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## S TATES 

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_______ _______ __________

No. ACM S32424

_______ _______ __________

UNITED STATES Appellee

v.

Darrion A. HOARD
Airman Basic (E

- 1 ) , U.S. Air Force, Appellant

_______ _______ __________ Appeal from the United S ta tes Air Force Trial Judiciary

Decided 31 January 2018

________________________ Military Judge: Matthew S. Ward

. Approved sentence: Bad

- conduct dis charge, confinement for six months

, and a reprimand. Sentence adjudged 19 July 2016 by SpCM convened
at Minot Air Force Base, North Dakota

. For Appellant: Major Annie W. Morgan , USAF ; Captain Patrick A. Clary , USAF

. For Appellee: M ajor Amanda L.K. Linares , USAF; Major Mary Ellen Payne, USAF ; Major Meredith L. Steer, USAF ; Gerald R. Bruce, Esquire

. Before HARDING

, SPERANZA , and HUYGEN

, Appellate Military Judges

. Senior Judge HARDING delivered the opinion of the c ourt, in which Judge s SPERANZA and HUYGEN joined.

_______ _______ __________

This is an unpublished opinion and, as such, does not serve as precedent under AFCCA Rule o f Practice and Procedure 18.4.

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HARDING , Senior Judge:

In accordance with his pleas pursuant to a pretrial agreement (PTA) , a military judge found Appellant guilty of one specification of attempted larceny of military pr operty (a night vision device) in violation of Article 80 , UniformUnited States v. Hoard , No. ACM S32424

2 Code of Military Justice (UCMJ), 10 U.S.C. § 880 ; two specifications of conspiracy ( to stea l and sell military property) in violation of Article 81 , UCMJ, 10 U.S.C. § 881 ; one specification of unauthorized sale of military property ( four gunsights) in violation of Artic le 108, UCMJ, 10 U.S.C. § 908; and one specification of larceny of military property (four gunsights) in violation of Artic le 121, UCMJ, 10 U.S.C. § 921. The military judge se ntenced Appellant to a bad

conduct discharge, confinement fo r six months , and a reprimand. The convening authority app roved the sentence as adjudged.

Appellant asserts the terms of his PTA requir ed him to forfeit the marital privilege in violation of publi c policy. We disagree, find no prejudicial error

, and affirm.

I. B ACKGROUND
Appellant conspir ed with his wife, A1C KB , to steal military property of a combined value greater than $5,000 .00 and then to sell the stolen military property online. In furtherance of their conspiracy, Appellant and A1C KB successfully stole and then sold four a dvanced c ombat o ptical g unsights. Their attempt to steal a night vision device failed.

Prior to trial, Appellant and the convening authority entered into a PTA in which Appell ant agreed to plead guilty and offered , among other terms, to cooperate in the investigation and prosecution of A1C KB. In exchange, the convening authority agreed to limit the amount of confinement he would approve

. Appellant now seeks to have this court find the following terms of the PTA to violate public policy :
Upon a grant of immunity from the General Court Martial Convening Authority

. . . to truthfully answer any questions posed to me by counsel pertaining to, and to testify at any proceeding held p ursuant to the Uniform Code of Military Justice (10 U.S.C. § 801, et seq.), concerning any offenses alleged against A1C [KB], to the extent I have knowledge of such offenses.

To truthfully answer any questions posed to me by counsel pertaining to, and to a ssist counsel in the recovery efforts of, any stolen property of the United States Air Force of which I have knowledge, a ny stolen property of the United States Air Force as it pertains to this offer is specific to property specified in the Charges preferr ed against me on 10 May 2016, and any specific property in which I have knowledge that A1C [ KB] has any involvement with.United States v. Hoard , No. ACM S32424

3 II. D ISCUSSION
Appellant argues three bases for w hy the challenged PTA terms should not
be enforced . First, Appellant characterizes the l a nguage that would require
him to testify against his spouse as being facially inconsistent with the spousal
inca pacity privilege and improper compulsi on . Second, Appellant argues the

terms are contrary to the public policy goal of encouraging marital harmo ny

. Finally

, Appellant contends that

, even if he waived his spousal incapacity by agreeing to the terms, A1C KB’s potent ial ly successful invocation of her confidential communications privilege w ould frustrate Appellant’s ability to fulfill
his obligations under the PTA . We are not persuaded by any of these arg ument s . We have reviewed the PTA and the military judge’s inquiry regarding Appellant’s understanding of and volu ntary decision to enter into it. W e conclude, as did the mi litary judge, that the PTA an d the chal lenged terms in particular are in substantial compliance with law and regu lation ; that Appellant voluntarily entered into the PTA; and that the PTA and its terms are not contrary to public policy.

