## UNITED STATES ARMY COUR T 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 Divi sion (Air Assault) Robert L. Swann (arraignmen t) and Lauren B. Leeker (trial), Military Judges

Colonel Richard M. Whitake r, Staff Judge Advocate

For Appellant: Bern ard J. Casey, Esquire (argue d); 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: Captai n Michael C. Friess, JA (argue d); 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 pl eas, of willful dere liction of duty an d armed robbery, in

violation of Articles 92 and 122, Uniform Code of Milita ry Justice, 10 U.S.C. §§ 892 and 922 [hereinafter UCMJ]. The conven ing authority approv ed 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, appella nt’s assignments of er ror, oral arguments, the matters appellant person ally 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’sWILLIAMS – ARMY 20040760

2 assertion of improper withdrawal and re-refer ral of charges, howe ver, is worthy of

discussion.

FACTS

On 26 April 2003, appellant, a platoon sergean t, was traveling in a two vehicle convoy in Iraq heading to the local market to buy food and dr inks for the

soldiers. At an intersecti on, an Iraqi man dr iving a sport utility vehicle cut off the convoy, which proceeded to chase the vehicle until it cam e to a stop at a private residence. Appellant and Staff Sergeant (SSG) Lozano then ap proached the driver with weapons drawn, made him exit the ve hicle 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, expl ain how he could get it back or be compensated, or leave a receipt as requ ired 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 sto pped along the side of the road, searched the vehicle interior and discarded many of its contents. The convoy rem oved 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, Seco nd Lieutenant (2LT) Pavlik, told him they had confiscated the vehi cle for him, and cited the RO E as authority for seizing the vehicle. The platoon le ader was concerned they ha d seized the vehicle at gunpoint and not left a rece ipt. 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 ha d seized. Later that evening, as several soldiers from the plat oon sat around a camp fi re, 2LT Pavlik and appellant devised a story to tell anyone who aske d 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, comm unication, 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 ma y be seized during exercises or operations only on order of the Commander, when based on military necessity. Such property will be collecte d, possessed, secured and stored for later

return to the lawful owne r. The wrongful taking of private property, even temporarily, is a violation of Article 121, [UCMJ].”WILLIAMS – ARMY 20040760

3 story was that the soldiers ha d found the vehicle abandoned on the side of the road. Appellant and 2LT Pavlik then coached th e 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 Lo zano, observin g that some of the soldiers appeared frightened, told the soldiers that if they go t scared and wanted to tell the truth they

could do so and he would ta ke responsibility for taking th e vehicle. Appellant later chastised SSG Lozano, telli ng him that his comment woul d make the soldiers more likely to “squeal.”

On 8 August 2003, ch arges were preferre d against appellant and referred to a summary court-martial (SCM). 2 Appellant was charged wi th two specifications of dereliction of duty for faili ng to stop members of his platoon from drin king alcohol and failing to stop 2LT Pavlik from bringing personally owned firearms into the area of operations. He was also charged with making a fa lse official statement (by stating they found the vehicl e abandoned by the si de of the road) and armed robbery

for the theft of the vehicle.

Prior to preferral and referral to a SC M, the trial counsel and defense counsel engaged in pretrial agreemen t 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 tes tify 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 th e SCM referral. The

defense counsel a nd 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 m ean only that appell ant would provide a sworn statement and testify in the trials of the co-accuseds; they did not believe appellan t 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 auth orized at a SCM of a serg eant first class (E7) is forfeiture of two-thirds pa y for one month, restriction to specified limits for two months, and reduction to sta ff sergeant (E6). Rule for Courts-Martial [hereinafter R.C.M.] 1301(d).WILLIAMS – ARMY 20040760

4 August for a preliminary pr oceeding 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 presidin g 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 upcomi ng SCM trial proceeding. Appellant gave the presiding officer a list of requeste d witnesses fo r the SCM and the proceeding was adjourned until the agreed up on trial date.

Sometime after the preliminary proceeding, the defense counsel asked the trial counsel if he expected appellant to pl ead “guilty” at th e upcoming SCM trial proceeding phase. The trial counsel conv eyed his and the c onvening authority’s understanding that the “agr eement” 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 re ferred to the appropriate level courtmartial. After disc ussion with appellant, the defe nse counsel informed the trial counsel that appellant planned to pl ead “not guilty” at the SCM.

