This opinion is subject to administrative correction before final disposition.

Before 

MONAHAN, STEPHENS, and DEERWESTER

Appellate Military Judges

_________________________

UNITED STATES

Petitioner

v.

Nicholas T. RAINES

Lance Corporal (E-3), U.S. Marine Corps

Accused / Real Party in Interest

_________________________

Nicholas S. Henry

Lieutenant Colonel (O-5), U.S. Marine Corps

Respondent

_________________________

No. 202200081

_________________________

Decided: 11 May 2022

Review of Petition for Extraordinary Relief in the Nature 

of a Writ of Mandamus

Military Judge: 

Nicholas S. Henry

Arraignment 25 October 2021 before a general court-martial convened

at Marine Corps Base Camp Lejeune, North Carolina.
United States v. Raines, NMCCA No. 202200081

Opinion of the Court

2

For Petitioner: 

Lieutenant Gregory A. Rustico, JAGC, USN

Major Kerry Friedewald, USMC

For Real Party in Interest: 

Lieutenant Aiden Stark, JAGC, USN

Senior Judge STEPHENS delivered the opinion of the Court, in which 

Chief Judge MONAHAN and Judge DEERWESTER joined.

_________________________

PUBLISHED OPINION OF THE COURT

_________________________

STEPHENS, Senior Judge:

Chief Justice Roberts once said, “Judges are like umpires. Umpires don’t 

make the rules, they apply them. The role of an umpire and a judge is critical. 

They make sure everybody plays by the rules, but it is a limited role. Nobody 

ever went to a ball game to see the umpire.”1 With that in mind, we consider 

whether a military judge may strike a term in a negotiated plea agreement and 

then rewrite the agreement to his own liking over the objection of one or both 

of the parties. The President does not have a line-item veto and neither does a

military trial judge. We answer in the negative.

I. BACKGROUND

A. United States v. Alkazahg

In September 2021, this Court published an opinion in United States v. Alkazahg.2 That case was a guilty plea involving a Marine who had made some 

vague threatening statements toward his command as he was departing Hawaii to go on leave in Nebraska. While on leave he was placed on a list shared 

by the Department of Defense with various law enforcement agencies showing 

he was absent without leave and dangerous. When he attempted entry onto a 

 

1 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing before the Committee of the Judiciary, 109 Cong. 55 

(2005) (Statement of John. G. Roberts, Jr.).

2 United States v. Alkazahg, 81 M.J. 764 (N-M. Ct. Crim. App. 2021).
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nearby Air Force base, he was detained and his vehicle was searched where 

firearms and ammunition were discovered. 

He eventually pleaded guilty to various charges and specifications and did 

so under the new sentencing structure pursuant to the Military Justice Act of 

2016 [MJA 16]. One feature of MJA 16 is “segmented” sentencing rather than 

“unitary” sentencing. In segmented sentencing by a military judge, a servicemember will be sentenced to confinement or fines for each individual specification, rather than the military judge announcing a unitary sentence for the 

entirety of the specifications. One of the other features of MJA 16 is that the 

parties can negotiate for minimum and maximum punishments, and those 

punishments can be the same in the plea agreement. 

In Alkazahg, we took issue with three of the plea agreement’s terms. The 

appellant’s confinement for the various specifications was to be served concurrently, with the largest confinement time set at 36 months. He was to be confined for 24 months for violating Article 107, UCMJ, when he told his gunnery 

sergeant what could be described as a “white lie.” He was to be confined for 24 

months for an additional specification of violating Article 107 for a transitory 

lie the appellant told to a law enforcement officer as he was about to search his 

vehicle. The appellant was also to be confined for 24 months for a fraudulent 

enlistment (the facts of which we will not review here). We affirmed the confinement for each of those specifications for only 30 days, 12 months, and 30 

days, respectively. In conducting our sentence appropriateness analysis, we 

noted:

We remind military judges, counsel, staff judge advocates, 

and convening authorities, that despite the changes from MJA 

16, military judges are still empowered to decline to accept terms 

contained in plea agreements that violate public policy, appellate case law, or fail to adhere to basic notions of fundamental 

fairness. See United States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 

2011); United States v. Hall, 26 M.J. 739, 743 (N-M. Ct. Mil. Rev. 

