United States v. Fisher , 2003 CAAF LEXIS 584 ( 2003 )

UNITED STATES, Appellee
v.
Justin R. FISHER, Specialist
U.S. Army, Appellant
No. 03-0059
Crim. App. No. 20000024
United States Court of Appeals for the Armed Forces
Argued April 29, 2003
Decided June 17, 2003
ERDMANN, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., GIERKE and EFFRON, JJ., and COX, S.J.,
joined. BAKER, J., took no part in the consideration or
decision of the case.
Counsel
For Appellant: Captain Gregory M. Kelch (argued); Colonel
Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler,
Jr. and Major Imogene M. Jamison (on brief).
For Appellee: Captain Charles C. Choi (argued); Colonel
Lauren B. Leeker, Lieutenant Colonel Margaret B. Baines
and Major Mark L. Johnson (on brief).
Military Judge: Kenneth D. Pangburn
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Fisher, No. 03-0059/AR
Judge ERDMANN delivered the opinion of the Court.
Appellant, Specialist Justin R. Fisher, was tried by
general court-martial at Fort Campbell, Kentucky. Pursuant
to his pleas he was convicted of two specifications of
obstruction of justice, one specification of providing
alcohol to a minor, and three specifications of false
swearing, all in violation of Article 134 of the Uniform
Code of Military Justice [hereinafter UCMJ], 10 U.S.C. § 934
(2000). Appellant was sentenced by a military judge to a
dishonorable discharge, confinement for 14 years, forfeiture
of all pay and allowances, and reduction to the lowest
enlisted grade (E-1). Pursuant to a pretrial agreement, the
convening authority reduced the term of confinement to 150
months (12.5 years), but otherwise approved the sentence as
adjudged. The Army Court of Criminal Appeals summarily
affirmed the findings of guilty and the sentence.
We granted review of the following issue pursuant to
Article 67(b), UCMJ, 10 U.S.C. § 867(b) (2000):
WHETHER APPELLANT’S PLEA OF GUILTY TO
SPECIFICATION 5 OF CHARGE III IS
PROVIDENT WHERE THE ALLEGEDLY FALSE
STATEMENT WAS INFORMATION OMITTED FROM
AN OTHERWISE LITERALLY TRUE STATEMENT TO
THE CID.
We hold that the statement at issue in specification 5
of Charge III contained literally false assertions and thus
Appellant’s guilty plea was provident. In light of that
disposition, we do not reach the issue of whether a plea of
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guilty to the offense of false swearing can be provident
where the statement is only false by omission.
FACTS
Appellant’s convictions arose out of circumstances
involving the murder of his roommate by a fellow service
member.
At about midnight on July 3, 1999, Appellant, Private
(PVT) Calvin Glover, Private First Class (PFC) Arthur
Hoffman, and PFC Barry Winchell were relaxing in front of
their barracks. Private Glover was telling stories about
how he used to take drugs, deal drugs, and rob banks before
he came into the military. All were drinking beer except
PFC Hoffman. Eventually, PFC Winchell told PVT Glover to
“take [his] drunk, cherry ass to bed.”
Humiliated by this put-down, PVT Glover tried to
confront PFC Winchell, indicating he wanted to fight, and
trying several times to knock the beer out of PFC Winchell’s
hand. Private First Class Winchell hit PVT Glover three or
four times in the face, threw him to the ground and easily
subdued him. Private Glover did not succeed in landing any
blows on PFC Winchell.
The Staff Duty Noncommissioned Officer (SDNCO) walked
by, and PFC Hoffman and Appellant separated the two
combatants. Private First Class Winchell and PVT Glover
shook hands in front of the SDNCO to show that the fight was
over. Private First Class Winchell said repeatedly to PVT
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Glover, “It’s cool, right?” Private Glover responded, “No,
it’s not cool. It ain’t over. I will f**king kill you. We
ain’t through.”
After the fight, PVT Glover said to Appellant and PFC
Hoffman, “I won’t let a faggot kick my ass.” Appellant, PFC
Hoffman and PVT Glover were all aware of a rumor that PFC
Winchell was gay.
The following day, Appellant repeatedly taunted PVT
Glover about losing a fistfight to “a faggot.” That night,
Appellant gave the underage PVT Glover beer and continued to
bait him while the two drank in PVT Glover’s room. Sometime
after 1:15 a.m. Appellant and PVT Glover left PVT Glover’s
room and walked to Appellant’s room, passing by PFC Winchell
who was sleeping on a cot located outside the doorway to the
room shared by PFC Winchell and Appellant.
