UNITED STATES, Appellee

                                        v.

               Jamie L. HANSEN, Private First Class
              United States Marine Corps, Appellant

                                  No. 03-0363
                        Crim. App. No. 200100086

    United States Court of Appeals for the Armed Forces

                         Argued December 9, 2003

                         Decided April 28, 2004

     BAKER, J., delivered the opinion of the Court, in
which GIERKE, EFFRON and ERDMANN, JJ., joined. CRAWFORD,
C.J., filed a dissenting opinion.


                                     Counsel


For Appellant:       Captain E. V. Tipon, USMC (argued).


For Appellee: Captain Wilbur Lee, USMC (argued); Commander
Robert P. Taishoff, JAGC, USN (on brief); Colonel R. M.
Favors, USMC, and Major Patricio A. Tafoya, USMC.


Military Judge:       R. H. Kohlmann



       THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Hansen, No. 03-0363/MC


    Judge BAKER delivered the opinion of the Court.

    On March 14, 2000, at Cherry Point, North Carolina,

Appellant was tried by a general court-martial composed of

a military judge alone.    Consistent with his pleas,

Appellant was convicted of carnal knowledge and sodomy with

a child under the age of 16 years in violation of Articles

120 and 125, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. §§ 920 and 925 (2000), respectively.      He

was sentenced to a bad-conduct discharge, confinement for

sixteen months, and reduction to the lowest enlisted grade.

In accordance with a pretrial agreement, the convening

authority approved the sentence but suspended all

confinement in excess of fifteen months for a period of six

months from the date of the action, and, with the exception

of the bad-conduct discharge, ordered the sentence

executed.    The Navy-Marine Corps Court of Criminal Appeals

affirmed the findings of guilty and the sentence.       United

States v. Hansen, 

 (N-M. Ct. Crim. App. 2002).

     This Court granted review of the following issue:

            WHETHER     APPELLANT’S    PLEAS     WERE
            IMPROVIDENT AND INVOLUNTARY WHERE THE
            MILITARY   JUDGE   FAILED   TO   PROPERLY
            INSTRUCT APPELLANT ON THE EFFECT OF A
            PLEA OF GUILTY TO HIS SUBSTANTIAL
            RIGHTS, SPECIFICALLY THOSE GUARANTEED
            BY THE U.S. CONSTITUTION, AS REQUIRED
            BY UNITED STATES V. CARE, 

, 

 (1969).


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United States v. Hansen, No. 03-0363/MC


     For the reasons set forth below, we conclude that the

military judge did not adequately advise Appellant of his

constitutional right to confrontation and right against

self-incrimination or obtain from Appellant an intelligent

and voluntary waiver of those rights.   As a result, we

reverse.

                          Discussion

     An accused entering a guilty plea waives several of

his constitutional rights.   United States v. Care, 

, 538-39, 

, 250-51 (1969)(quoting

United States v. McCarthy, 

, 466 (1969)).

These constitutional rights include the right to trial by

jury, the right to confront one’s accusers, and the

privilege against compulsory self-incrimination.   See

Boykin v. Alabama, 

, 243 (1969); McCarthy, 394

U.S. at 466.   They derive from express constitutional text

and for many, if not most Americans, these rights are

central to the American perception of criminal justice.

     These rights are also fundamental to the military

justice system, although they apply in the context of the

UCMJ somewhat differently than in civilian courts.    See

United States v. Wiesen, 

, 50 (C.A.A.F. 2002);

United States v. Benedict, 

, 456 (C.A.A.F.

2001)(Effron, J., dissenting); United States v. Roland, 50


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United States v. Hansen, No. 03-0363/MC


M.J. 66, 68 (C.A.A.F. 1999)(explaining that although a

military defendant does not enjoy a Sixth Amendment right

to a trial by jury, he or she does have a right to members

who are fair and impartial).   As a result, if there is to

be a waiver of these rights, it “must be an intentional

relinquishment or abandonment of a known right or

privilege.”   Johnson v. Zerbst, 

, 464 (1938).

“The record must also demonstrate the military trial judge

or president personally addressed the accused, advised him

that his plea waives his right against self-incrimination,

his right to a trial of the facts by a court-martial, and

his right to be confronted by the witnesses against him;

and that he waives such rights by his plea.”   Care, 18

C.M.A. at 541, 40 C.M.R. at 253 (citing Boykin, 395 U.S. at

239).   Based upon those inquiries and whatever additional

discussion the military judge may deem necessary, the judge

must make a finding that there is a knowing, intelligent,

and conscious waiver in order to accept the plea.   Id. at

541-42, 40 C.M.R. at 253-54.   That waiver is not to be

presumed from a silent or inadequate record.   United States

v. Harris, 

, 733 (A.C.M.R. 1988)(characterizing

Boykin as prohibiting presumption of waiver from a silent

or inadequate record.)