1988).3

B. The Military Judge Rejected a Term in the Plea Agreement

The Real Party in Interest, Lance Corporal (E-3) [LCpl] Raines, was under 

investigation for various sexual misconduct stemming from his requests to a 

woman to masturbate her two-year-old son and send him a recording of the 

 

3 Id. at 787 n.129.
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act. Lance Corporal Raines also possessed a video where he engaged in sexually explicit conduct with a minor. He was charged with:

Soliciting a woman to produce child pornography in violation 

of Article 82, UCMJ [Charge I, Specification 1];

Soliciting the same woman to distribute the video [Charge I, 

Specification 2];

Soliciting the woman to masturbate her two-year-old son

[Charge I, Specification 3];

Possessing child pornography in violation of Article 134, 

UCMJ [Charge II, Specification 1];

Producing child pornography [Charge II: Specification 2]; 

and

Distributing child pornography to himself [Charge II: Specification 3].

Each specification under Charge I allowed for a maximum punishment of total 

forfeitures, 10 years’ confinement, and a dishonorable discharge, as did Specification 1 of Charge II. Specifications 2 and 3 of Charge II, were the same, but

allowed for 30 and 20 years’ confinement, respectively.

Lance Corporal Raines, with the assistance of his trial defense counsel, entered into plea agreement negotiations with the convening authority. Lance 

Corporal Raines offered to plead guilty to soliciting the woman to masturbate 

her two-year-old son if the convening authority would drop the remaining

charges. For sentencing, LCpl Raines offered to be sentenced to reduction to 

E-1 and to receive forfeitures. He offered to not have any fines imposed on him.

For a confinement range, he offered a minimum of two months and a maximum 

of four months. Finally, in his offer, he agreed the military “shall” adjudge him 

a bad-conduct discharge.

The convening authority countered the offer of the two-to-four month range 

for confinement with his own offer of six-to-eight months. Lance Corporal

Raines accepted. About a week later, the trial counsel notified the trial judiciary at Camp Lejeune that LCpl Raines and the convening authority had a plea 

agreement. He sent it and the stipulation of fact to the judiciary as part of a 

joint motion for docketing. About a month later, the parties appeared before 

the Respondent for a guilty plea.

But the military judge did not accept the plea agreement as the parties had 

written it. Rather than reject the entire plea agreement—or inform the parties 

that he was rejecting the plea agreement because of a particular term or 

terms—he struck a single provision and believed he could continue with the 
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guilty plea with his amendment to their plea agreement. Specifically, the military judge struck the term “A Bad Conduct Discharge shall be adjudged.”

Both the Government and LCpl Raines objected. The Government eventually filed a bench brief with the military judge arguing that he did not have 

any authority to rewrite a term that he found objectionable in the plea agreement. The military judge informed LCpl Raines that he intended to rewrite the 

term and proceed with the plea agreement, and that LCpl Raines would have 

the opportunity to argue that he should not receive a punitive discharge and 

the Government would be free to argue that he could receive a dishonorable 

discharge.

C. The Government Sought a Writ of Mandamus

The Government and LCpl Raines both wanted to move forward with the 

guilty plea according to the terms they negotiated in their plea agreement. To 

that end, the Government filed a Petition for a Writ of Mandamus with this 

Court. In addition to the charge sheet, plea agreement, and stipulation of fact, 

the Petition included the Government’s bench brief to the military judge and 

the relevant transcripts. The Petition also included declarations from LCpl 

Raines and the Senior Trial Counsel [STC] at Camp Lejeune. Lance Corporal

Raines stated that he intended to be bound by the terms of his plea agreement. 

The STC’s declaration recounted several other cases at Camp Lejeune where 

the military judges expressed similar views concerning their authority to strike 

terms in plea agreements.

Here, the Government filed a Petition with this Court seeking a stay of the 

proceedings below and a writ of mandamus to vacate the military judge’s ruling

that he had authority to strike the term requiring him to award a bad-conduct 

discharge. We granted the Government’s request for a stay. The Real Party in 

Interest, LCpl Raines, elected not to file a responsive pleading. The Respondent relied on his written ruling contained in the record.4

II. DISCUSSION

As a preliminary matter, we are satisfied we have jurisdiction to consider 

this writ and to issue it under the All Writs Act.5 Such a writ is in aid of this 

 

4 Petitioner’s Motion to Attach, Apr. 29, 2022 (containing Military Judge’s Supp.

Ruling, Apr. 27, 2022).