After arriving at Appellant’s room, Appellant turned on
his compact disk player and played the soundtrack from
“Psycho.” Private Glover picked up Appellant’s wooden
baseball bat and began making chopping motions while
mumbling to himself. Private Glover had a wide-eyed,
psychotic look on his face and Appellant heard him
repeatedly mumble the word “faggot.” Private Glover
continued walking around swinging the bat for about ten
minutes and then told Appellant he wanted to “f**k up” PFC
Winchell. Appellant told PVT Glover to “go for it.”
Private Glover left the room and mortally wounded PFC
Winchell by hitting him in the head and neck multiple times
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with the baseball bat as he lay on his cot. Private Glover
then returned to the room, announced he had “whooped [PFC
Winchell’s] ass,” and secured Appellant’s assistance in
washing blood off the bat.
Appellant subsequently pretended not to know what had
happened and tried to cover up the true course of events.
In the course of the investigation, Appellant made several
written statements under oath to the U.S. Army Criminal
Investigative Command (CID). Appellant was charged with
false swearing in regard to three of these statements.
Appellant pleaded guilty to all three of the false swearing
specifications. Only the third false statement is at issue
on appeal.
The following statement formed the basis for the false
swearing conviction of specification 5 of Charge III:
“[T]hen he [PVT Glover] walked over to Winchell’s side of
the room, and shortly thereafter I hear the room door shut.
I did not think anything of it, I assumed Glover went home.
I did not think anything of it until he came back[.]”
Specifications 3 through 5 all dealt with false
swearing, and the military judge explained the elements of
the offense at one time. He then undertook a specific
inquiry as to each specification. In regard to
specification 5 the record reflects the following exchange
between the military judge (MJ) and Appellant (ACC):
MJ: There it says, that on or about the
8th of July, in a written sworn
statement, you did wrongfully and
unlawfully make, under lawful oath, a
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false statement in substance as follows:
“then he” - - is that referring to
Glover?
ACC: Yes, sir.
. . . .
MJ: He walked over to Winchell’s side
of the room, shortly thereafter you hear
the door shut. This was part of the
false statement; right?
ACC: Yes, sir.
MJ: You hear the door shut. You did
not think anything of it. You assumed
that Glover went home. So, this is one
of those false statements by omission;
is that right?
ACC: Yes, sir.
MJ: You didn’t say anything about
Glover’s statement that he wanted to
f**k him up.
ACC: Yes, sir.
MJ: That he intended to assault him.
ACC: Yes, sir.
MJ: So, that’s what makes this
statement false?
ACC: Yes, sir.
. . . .
MJ: Those are the statements you
allegedly made in each of these three
specifications. Are you clear on those?
ACC: Yes, sir.
MJ: Now, the next element, the fifth
element is that those statements were
false. You’ve already indicated to me
that you believe that those statements
were false. Is that right?
ACC: Yes, sir.
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MJ: The sixth element is, that at the
time that you made the statements, you
did not then believe those statements
were to be true.
ACC: Yes, sir.
MJ: Now, the time you made any of these
statements to CID, you were trying to
cover for yourself. Is that right?
ACC: Yes, sir.
MJ: When you made those statements, did
you believe them to be true at the time
you made them?
ACC: No, sir.
MJ: You knew they were false when you
made them?
ACC: Yes, sir.
. . . .
MJ: Tell me about Specification 5.
ACC: In Specification 5, I didn’t admit
that I teased him [PVT Glover] and, you
know, had a conversation with him in the
room. He did not walk over to
Winchell’s side of the room. He walked
out with the bat. I knew that statement
was false and I still gave it any way
[sic], Your Honor.
(Emphasis added.)
In addition to the providence inquiry, Appellant’s
guilty plea was based upon a stipulation of fact that he
entered into on January 7, 2000. In that stipulation
Appellant agreed to the following concerning the statement
that was the subject of specification 5:
This statement was false and the accused
did not then believe the statement to be
true when he made his oath and signed
and swore it to be the truth.
Furthermore, this lie under oath was,
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under the circumstances, prejudicial to
the good order and discipline in the
armed forces and of a nature to bring
discredit upon the armed forces.
Specifically this statement was not
true(and the accused knew it not to be
true when made) because the accused knew
that PVT Glover left the room with the
bat after saying he should go out there
and “f**k [Winchell] up” and after the
accused said “then go for it[.]”
DISCUSSION
Appellant argues on appeal that his guilty plea as to
specification 5 of Charge III was improvident. Under
Article 45, UCMJ, 10 U.S.C. § 845 (2000), if an accused
appears to enter a plea improvidently or through lack of
understanding of its meaning or effect, the plea shall not
be accepted by the court. Rejection of a guilty plea on
appellate review requires that the record of trial show a
substantial basis in law and fact for questioning the guilty
plea. United States v. Jordan, 57 M.J. 236, 238 (C.A.A.F.