A. Voluntary Waiver of Marital Privilege

Rule for C ourts

- Martial (R

. C

. M

. ) 705(c)(1) expressly prohibits terms or conditions of a PTA that are not voluntary or that deprive an accused of certain rights. “ The interpretation of a pretrial agreement is a question of law, which
is reviewed under a de novo stand ard .” United States v. Acevedo

, 50 M.J. 169

, 172 (C.A.A.F. 1999 )

.
A PTA may include “[a] promise to testify as a witness in the trial of another person.” R.C.M. 705(c)(2)(B). “[N]o practice is more ingrained in our criminal justice system than the practic e of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence.” United States v. Singleton , 165 F.3d 1297, 1301 (10th Cir. 1999) (alteration in original) (citations omitted). The challenged PTA terms fall squarely into this permissible category

. An additional consideration in Appellant’s case is , given that the person he promised to testify against is his spouse , whether mari tal privilege impacts the interpretation or propriety of the terms

. As a general matter, a term of a PTA is not per se impermissible because it requires waiver of a testimonial privilege. Criminal defendants may knowingly and voluntarily waive many rights and Constitutional protections. See, e.g.

, Ricketts v. Adamson , 483 U.S. 1, 10 (1987); Boykin v. Alabama , 395 U.S. 238, 243 (1969); Johnson v. Zerbst , 304 U.S. 458, 465 (1938). Further, the U nited
S tates Supreme Court has held that “ absent some affirmativ e indication of Congress ’ intent to preclude waiver, we have presumed that statutory provisions are subject to waiver by volu ntary agreement of the parties.” United
States v. Mezzanatto , 513 U.S. 196, 201 (1995). In particular, the United StatesUnited States v. Hoard , No. ACM S32424

4 Court of A ppeals for the Armed Forces ( CAAF ) has held that w aiver of evidenti ary objections is a permissible term of a PTA

. United States v. Gibson , 29 M.J. 379 (C

. M

. A

. 1990). A claim of privilege is essentially an evidentiary objection
to the admission of privilege d evidence. In that sense, waiver of a testimonial privilege is a waiver of an evidentiary objection to the admission of privileged
evidence

. Marital privilege is articulated in Military Rule of Evidence (Mil. R. Evid.)

504 as two distinct privileges: the privilege to refuse to testify against one’s spouse (spousal incapacity) and the privilege to refuse to disclose, or prevent another from disclosing, any confidential communication made to the spouse of the person

. “ [T]he witness

- spouse alone has a [spousa l

- incapacity] privilege to refuse to testify adversely; the witness may be neither compelled to testify

nor foreclosed from testifying. ” Trammel v. United States , 445 U.S. 40, 53 (1980). In contrast, t he confidential communication privilege may be claimed by the spouse who made the statement or by the other spouse who heard it

.Although the challenged terms of the PTA did not expressly use the terminology of Mil. R. Evid. 504 and the marital privilege and did not squarely address waiver of any such privile ge , both terms clearly named Appellant’s spouse, A1C KB

, as a subject for investigation and future prosecution. Appellant’s offer to answer questions

, testify at any UCMJ proceeding , and otherwise cooperate concerning any offenses alleged against his spous e carried with it an implicit waiver of future claim s by Appellant of marital privilege concerning those offenses

. To conclude otherwise would render the term devoid of any
consideration from Appellant in exchange for favorable action by the convening
auth ority

.
In Trammel , the petitioner’s spou se chose to testify against him. The Supreme Court concluded “[t] hat she did so after a grant of immunity and assu rances of lenient treatment [did] not render her testimony involuntary. ” 445 U.S. at 53 (alteration i n original). Likewise, Appellant’s offer to testify against A1C KB in exchange for favorable action by the convening authority did not render the implicit waiver of marital privilege a product of compulsion. Further, A ppellant stated during the PTA inquiry that he entered the PTA voluntarily and that no one force d or coerce d him into making the offer to plead guilty. We find no evidence in the record that A ppellant was “compelled” or coerced into waiving his spousal incapacity privilege

. Instead, Appellant voluntarily exchanged testimony against his spouse for the PTA’s benefit to him of a cap on confinement. In effect, he voluntarily waived the marital privilege
to the extent he could invoke spousal incapacity or claim the confiden tial communications privil ege on behalf of A1C KB

.United States v. Hoard , No. ACM S32424

5 B. Public Policy and Marital Harmony

Appellant argues the PTA terms must be nullified because they are contrary to the public

- poli cy goal of “encouraging marit al harmony. ” We disagree.

