United States v. Von Bergen - U.S. Court of Appeals for the Armed ...

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United States v. Von Bergen, No. 03-0629/AFwithdrawal from the agreement was to place the parties in theirpretrial status quo ante. See R.C.M. 705(d)(4).As noted above, when this case came before this Court thefirst time, we reversed the finding on the specification ofpossessing child pornography based on Martinelli. Von Bergen,62 M.J. at 370; see Martinelli, 62 M.J. at 62 (concluding thatthe CPPA does not apply extraterritorially, thus the CPPA asincorporated into Article 134(3), UCMJ, does not applyextraterritorially). As in Martinelli itself, Appellant’s pleawas improvident with respect to the Article 134(3), UCMJ,specification. Further, and also as in Martinelli, thespecification did not reference prejudice to good order anddiscipline or service discredit, and the military judge duringthe providence inquiry did not sufficiently inquire into whetherAppellant was willing to admit that his conduct was prejudicialto good order and discipline or service discrediting.Martinelli, 62 M.J. at 670. Thus, we cannot uphold an offenseunder Article 134(1) or (2), UCMJ, which, as explained in UnitedStates v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008), do notnecessarily constitute lesser included offenses of Article134(3), UCMJ. As a result, Appellant’s plea was improvident.Although improvidence of the plea upon appellate review wasnot an express basis for cancellation in the pretrial agreement,this Court’s decision had the same effect as if the military10
United States v. Von Bergen, No. 03-0629/AFjudge had not accepted Appellant’s plea, which was an expressbasis for cancellation. As a matter of law, the plea could nothave been accepted by the military judge. As the military judgecould not have accepted an improvident plea, the pretrialagreement was subject to the first cancellation term.Thus, a condition precedent to the Article 32, UCMJ,waiver, acceptance of the pleas, never occurred. Therefore, thewaiver was not in effect at the rehearing. This point isreinforced by the military judge’s explanation to Appellant atthe 2001 court-martial that Appellant would be afforded anArticle 32, UCMJ, investigation should the military judge notaccept Appellant’s pleas for any reason. Moreover, during thesame colloquy, the parties agreed that the Article 32, UCMJ,waiver would not apply if Appellant’s pleas were “determined tobe improvident.”Even if the pretrial agreement were still in effect -- andwe are convinced that it was not -- when this Court set asideAppellant’s plea and the amended specification was referred forrehearing, Appellant’s subsequent withdrawal from the agreementmeant that the court-martial process should have begun anew.R.C.M. 810(a)(1) provides that: “[rehearing] procedure shall bethe same as in an original trial.” Therefore, “the effect ofordering a rehearing is . . . to place the United States and theaccused in the same position as they were at the beginning of11
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United States v. Von Bergen - U.S. Court of Appeals for the Armed ...

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