On 30 August 2003, the ba ttalion commander who had referred the charges to the SCM withdrew the charges and dismis sed them without prejudice. On 13 September 2003, identical ch arges were re-preferred and the battal ion commander appointed an officer to conduct a thoro ugh and impart ial investigation into the alleged offenses, pursuant to Article 32, UCMJ. On 5 April 2004, purs uant to the investigating officer’s re commendation, the battalion commander dismissed Charge I, Specification 2, 5 and Charge II and its Specification 6 without pr ejudice and forwarded the remaining charges to the general court-martial (GCM) convening authority (GCMCA). On 6 April 2004, the GC MCA referred the remaining charges

3 Rule for Courts-Martial 13 04(b) divides a SCM into two distinct phases. The first phase (R.C.M. 1304(b)(1)) is the preliminary procee ding where the accused is provided with basic informat ion regarding the allegati ons and his ri ghts. The accused is then provided “a reasonable period of time to d ecide whether to object to trial by SCM.” If the accused does not object to being trie d by SCM then the SCM proceeds to the trial proceedin g 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 130 5 requires a record of trial be prepared in a SCM and

outlines what the record shall contain. Trial coun sel testified that it was his practice to “have a [paralegal] present as a recorder during a [SCM].”

5 Dereliction of duty for faili ng to stop 2LT Pavlik from bringing a pr ivately owned firearm into the area of operations, in violation of Article 92, UCMJ.

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

5 of dereliction of duty and ar med 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 a nd re-referral to a GCM wi thout good ca use. The defense argued that th e government withdrew and re-ref erred the charge s to a higher

level court-martial in retaliat ion for appellant’s fr ee exercise of his right to plead not guilty under the Fifth and Sixth Ame ndments to the U. S. Constitution 8 and R.C.M. 910(a)(1). 9 The government argu ed that the withdrawal and subsequent GCM referral were proper because new information was discovered after the initial referral indicating ap pellant 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 ro le in the armed robb ery and subsequent attempt to conceal the crime. The governm ent also argued the convening authority

had based his SCM referral de cision on the belief that appellant was go ing 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 j udge 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 pr oper purpose and, therefore, denied the motion to dismiss.

LAW

Rule for Courts-Martial 604 provides in pertinent part:

(a) Withdrawal . The convening auth ority or a superior competent authority may for any reason cause any charges

7 The maximum punishment auth orized for these offenses at a GCM was confinement for fifteen years and six months, a dishonorab le discharge, forfeiture of all pay and allowances, and reductio n to Private E1.

8 The Fifth Amendment states, inter alia , an accused shall neit her be “compelled in any criminal case to be a witness against himself, nor shall be deprived of life liberty, or property without due proc ess of law.” The Sixth Amendment, inter alia

, protects the right of an accused in a criminal pros ecution, “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-martia l unless the withdrawal is for an improper reason.

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

Improper reasons for withdraw al include an intent to

interfere with the free exer cise by the accused of [C]onstitutional or co dal rights, or with the impartiality of

the court-martial. . . . Before arraignm ent, there are many

reasons for a withdrawal whic h 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 referr ed to another court-martial

under some circumstances. For example, it is permissible to refer charges wh ich were withdraw n 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 pl ead.” Finally, the discussion following

R.C.M. 904 states: “A rraignment is complete when th e accused is ca lled upon to plead; the entry of pleas is not pa rt 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 wa s 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 tria l during the motion hearing and to this court that withdrawal of the charge s from the SCM occurred after arraignment an d was for the improper purpose of retaliating against him for asser ting his Constitutional right to plead not guilty. Specifical ly, appellant asserted that he was read th e charges and called upon to plead. As support for this assertion, appellant submitted an affidavitWILLIAMS – ARMY 20040760

7 with his appellate pleadings in which he stated in pe rtinent 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 char ges and my rights under the [SCM] procedures. I re sponded that I di d and handed him a written request for th e appearance of sp ecified 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 th at case, he would attempt to produce the request ed 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 Hu rley said that if he could not produce

the witnesses at that time , he would re schedule the proceedings and let me know.

Appellant’s testimony at trial, howe ver, was far different. On direct examination, the following co lloquy, with empha sis 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 th e court-martialing [sic] officer.

Q: How do you know that?