5 28 U.S.C. § 1651 (2018).
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Court’s jurisdiction and is also necessary under the circumstances. Under Article 66, UCMJ, this Court has jurisdiction over all cases where the punishment includes a punitive discharge. Given that this is the precise issue impelling the writ, this clearly falls within this Court’s potential jurisdiction.6 Further, the issuance of the writ is necessary because the Government, and indeed 

LCpl Raines, too, is left without any realistic and timely method to attain relief. We now turn to whether the Government is entitled to a “clear and indisputable” right to the issuance of the writ and whether it is appropriate under 

the circumstances.7

First, our statement in Alkazahg was not a judicial grant of plenary authority for military judges to exercise a line-item veto over specific terms in 

plea agreements. Even if we thought that was a good idea, we have no authority to grant such power to the trial judiciary. We were simply reminding the 

trial judiciary that despite the bevy of changes from MJA 16, they still had the 

inherent gatekeeping authority—and duty—to reject plea agreements that “violate public policy, appellate case law, or fail to adhere to basic notions of fundamental fairness.”8 We used the phrase “terms contained in plea agreements” 

because we were referencing the “terms” of the segmented sentencing that appeared to bind the military judge in that case.9 This is in line with the Court 

of Appeals for the Armed Forces’ [CAAF] statement in United States v. Soto:

“Relatedly, it is the military judge’s ‘responsibility to police the terms of the 

pretrial agreements to insure compliance with statutory and decisional law as 

well as adherence to basic notions of fundamental fairness.’ ”10 This considers

the practical effect of letting the parties know what terms were causing the 

entire plea agreement to be rejected. The parties should not have to guess as 

to what term, or terms, caused the plea agreement to be rejected when they go 

back to the negotiating table.

Under Article 53a(b), UCMJ, Rule for Court-Martial [R.C.M.] 705(c)(1)(B), 

R.C.M. 910(f), and relevant case law, military judges do have authority to reject a term, or terms, in a plea agreement. But that authority does not include 

 

6 United States v. Brown, 81 M.J. 1 (C.A.A.F. 2021).

7 Hasan v. Gross, 71 M.J. 416, 418 (C.A.A.F. 2012) (citation omitted).

8 Alkazahg, 81 M.J. at 787 n.129.

9 Id.

10 United States v. Soto, 69 M.J. 304, 307 (C.A.A.F. 2011) (quoting United States v. 

Partin, 7 M.J. 409, 412 (C.M.A. 1979)) (emphasis added).
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excising out a single term or terms, or otherwise rewriting the agreement as 

they see fit, and then proceeding with the new plea agreement over the objection of the parties. Rather, our dicta in Alkazahg must be read in conjunction 

with the UCMJ, the Rules for Courts-Martial, and relevant case law. Article 

53a(b)(5), UCMJ, requires that a military judge “shall reject a plea agreement,” 

when one or more of its terms make it “contrary to, or inconsistent with, a 

regulation prescribed by the President with respect to terms, conditions, or 

other aspects of plea agreements.”

In United States v. Green,11 the Court of Military Appeals explained that

“[w]here the plea bargain encompasses conditions which the trial judge believes violate either appellate case law, public policy, or the trial judge’s own 

notions of fundamental fairness, he should, on his own motion, strike such provisions from the agreement with the consent of the parties.”12 Thus, absent the 

parties’ consent to such judicial modifications, a military judge may only choose 

to reject the entire agreement based on the objectionable term or terms included within the agreement. 13 Article 53a(b)(1), UCMJ, states that a military 

judge “shall reject a plea agreement” that contains a provision that has not 

been accepted by both parties. It is obvious that neither the Government nor 

LCpl Raines is willing to accept the new judicially imposed term in this plea 

agreement concerning whether to award a punitive discharge and what kind 

of discharge it might be. This takes us to R.C.M. 705(c)(1)(A) and (B). A military judge must reject a “term or condition in a plea agreement” if “the accused 

did not freely and voluntarily agree to it.”14 A military judge must also reject a 

“term or condition” in a plea agreement plea that deprives an accused of, 

among other things, his “right to due process.”15 Lance Corporal Raines did not 

freely and voluntarily agree to the judicially amended provision in the plea 

agreement. 

Under R.C.M. 910(f), a military judge may not accept a plea agreement if 

it violates R.C.M. 705, or if either party does not understand or agree to the 

plea agreement’s terms. R.C.M. 910(f) also states that if the military judge rejects a plea agreement, he shall issue a statement explaining the basis for the 

 

11 United States v. Green, 1 M.J. 453 (C.M.A. 1976).

12 Green ̧ 1 M.J. at 456 (emphasis added).

13 Article 53a(b)(5), UCMJ (emphasis added).

14 R.C.M. 705(c)(1)(A).

15 R.C.M. 705(c)(1)(B).
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rejection—where we assume the military judge would state what term or terms 

are objectionable and explain why—and allow the accused to withdraw his 

plea. The military judge then would inform the accused that the full range of 

lawful punishments could apply. Here, neither party agrees to the military 

judge’s re-write of the plea agreement’s terms. Therefore, under the Rule, the 

military judge must reject the new plea agreement he wrote because the parties themselves do not agree with it and because he has no authority under any 

rule, statute, or case law to exercise a line-item veto.16 Just as the umpire is 

not a ballplayer, a military judge is not a party to a plea agreement. But like 

the umpire, he ensures a plea agreement is conducted according to the rules.