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United States v. Hansen, No. 03-0363/MC


     Appellant argues that his plea is improvident because

the record fails to demonstrate that he was informed of his

constitutional right to a trial of the facts by court-

martial, his right to be confronted by and to cross-examine

any witnesses, and his right against self-incrimination.

See U.S. Const. amend. V, VI.       As importantly, Appellant

argues the record fails to demonstrate that Appellant

knowingly and intelligently waived these rights.

     The government acknowledges that the military judge

was not express in his review of Appellant’s constitutional

rights and waiver.   However, a particular incantation is

not required.   See United States v. Burton, 

,

115, 

, 169 (1971)(overruled by United States

v. Kossman, 

 (C.M.A. 1993)).       What is important,

in our view, is that the accused is aware of the substance

of his rights and voluntarily waives them.       Here, the

government argues, the judge addressed the substance of

each of the rights in the course of his Care inquiry and on

the basis of the entire record properly concluded, “that

you have knowingly, intelligently, and consciously waived

your rights against self[-]incrimination, to a trial of the

facts by this court-martial, and to confront the witnesses

against you.”   The defense did not challenge the judge’s

statement.


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United States v. Hansen, No. 03-0363/MC


     The government posits that this case is at the

crossroads between those judicial circuits that apply a

rule of essential substance to determine whether an accused

has waived his constitutional rights, and those circuits,

primarily the Second Circuit, that apply a strict rule of

form, requiring adherence to specific terminology.1      We

disagree with this paradigm.

     First, although this Court recognizes that the

military judge should advise the accused of the rights he

is waiving by pleading guilty, we have previously declined

to adopt a “per se rule that a failure to fully advise an

accused mandates reversal.”    Harris, 26 M.J. at 732.

Instead, the issue is not whether there is ‘exemplary

compliance with what we had in mind in Care’ but rather

whether ‘the combination of all the circumstances’ leads

the court to conclude that the accused’s plea was informed

and voluntary.”   Harris, 26 M.J. at 732 (quoting Burton, 21




1
 Compare United States v. Journet, 

, 634 (2d
Cir. 1976) with United States v. Pricepaul, 

,
425 (9th Cir. 1976) and United States v. Stead, 

, 357 (6th Cir. 1984).


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United States v. Hansen, No. 03-0363/MC


      C.M.A. at 115, 44 C.M.R. at 169).2   Thus, in Burton,

the Court relied on the military judge’s explanation to the

accused concerning the consequences of electing to be tried

by military judge alone instead of by a jury as reassurance

“that the appellant knew of his right to have a jury decide

his guilt.”    21 C.M.A. at 115, 44 C.M.R. at 169.   Although

the judge in Burton “did not use the words ‘self-

incrimination’ and . . . ‘confront the witnesses[,]’” the

judge did inform the accused that if he invoked his right

to plead not guilty the government would have the burden of

proving his guilt beyond a reasonable doubt by presenting

evidence “that the appellant had the right to confront.”

Id.   As a result, the Court in Burton determined that the

appellant understood his right to confront the witnesses

against him.   Id.   “Similarly, implicit in the judge’s

explanation about the appellant’s right to plead not guilty

and the Government’s burden if he did so is the thought

that the appellant was not required to provide any of the

proof of his guilt.”   Id.


2
  Although Burton was overruled in regard to its analysis of
speedy trial, it remains valid precedent as to the standard
pertinent to the issue here. See United States v. Kossman,

 (C.M.A. 1993); United States v. McCallister, 

 (C.M.A. 1988). Thus, we consider Burton the “low
water mark” as far as what the record must include to
demonstrate that the accused was properly advised of his
rights.

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United States v. Hansen, No. 03-0363/MC


     Second, the question in this case is not whether the

military judge used the correct constitutional formula, but

whether the judge’s inquiry crossed the threshold of

necessary substantive inquiry such that we can reasonably

conclude that Appellant understood his rights and knowingly

and intelligently waived those rights.

     According to the government, the record shows the

military judge alluded to Appellant’s constitutional rights

on six separate occasions.   With respect to Appellant’s

right to a trial of the facts by court-martial, the

military judge informed Appellant “you have the right to be

tried by a court-martial composed of members . . . You are

also advised that you may request to be tried by military

judge alone.   If that request is approved, the military

judge would determine your guilt or innocence . . . .”

