This opinion is subject to administrative correction before final disposition.

Before MONAHAN
, S TEPHENS , and DEERWESTER Appellate Military Judges

_________________________



### U NITED STATES Petitioner

v.

Nicholas T. RAINES Lance Corporal (E

- 3 ), U.S. Marine Corps Accused / Real Party in Interest

_________________________



### N icholas S. Henry Lieutenant Colonel (O

- 5 ), U.S. Marine Corps Respondent

_________________________



### N o. 202 2 0008 1

_________________________

D ecided: 1 1 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.U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

2 For Petitioner : Lieutenant Gregory A. Rustico, JAGC, USN Major Kerry Friedewald, USMC

For R eal 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.

_________________________

P UBLISHED OPINION OF THE COURT

_________________________

S T EPHENS
, Senior Judge:
Chief Justice Roberts once said, “J udges 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 i s 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 bo th of the parties

. T he President does not have a line

- item veto and neither do es a military trial judge. W e answer in the negative.



### I. B ACKGROUND

A. United States v. Alkazahg In September 2021, this Court published an opinion in United States v. Alkazahg

. 2 Th at case was a guilty plea involving a Marine who had made some vague threat en ing 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 on to 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).U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

3 nearby Air Force base, he was detained and his vehic le was searched where firearms and a mmun i tion 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 . O ne o f the o ther features of MJA 16 is that the part ies 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 fo r a n 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 day s, respectively. In conducting our sentence appropriate ness analysis, we noted: We remind military judges, counsel
, staff j udge advocates, and convening authorities, that despite the changes from MJA 16, military judges are still empowered to decline to accept termscontained 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 request s to a

woman to masturbate her two

- year

- old son and send him a recording of the

3 Id

. at 787 n.129.U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

4 act. Lance Corporal Raines also possessed a video where he engaged in sexually explicit conduct with a minor . He was charged with:
S oliciting a woman to produce child pornography in violation of Art icle 82, UCMJ [Charge I, Specification 1];
S oliciting the same woman to distribute the video [Charge I, Specification 2] ; S olici ting the woman to masturbate her two

- year

- old son [ Charge I, Specification 3 ] ;
P ossessing child pornography in violation of Article 134, UCMJ [Charge II, Specification 1] ;
P roducing child pornography [Charge II: Specification 2] ; and

D istributing child po rnography to himself [ Charge II: Specification 3 ]

. Each specification under Charge I allowed for a maximum punishment of totalforfeitures, 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 int o plea agreement negotiations with the convening authority. Lance Corporal Raines offe red to plead guilty to soliciting the woman to masturbate her two

- year

- old son i f 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 count ered 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 a uthority had a plea agreement. He sent it and the stipulation of fact t o 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 t he military judge did not accept the ple a 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 th eU nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

5guilty 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 mil itary judge arguing that he did not haveany 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 Rain es 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 the ir plea agreement. To th at end, the Government filed a Petition for a Writ of M andamus with this Court . In addition to the charge s heet, plea agreement , and stipulatio n of fact, the P etition included the Government’s bench brief to the military judge and the relevant transcripts. T he P etition also included declaration s from LCpl Raines and the Senior Trial Counsel [STC] at Camp Lejeune

. Lance Corporal Raines stat ed 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 , t he Gove rnment filed a P etition 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 requir ing him to award a bad

- conduct discharge. We granted the Government’ s request for a stay . The Real Party inInterest, LCpl Raines, elected not to file a responsive pleading. The Respondent relied on his written ruling contained in the record. 4



### II. D ISCUSSION

As a prelimina ry 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
, A pr. 29, 2022 ( containing Military Judge ’ s Supp

. Ruling, Apr. 27, 2022).

5 28 U.S.C. § 1651 (2018)

.U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

6 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 th is is the precise issue impelling the writ
, this clearly falls within thi s Court’s potential jurisdiction. 6 Further, the issuance of the writ is necessary because the Government, and indeed LCpl R aines, too, is left without any realistic and timely method to at tain 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, o ur statement in Alkazahg was not a judicial grant of plenary authority for military judges to exercise a line

- item veto over specific terms inplea 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 t he 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 W e 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 ba sic 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, ca u sed the plea agree ment to be rejected when they go back to the negotiating table.

U nder 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).U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

7 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 Alk azahg 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 inconsiste nt 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 ownnotions 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
par ties ’ 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 awar d 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 jud ge must also reject a “term or condition” in a plea agreement plea that de p rives 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
agre ement. 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 agr e ement , 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).U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

8 rejection

— where we assume the m ilitary 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

- writ e of the plea agreement’s terms. Therefore, under the R ule, 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 J ust 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 M JA 16, military j u d ges 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 decisio n

making 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 c ongressional removal of executive
power from convenin g 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
qu estion as to whether it possessed jurisdiction over CAAF cases. In answering in the affirmative, the Supreme Court noted the “military justice syste m ’s essential character ” is “ judicial.” 19 Whatever limitations MJA 16 m ay 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

. S upervisory counsel and staff ju dge 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.U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

9 military judges, the entir e court

- martial system is still judicial in nature and is a far cry from (as described in Ortiz ) General Ambrose Burnside’s special commis sion to try persons within the M ilitary Department of O hio 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 “courts

martial have operated as instruments of military justice, not mere military command.” 20 And that is still true, despite the changes from MJA 16. But n othing in Ortiz countenances authority for a military judge to re

- draft plea agreement s over the objections of one or both of the parties.
It is commendable ( and required ) that military judges give such serious consideration to ea ch 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 acc used.” 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, w e would then consider whether the military judge abused his discretion. But w e imagine that rejections of plea agreements by military judges wil l continue to be extremely rare. 22

20 Id . at 2175.

21 United States v. H all , 26 M.J. 739, 743 (N

- M.C.M.R. 1988). We also note that solicitation under Art icle 8 2 , UCMJ, does not have the same mandatory or maximum punishments as the completed act of sexual assault of a child under Art icle 120b, UCMJ. However, even for the completed offe nse here
, though Art icle 56(b)(2) (D) would otherwise mandate a dishonorable discharge, under Art icle 53 a (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 Art icle 53 a(c)(1), UCMJ.

22 T he Military Justic e 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).U nited States v. Raines
, NMCCA No. 2022 00081 Opinion of the Court

10 

### III. C ONCLUSION

After careful consideration, the petition for extraordinary relief in the nature of a Writ of Mandamus is GRANTED . W e 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 convenin g authority for action consistent with this Opinion.
Chief J udge MONAHAN and Judge DEERWESTER concur

.

FOR THE COURT:

RODGER A. DREW, JR. Clerk of Court