The military judge’s justifications derive from our dicta in Alkazahg and a

due process argument that a military judge is not required to merely be an 

“arm of the command” in sentencing.17 As we have already explained, the dicta 

in Alkazahg is merely a reminder that, despite the changes in MJA 16, military 

judges are not just passive observers during a guilty plea. But they may only 

act within the boundaries of the UCMJ and the Rules for Courts-Martial.

Military judges are not required to be mere functionaries of a convening 

authority. While it is true that MJA 16 may reduce the discretionary decisionmaking a military judge can have in sentencing, the military judge’s judicial 

gatekeeping functions are still central to the process of pleading guilty. However, we do not discern in any way that the congressional removal of executive 

power from convening authorities over the last decade vested military judges 

with the executive authority to re-write plea agreements and force one or both 

of the parties to accept the new agreement.

In Ortiz v. United States,18 the Supreme Court definitively answered the 

question as to whether it possessed jurisdiction over CAAF cases. In answering 

in the affirmative, the Supreme Court noted the “military justice system’s essential character” is “judicial.”19 Whatever limitations MJA 16 may have for 

 

16 While a military judge can tell the parties what term or terms is causing the 

entire plea agreement to be rejected, the military judge cannot become a party to the 

negotiations by suggesting how to alter the plea agreement. Supervisory counsel and 

staff judge advocates are more than qualified to assist the parties, but the military 

judge may not.

17 Military Judge’s Supp. Ruling at 5.

18 Ortiz v. United States, ___ U.S. ___, 138 S. Ct. 2165 (2018).

19 Id. at 2174.
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military judges, the entire court-martial system is still judicial in nature and 

is a far cry from (as described in Ortiz) General Ambrose Burnside’s special 

commission to try persons within the Military Department of Ohio who were 

aiding the Confederacy—which was not judicial in nature and therefore not

subject to the Supreme Court’s appellate jurisdiction. Ortiz stated that “courtsmartial have operated as instruments of military justice, not mere military 

command.”20 And that is still true, despite the changes from MJA 16. But nothing in Ortiz countenances authority for a military judge to re-draft plea agreements over the objections of one or both of the parties.

It is commendable (and required) that military judges give such serious 

consideration to each and every term in a plea agreement especially concerning 

notions of fundamental fairness—which “refers to the particular interests of 

an accused”—and public policy—which “generally refers to societal interests 

above and beyond those of an individual accused.”21 Unless both of the parties

agree to some new terms of their choosing that render the plea agreement acceptable to the military judge, then one or both of the parties could petition 

this Court to order the military judge to accept the plea agreement. If we accepted the petition, we would then consider whether the military judge abused 

his discretion. But we imagine that rejections of plea agreements by military 

judges will continue to be extremely rare.22

 

20 Id. at 2175.

21 United States v. Hall, 26 M.J. 739, 743 (N-M.C.M.R. 1988). We also note that 

solicitation under Article 82, UCMJ, does not have the same mandatory or maximum 

punishments as the completed act of sexual assault of a child under Article 120b, 

UCMJ. However, even for the completed offense here, though Article 56(b)(2)(D) would 

otherwise mandate a dishonorable discharge, under Article 53a(c)(1), a plea agreement 

may include a term that nevertheless provides for a bad conduct discharge. It would 

follow that society’s interest would not be grossly offended if an accused was allowed 

to plead down to a bad conduct discharge for merely soliciting an offense when the 

UCMJ specifically allows such a plea for the completion of that offense. See Article

53a(c)(1), UCMJ.

22 The Military Justice Review Group [MJRG] drafted a Legislative Report for Article 53a, UCMJ. We note the MJRG recommended that a military judge have authority to reject a plea agreement if the sentence agreement is “plainly unreasonable” and 

such a decision would be reviewed for an “abuse of discretion.” See United States Department of Defense Military Justice Review Group, Report of the Military Justice Review Group Part I: UCMJ Recommendations, 33–34 (2015). While “[i]t is the statute, 

and not the legislative history, which has meaning and the force of law,” we simply 

note the MJRG’s conclusions match our own. In re Gilpin, 81 M.J. 702, 708 n.31 (N-M. 

Ct. Crim. App. 2021).
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III. CONCLUSION

After careful consideration, the petition for extraordinary relief in the nature of a Writ of Mandamus is GRANTED. We VACATE the military judge’s 

ruling in which he struck the term “A Bad Conduct Discharge shall be adjudged” from the plea agreement and remand this case to the convening authority for action consistent with this Opinion.

Chief Judge MONAHAN and Judge DEERWESTER concur.

FOR THE COURT:

RODGER A. DREW, JR.

Clerk of Court