Hicks v. United States

I write separately to address the dubious validity of Rule for Military Commission (R.M.C.) 705(c)(2)(E)5 permitting the waiver of appellate review as a term or condition of a pretrial agreement. Because appellant did not execute and deliver an appellate waiver after trial, post-action, in this case, the question is whether his pretrial waiver is valid in and of itself.

The majority here, and the parties to this litigation, struggle to reconcile R.M.C. 705 with R.M.C. 1110(f), the latter being relative to post-action submission of waiver of appellate review. The problem is that the rules are…