With respect to Appellant’s right against self-

incrimination, the judge advised Appellant “Based on your

pleas of guilty alone and without receiving any evidence,

this court can find you guilty of the offenses to which you

are pleading guilty.”   The judge also instructed Appellant

that “By elements, I mean the facts that the government

would have to prove beyond a reasonable doubt before you

could be found guilty if you pleaded not guilty.”   With

respect to Appellant’s right to confront and cross-examine


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United States v. Hansen, No. 03-0363/MC


witnesses, the government invites our attention to that

portion of the record where the parties were litigating

whether a certain defense witness should be allowed to

testify on sentencing.   Defense counsel argued that “the

military accused has the right to have the testimony of a

witness on sentencing as well as on the merits when the

testimony is material to an issue before the court.”   The

military judge stated, “If after presentation of the

government’s evidence, the defense feels that the door has

been opened by the government to such rebuttal, the defense

should renew its motion at [that] time.”

     Finally, as noted above, at the close of his Care

inquiry the judge advised Appellant on the record that he

had “knowingly, intelligently, and consciously waived [his]

rights against self[-]incrimination, to a trial of the

facts by this court-martial, and to confront the witnesses

against [him].”   This was done without response or

objection from the defense counsel or the accused.

     Based on this record, we believe Appellant was advised

of, understood, and knowingly waived his right to a trial

of the facts.   However, we are not prepared to conclude the

same with respect to Appellant’s right against self-

incrimination or his right to be confronted by and cross-

examine witnesses.   The “combination of all the


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United States v. Hansen, No. 03-0363/MC


circumstances” surrounding the judge’s statements regarding

those particular rights falls short of demonstrating that

Appellant’s guilty plea and waiver of the rights was

informed and voluntary within the meaning of McCarthy,

Boykin, and Care.   See Burton, 21 C.M.A. at 115, 44 C.M.R.

at 169.3   Without such an explanation and acknowledgment of

the judge’s ultimate conclusion, we cannot be confident

that Appellant intelligently waived these rights

notwithstanding the presence of counsel.    After all, the

military judge is required to ensure that the accused

personally understands the rights he is about to waive.

Care, 18 C.M.A. at 541, 40 C.M.R. at 253.    We cannot be

certain that this was the case here.   First, the record

establishes that Appellant was not conversant with his

constitutional rights.   This was evident at the outset of

the Care inquiry when the judge advised Appellant of his

right to be tried by a court-martial composed of members or

by judge alone.   When asked whether he understood this

right and had discussed these choices with his counsel,

Appellant responded, “No, sir.”    Second, where bedrock

constitutional rights are at issue and are waived, we


3
 This is in contrast to the thorough, indeed commendable,
manner in which the military judge reviewed on the record
with Appellant the elements of the offenses with which he
was charged.

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United States v. Hansen, No. 03-0363/MC


should not settle for inference and presumption when

certainty is so readily obtained.

     Pretrial agreements are mortar and brick in the

military justice system.    The knowing and intelligent

waiver of constitutional rights is the foundation upon

which they rest.   This Court does not require incantation

of constitutional formulas.   However, we do require a

record of confidence that an individual accused had his

rights explained to him, understood his rights, and

knowingly and intelligently waived them.   Because the

relinquishment of these bedrock constitutional rights is

the essence of the plea bargain, we will not presume or

imply that a military accused understood them and waived

them, absent a demonstrable showing in the record that he

did in fact do so.

                            Decision

     The decision of the United States Navy-Marine Corps

Court of Criminal Appeals is reversed.    The findings of

guilty and the sentence are set aside.    The record of trial

is returned to the Judge Advocate General of the Navy.      A

rehearing may be ordered.




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United States v. Hansen, No. 03-0363/MC


     CRAWFORD, Chief Judge (dissenting):

     In contrast to Boykin v. Alabama, 

 (1969), this

is not the case of a “silent record,” but a record that is

replete with evidence demonstrating adequate advice to the

accused.   The record on the whole affirmatively demonstrates the

accused understood the constitutional rights he was waiving and

the critical elements of the crime for which he had entered the

pleas of guilty.   Trial courts are not required to follow a

formulistic litany but, in essence, must make sure there is a

voluntary plea that is understood by the accused.   Clearly, that

is true in this case.   The majority of courts have considered

this issue and refused to vacate a plea simply because the

record does not affirmatively show a specific waiver of these

three constitutional rights.   James E. Bond, Plea Bargaining and

Guilty Pleas § 3.8(b) at 3-27 (2d ed. 1982); see also Pitts v.

United States, 

 (6th Cir. 1985); State v. Lee, 

 (Neb. 1997); State v. Branch, 

, 1233

(Wash. 1996)(citing Wood v. Morris, 

, 1336-37

(Wash. 1976)).   The colloquy by the trial judge is not a model

to be followed, but it is clear that from the thrust of

Appellant‘s conversation with the judge that he entered an

“informed and voluntary” plea.   United States v. Burton, 

, 

, 169 (1971).
United States v. Hansen, No. 03-0363/MC


     This Court considers the entire record when determining the

providence of a guilty plea.   United States v. Redlinski, 

, 119 (C.A.A.F. 2003).   Even before the military judge

allowed Appellant to enter a plea, he made Appellant aware of

his rights to discovery, to request witnesses on his behalf, to

file and litigate motions, and to present evidence on those

motions.   The military judge and Appellant’s defense counsel

engaged in a protracted discussion on whether the defense would

be allowed to present evidence to rebut an implication that his

accuser had been a virgin, which discussion also included an

issue of “sentence appropriateness” regarding the trials of the

other two Marines charged with similar offenses.   Appellant was

aware of the military judge’s preference to have motions

completed prior to pleas “because you never know what’s going to

arise.”    The judge assured Appellant had been advised by his

counsel and then advised that the guilty plea is the “strongest

form” proof known to the law and that “the court can find you

guilty of the offenses to which you are pleading guilty” without

the introduction of any witnesses.    See United States v. Care,

, 

, 253 (1969).   Appellant knew that

the plea would admit every element of the offense, and that if

he chose to plead not guilty, the government would have to prove

each and every element of each offense beyond a reasonable doubt

before Appellant could be found guilty.   Appellant was advised


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United States v. Hansen, No. 03-0363/MC


he could be found guilty based on his “pleas of guilty alone.”

He admitted he had enough time to talk to his counsel and

believed his advice was in his own best interest.   He

specifically said he was pleading guilty “voluntarily” and that

no one had “forced or threatened him to plead guilty.”    He

indicated he agreed to enter into a stipulation of fact after

discussing it completely with his attorney and that it was true,

and if entered into evidence could not be contradicted.   This

advice to the accused lasted approximately 30 minutes and

extended over nearly 30 pages of a verbatim record of trial.

The judge discussed with Appellant the defense of mistake of

fact concerning the age of the victims but agreed that it did

not apply.

     In the memorandum of pretrial agreement, Appellant admitted

that his plea was “voluntary,” and that he was satisfied with

his defense counsel.   He also admitted his attorney “fully

advised [him] of the meaning and effect of [his] guilty pleas.

[He] fully underst[oo]d their meaning and all the related

effects and consequences.”   Id.   He waived his right to an

investigation pursuant to Article 32, Uniform Code of Military

Justice, 10 U.S.C. § 832 (2000), and his “right to have [his]

case tried by members.”   The judge advised Appellant that he

could request to withdraw his plea any time before sentence was

announced.   Appellant also said he understood “each and every


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United States v. Hansen, No. 03-0363/MC


provision” of his pretrial agreement, including a provision that

Appellant “testify truthfully at other trials concerning the

offenses to which [he was] pleading guilty” and was satisfied

with the advice of his counsel.   He had no questions concerning

the “meaning and effect” of his guilty plea.   The judge then

indicated that he found that Appellant “knowingly,

intelligently, and consciously waived his rights against self-

incrimination to a trial of the facts by court-martial, and to

confront the witnesses against him.”   There was no objection by

either side to that statement.

     As the majority correctly notes, the rights to silence, to

confront one’s accuser, and to a trial by jury “are central to

the American perception of criminal justice” and “fundamental to

the military justice system.”    So central and fundamental, in

fact, that it is a leap of logic to conclude that these rights

were unknown to this 22-year-old Marine who was represented by

competent counsel, who had negotiated and entered into both a

pretrial agreement and a detailed stipulation of fact, and who

had discussed his crimes, his agreement to testify in other

cases, and many of his trial rights on the record before a

military judge.

     There was substantial compliance with Care, and Rule for

Courts-Martial 910.   We should follow our superior court and

hold that even where there is a failure to make a full inquiry,


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United States v. Hansen, No. 03-0363/MC


the failure of the defendant to object constitutes waiver absent

plain error.   United States v. Vonn, 

 (2002); cf.

United States v. Benitez, 

 (9th Cir. 2002), cert.

granted __ U.S. __, 

 (2003)(rejecting argument

that defendant’s failure to object to lack of advising the

defendant that the judge was not bound by the agreement

constitutes waiver absent plain error).∗

      On these facts, I can find no material prejudice to any

substantial right of Appellant.   His plea was informed and

voluntary.   This Court should no longer invite appellants and

counsel to negotiate a bargain, plead guilty, gain the benefit

of the bargain, and then have the conviction set aside with no

demonstration of prejudice and every indication of waiver.




∗
  The failure to invoke waiver absent plain error invites
defense counsels to “plant error.” Victor Kelley, 3 National
Military Justice Group 6 (Winter 2004) (“I know of no fiduciary
loyalty that the defense owes to the military judge. It may
well be that the judge incorrectly advises the accused or omits
an element of the offense. Should this occur, and should the
prosecutor miss it, the defense has an instant appellate
issue.”).


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