2002)(citing United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991)).
The statement that was the subject of specification 5
contained five separate assertions:
1. [T]hen he [Glover] walked over to
Winchell’s side of the room,
2. and shortly thereafter I hear the
room door shut.
3. I did not think anything of it,
4. I assumed Glover went home.
5. I did not think anything of it until
he came back[.]
The record reflects that this statement contains
literally false assertions and is also false by omission.
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Appellant argues that the UCMJ offense of “false swearing”
does not include statements that are “false by omission.”
Since the military judge referenced “false statements by
omission” during his plea inquiry into specification 5,
Appellant urges that the resulting plea was not provident.
The Government counters that Appellant did not merely omit
facts or give unresponsive answers in the statement, but
made literally false statements.
While Appellant admitted that the statement was false
by omission, his responses to the military judge’s questions
reflect that he was also aware that much of what he said was
literally false. In response to multiple questions from the
military judge, Appellant admitted that the statements were
false and that when he made them he did not believe them to
be true. When the military judge asked Appellant about
specification 5, Appellant concluded his response by stating
that “I knew that statement was false and I still gave it
any way [sic], Your Honor.”
In addition to these general admissions of falsity,
Appellant specifically admitted the falsity of two of the
separate assertions in the statement. When explaining to
the military judge why specification 5 was false, Appellant
expressly admitted the falsity of the first assertion, that
“he [PVT Glover] walked over to Winchell’s side of the
room.” During the plea inquiry Appellant clearly stated,
"He [PVT Glover] did not walk over to Winchell's side of the
room." (Emphasis added.)
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Appellant also admitted in his stipulation of fact the
falsity of the fourth assertion, that when PVT Glover left
the room he thought that PFC Glover was going home. Because
PVT Glover took the baseball bat and told Appellant he was
going to “f**k him [PFC Winchell] up” and Appellant said
“then go for it,” Appellant knew that PVT Glover was not
going home when he left the room. An admission in a
stipulation of fact is binding and may not be contradicted.
See Rules for Courts-Martial 811(e)(unless withdrawn or
stricken, stipulation of fact is binding on court-martial
and may not be contradicted by the parties).
There is however some question as to whether the record
is sufficient to support the falsity of Appellant’s specific
assertion that he heard the room door shut. When discussing
that assertion, the military judge said, “He [PVT Glover]
walked over to Winchell’s side of the room, shortly
thereafter you hear the door shut. This was part of the
false statement; right?” to which Appellant responded, “Yes,
sir.” Without more, it is unclear whether Appellant was
only agreeing that the assertion regarding hearing the door
shut was an assertion which formed a part of the false
statement (without making any comment on the truth of that
assertion), or was in fact admitting that that assertion was
itself false.
Similarly, beyond Appellant’s general admissions
regarding the falsity of his statement, there is nothing on
the record that directly supports the literal falsity of
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Appellant’s third and fifth assertions that when PVT Glover
left “he did not think anything of it” and “he did not think
anything of it until he [PVT Glover] came back.” The
military judge only characterized those assertions as “false
statements by omission,” and Appellant did not admit that
the assertions were literally false.
It is not necessary that a statement be false in every
detail in order for a guilty plea to false swearing to be
provident. The gist of the crime of false swearing is that
an oath to tell the truth has been knowingly violated. A
statement need not be false in its entirety. United States
v. Kennedy, 12 M.J. 620, 624 (N.M.C.M.R. 1981), pet. denied,
13 M.J. 199 (C.M.A. 1982).
The difficulty with the plea inquiry into this
specification was the military judge’s reference to “false
statements by omission.” Failure to explain each and every
element of the charged offense to the accused in a clear and
precise manner prior to accepting the plea is not reversible
error if it is clear from the entire record that the accused
knew the elements, admitted them freely, and pleaded guilty
because he was guilty. United States v. Jones, 34 M.J. 270,
272 (C.M.A. 1992). Here, despite the reference to “false by
omission,” there were also multiple literal falsehoods. It
is clear from the entire record that the Appellant knew that
he was accused of making a false statement, referenced the
falsity of the statement in his stipulation of fact and in
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response to the military judge’s questions, and voluntarily
pleaded guilty because he was guilty.
A guilty plea will be set aside on appeal only if the
appellant can show a “substantial basis” in law and fact to
question the plea. Jordan, 57 M.J. at 238. We find that
there is no substantial basis in law or fact for questioning
the providence of Appellant’s guilty plea.
DECISION
The decision of the United States Army Court of
Criminal Appeals is affirmed.
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