This court has adopted the principle that terms in a PTA are contrary to public policy if they “interfere with court

- martial fact

- finding, sentencing, or
review functions or undermine public confidence in the integrity and fairness of the disciplinary process. ” United States v. Raynor , 66 M.J. 693, 697 (A.F. C t

. C rim. A pp. 2008) (quoting United States v. Cassity , 36 M.J. 759 , 762 (N.M.C.M.R. 1992) ) ; United States v. Mitchell , 15 M.J. 238, 240

– 41 (C.M.A.

19 83)

. Applying this principle, we observe that i n some respects it is the marital privilege itself th at must be justified as not contr ary to public policy

. Indeed, evidentiary rules of privilege may interfere with court

- ma rtial functions
or undermine public confidence by rendering otherwise relevant and reliable
evidence inadmissible

. In Trammel, t he Supr eme Court considered whetherthe privilege against adverse spousal testimony promotes sufficiently important interests to outweigh the need for probative evidence in the administration of criminal justice. 445 U.S. at 51. The Court recognized the scholarly
debate that “ t estimonial exclusionary rules and privileges contravene the fundamental principle that the public . . . has a right t o every man’ s evidence” and
the notion that the privilege “ m ust be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth

. ” T he Court then concluded that vesti ng the privilege to tes tify adversely in the witness

- spouse alone “ furthers the important public interest in marital harmony without unduly burdening legitimate law enforcement needs. ” Id. at 50

– 53 (internal qu otation marks and citations omitted).

Turning to the terms in Appell ant’ s PTA, we note waiver of the marital privilege permit s law enforcement, investigators

, and prosecutors to use “ all rational means for ascertaining truth ” regarding larceny and illegal sale of military property

. Id. at 50 (quoting Elkins v. United State s , 364 U.S. 206, 234 (1960) ). Rather than interfering with a court

- martial function or the integrity
of the disciplinary process

, the waiver of Appellant’s marit al privilege further s the truth

- seeking function and thus advances the public policy goals iden tified
in Raynor

. In addition , t he waiver reflected Appellant’s own balancing of his
best interests and marital harmony with A1C KB. As the Supreme Court observed in Trammel , “[w]hen one spouse is willing to testify against the other in a criminal proceedi ng

– whatever the motivation

– their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.” Id . at 52. In this instance, Appellant chose his interests over those of his spouse. Rather than being against public policyUnited States v. Hoard , No. ACM S32424

6 as claimed by Appellant, a llowing a witness

- spouse this voluntary choice reflects the resolution of the competing public policy interests

.
Were we to do as Appellant requests and categorically declare as prohibited
all PTA terms that explicitly or implicitly include waiver of marital privilege

, such a restriction would tend to work to the detriment of an accused. United
States v. Rivera , 46 M.J. 52, 54 (C.A.A.F. 1997). “ A defend ant can ‘maximize’
what he has to ‘sell ’ only if he is permitted to offer what the prosecuto r is most interested in buying.” Mezzanatto , 513 U.S. at 208

. R.C.M. 705(c)(1)(B) specifies what an accused cannot offer and does not remove the marital privilege as a potential bargaining chip.

Appella nt argues a third basis for voiding the terms of the PTA. Appellant speculates that A1C KB , by invoking her privilege for confidential communications made during their marriage, could potentially prevent Appellant from fulfilling his obligations to answer questions and testify. Because of this possibility, Appellant argues the challenged terms of the PTA should be voided. We disagree. Even if we assume the p rivilege applies

, * it hardly follows that Appellant has not satisfied the PTA term s because A1C KB su ccessfully asserts her privilege. The PTA terms require Appellant to answer questions posed by counsel and to testify. They do not require A1C KB to do or not do anything or guarantee the admissibility of Appellant’s testimony.

III. C ONCLUSION
The findings of g uilt and the sentence are correct in law and fact and noerror materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED

.

FOR T HE COURT

KATHLEEN M. POTTER Acting Clerk of the Court

* A n exception to the confidential communications privilege potentially narrows the scope of any claim of marital privilege by A1C KB. Mil. R. Evid. 504(c)(1) provides that “where both parties have been substantial participants in illegal activity, those communications between the spouses during the marriage regarding the illegal activity in which they have jointly participated are not marital communications for purposes of the [confidential communi cations] privilege.”