A: Because when I sat down wi th him, he announced that that is what he was, that he was the [SCM] Officer. He gave me some paperwork to si gn and informed me on what date that I would have to appe ar for the [SCM]. At that time, I presente d him with my request for evidence and my

witness list.

10 A SCM script is found in the Manual for Courts-Mar tial, United States (2002 ed.) [hereinafter MCM ], Appendix 9.WILLIAMS – ARMY 20040760

8 Q: I’m sorry, keep goi ng, Sergeant Williams.

A: He seemed kind of surp rised that I was doing that. He didn’t say anything. He sa id, “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 testimon y later continued with the following ques tioning by the military judge:

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

----

A: He announced th at he was going to be the Officer in Charge of the [SCM]. He explained to me what his duties were as far as investigating th e 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 th e request for evidence that Captain Geor ge 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 arra igned at the SCM. Arraignment occurs when an accused is read the charges and call ed upon to enter a plea. R.C.M. 904. Both ap pellant’s post-trial affidavi t and trial testimony support

the conclusion that th e SCM officer proceede d consistent with th e script found in

MCM , Appendix 9, for the SCM preliminary proceeding. Clearly the purpose of the meeting was to read appellant the char ges, 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, arraignm ent 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 th e presiding officer asked him, “ So you are pleading not guilty? ” after appellant ha nded the presiding

officer his witness list (contrary to his asse rtion at trial that the presiding officerWILLIAMS – ARMY 20040760

9 “ didn’t say anything ”) this was not an a rraignment. 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 Servic es, Military Justice, para. 5-21 (16 Nov. 2005). 11 As indicated by the lack of a recorder an d the informality of the meeting, the purpose of the initial meeting was not to formally call upon appellant to enter pleas, bu t 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 co ncerning 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 conferen ce under R.C.M. 802.”).

We also agree with the military judge th at 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 shal l be written. The proposed agr eement will be signed by the accused and defe nse counsel, if any.” Ther e 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 appell ant would plead to the charges. This is not to say, however, as further di scussed below, that th e convening authority

did not make his initia l referral decision based upon certain f actual assumptions — one being that appellant would plead guilty to the charged offenses.

In claims of retaliatory prosecution fo r the exercise of C onstitutional 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 se lective prosecution, an accused

must show more than a me re possibility of vindic tiveness; he must show discriminatory intent.” Id. Once a prima facie case has been made that the convening authority acted vind ictively or improperly, then the burden shifts to the government to dispro ve that claim. Id.

Appellant has failed to meet his burden in establishing a prima facie case that the charges were withdrawn from the SCM a nd subsequently re-refe rred to a general court-martial for a discriminatory purpose. Appe llant asserts, inter alia , that because no pretrial agreement existed in this case, the convening authority improperly relied upon appella nt’s failure to abide by the terms of the pretrial agreement as one of the reasons for with drawing the charges from the SCM and rereferring them to a higher le vel court-martial.

11 The version in effect at the time of trial is substan tially identical. See Army Reg. 27-10, Legal Services, Military Ju stice, para. 5-20 (6 Sept. 2002).WILLIAMS – ARMY 20040760

10 We disagree. As discussed above , the government withdrew the charges in this case prior to arraignment. More important ly, even if the existence of a pretrial agreement were relevant, appe llant has failed to show di scriminatory 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 offe nses” as an example of a proper purpose. The

memorandum for record from the convening authority, da ted 23 July 20 04, in the allied papers and th e trial counsel’s testimony clea rly explain why the convening authority initially referred th is 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 prosecutio n of the responsi ble individuals difficult; (2) appellant’s re ndition of events made him seem like a passive participant in the armed robbery; and (3) a ppellant would be will ing to plead guilty to the offenses and testify against the other participants in the armed robbery.

After SCM referral it beca me apparent that the co nvening authority’s initial understanding was not accurate. Based upon SSG Lo zano’s proffer of expected testimony, it emerged that appellant served a much more prominent leadership role in the armed robbery and subs equent efforts to conceal the crime th an trial counsel

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

corroborated SSG Lozano’s ve rsion and were now willi ng to testify, thus making appellant’s cooperation less important. Finally, appell ant’s decision to plead not guilty removed a mitigating fact or that had led the convening authority to refer the

case to a SCM. Once the trial counsel in formed 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 impr oper purpose.

CONCLUSION

The findings of guilty and th e sentence are affirmed.

Senior Judge OLMSCHEID and Judge GALLUP concur.

MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: