, inter alia, that 

because no pretrial agreement existed in this case, the convening authority 

improperly relied upon appellant’s failure to abide by the terms of the pretrial 

agreement as one of the reasons for withdrawing the charges from the SCM and rereferring them to a higher level court-martial. 

 

11 The version in effect at the time of trial is substantially identical. See Army Reg. 

27-10, Legal Services, Military Justice, para. 5-20 (6 Sept. 2002). 
WILLIAMS – ARMY 20040760 

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 We disagree. As discussed above, the government withdrew the charges in this 

case prior to arraignment. More importantly, even if the existence of a pretrial 

agreement were relevant, appellant has failed to show discriminatory intent by the 

convening authority. The discussion section of R.C.M. 604 specifically lists 

“reconsideration by the convening authority or by a superior competent authority of 

the seriousness of the offenses” as an example of a proper purpose. The 

memorandum for record from the convening authority, dated 23 July 2004, in the 

allied papers and the trial counsel’s testimony clearly explain why the convening 

authority initially referred this case to a SCM. That decision was based upon the 

following facts as understood by the convening authority at the time: (1) a lack of 

witnesses willing to testify would make prosecution of the responsible individuals 

difficult; (2) appellant’s rendition of events made him seem like a passive 

participant in the armed robbery; and (3) appellant would be willing to plead guilty 

to the offenses and testify against the other participants in the armed robbery. 

After SCM referral it became apparent that the convening authority’s initial 

understanding was not accurate. Based upon SSG Lozano’s proffer of expected 

testimony, it emerged that appellant served a much more prominent leadership role 

in the armed robbery and subsequent efforts to conceal the crime than trial counsel 

had been led to believe. Furthermore, other participants in the armed robbery 

corroborated SSG Lozano’s version and were now willing to testify, thus making 

appellant’s cooperation less important. Finally, appellant’s decision to plead not 

guilty removed a mitigating factor that had led the convening authority to refer the 

case to a SCM. Once the trial counsel informed the convening authority that the 

factual assumptions used in his referral decision were incorrect, the convening 

authority reconsidered the seriousness of appellant’s offenses and his referral 

decision. We do not find this to be an improper purpose. 

CONCLUSION 

The findings of guilty and the sentence are affirmed. 

 Senior Judge OLMSCHEID and Judge GALLUP concur. 

 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: