CAAF holds military judge erred in applying Article 32 waiver, but holds the error is harmless

The facts of United States v. Von Bergen, __ M.J. __, No. 03-0629/AF (C.A.A.F. Apr. 2, 2009), are so unusual that the case doesn't seem destined to receive many entries in Shepard's Citations.

Airman First Class Von Bergen entered into a PTA, under which he waived his Article 32 investigation, and pleaded guilty to a 2252A child pornography offense (as well as another child pornography offense). CAAF reversed due to its conclusion in Martinelli that 2252A doesn't apply extraterritorially. United States v. Von Bergen, 62 M.J. 370 (C.A.A.F. 2005) (order). A1C Von Bergen was retried, but this time under Article 134 clauses (1) and (2), rather than (3). This time A1C Von Bergen pleaded not guilty and sought an Article 32 investigation. The military judge held that Von Bergen wasn't entitled to a 32 due to his earlier waiver. AFCCA affirmed.

Wrong, ruled CAAF. Judge Baker wrote for the majority. Judge Ryan concurred in the result.

"First and foremost," CAAF ruled, "Appellant's [original] plea was improvident as a matter of law, which had the effect of canceling the pretrial agreement according to its terms." Von Bergen, No. 03-0629/AF , slip op. at 9. Second, "the effect of the rehearing and Appellant’s subsequent withdrawal from the agreement was to place the parties in their pretrial status quo ante." Id., slip op. at 9-10. CAAF explained that it couldn't "uphold an offense under Article 134(1) or (2), UCMJ, which, as explained in United States v. Medina, 66 M.J. 21, 26 (C.A.A.F. 2008), do not necessarily constitute lesser included offenses of Article 134(3), UCMJ. As a result, Appellant’s plea was improvident." Id., slip op. at 10. The court continued, "Although improvidence of the plea upon appellate review was not an express basis for cancellation in the pretrial agreement, this Court's decision had the same effect as if the military judge had not accepted Appellant's plea, which was an express basis for cancellation." Id., slip op. at 10-11.

Additionally, CAAF explained, "when this Court set aside Appellant's plea and the amended specification was referred for rehearing, Appellant's subsequent withdrawal from the agreement meant that the court-martial process should have begun anew." Id., slip op. at 11. The court went on to conclude, however, that the failure to hold an Article 32 investigation before the second court-martial was harmless error. Id., slip op. at 13-14.

Judge Ryan wrote separately due to her stricter separation of Article 134 (3) offenses from Article 134 (1), and (2) offenses. She reasoned, "The specification at issue in this appeal was originally charged and pleaded to as a violation of clause 3 of Article 134, UCMJ. . . . On rehearing, the convening authority amended the original specification from alleging a violation of clause 3 of Article 134, UCMJ, to alleging a violation of clauses 1 or 2 of Article 134, UCMJ, and referred this new specification to a general court-martial." Because the Article 134(1) and (2) allegation at the second court-martial was a distinct offense from the Article 134(3) allegation at the original court-martial, "Appellant’s waiver of an Article 32, UCMJ, pretrial investigation pursuant to the PTA could not constitute a waiver for an offense the PTA did not address."