United States v. Erickson , 2005 CAAF LEXIS 778 ( 2005 )

IN THE CASE OF
UNITED STATES, Appellee
v.
Justin W. Erickson, Airman First Class
U.S. Air Force, Appellant
No. 04-0721
Crim. App. No. S30244
United States Court of Appeals for the Armed Forces
Argued May 3, 2005
Decided July 20, 2005
EFFRON, J., delivered the opinion of the Court, in which GIERKE,
C.J., and CRAWFORD, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain Anthony D. Ortiz, (argued); Colonel
Carlos L. McDade, Major Sandra K. Whittington, Captain Jennifer
K. Martwick, and Captain Christopher S. Morgan, (on brief).
For Appellee: Major John C. Johnson, (argued); Captain Kevin P.
Stiens, Lieutenant Colonel Robert V. Combs, and Lieutenant
Colonel Gary F. Spencer, (on brief).
Military Judge: Patrick M. Rosenow
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION .
United States v. Erickson, No. 04-0721/AF
Judge EFFRON delivered the opinion of the Court.
At a special court-martial composed of a military judge
sitting alone, Appellant was convicted, in accordance with his
pleas, of attempted wrongful possession of 3, 4 methylenedioxy-
methamphetamine (ecstasy), wrongful use of cocaine, and
wrongfully inhaling nitrous oxide, in violation of Articles 80,
112a, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C
§§ 880, 912a, 934 (2000), respectively. He was sentenced to a
bad-conduct discharge, confinement for 105 days and reduction to
E-1. The convening authority reduced the amount of confinement
to ninety-five days and approved the remainder of the sentence
as adjudged. The Air Force Court of Criminal Appeals affirmed
in an unpublished decision.
Upon Appellant’s petition, we granted review of the
following issue:
WHETHER APPELLANT’S GUILTY PLEA TO
WRONGFULLY USING NITROUS OXIDE UNDER
CLAUSE 1 OF ARTICLE 134, UCMJ, WAS
IMPROVIDENT.
For the reasons set forth below, we conclude that
Appellant’s guilty plea was provident.
I. BACKGROUND
Article 134 prohibits “all disorders and neglects to the
prejudice of good order and discipline in the armed forces.” 10
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U.S.C. § 934 (2000). The pertinent charge in the present case
alleged that Appellant, in violation of Article 134, “wrongfully
inhale[d] nitrous oxide, such conduct being prejudicial to good
order and discipline in the armed forces.” At trial, Appellant
entered a plea of guilty to this charge. During the inquiry
into the providence of the plea, the military judge informed
Appellant of the three elements of this offense:
[The first element is that] at or near San
Antonio, on or about 8 March 2002, you inhaled
nitrous oxide;
The second element is that your inhalation of
that was wrongful; and
The third element is that under the circumstances
your conduct was to the prejudice to good order
and discipline in the armed forces or was of a
nature to bring discredit upon the armed forces.
The military judge advised Appellant that in order to be guilty
of this offense “[y]ou had to know you were inhaling it, it
couldn’t be accidental” and that “there could be no law
enforcement excuse and no medical excuse.” In addition, the
military judge advised Appellant that:
[Conduct] prejudicial to the good order and
discipline . . . . means causing a reasonably
direct and obvious injury to good order and
discipline or had to be service discrediting.
Which means it would have to tend to harm the
reputation of the service or lower it in public
esteem.
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During the plea inquiry, Appellant indicated he understood the
elements of the offense, the definitions, and the defenses noted
by the military judge.
At the request of the military judge, Appellant provided
the following details of the offense. He and two other airmen
purchased canisters of nitrous oxide, a substance popularly
known as laughing gas. In addition to the canisters, called
“whippits,” they purchased balloons and “what they call a
cracker, where you put the cartridge in there and then crack the
top and screw it on and put a balloon over it to dispense the
air into the balloon and then take the balloon up and inhale
it.” Appellant told the military judge that he first observed
the other airmen inhale the nitrous oxide, and then he did so
“[b]y dispensing it into the balloon and inhaling it through the
balloon.” Appellant also admitted that inhaling the nitrous
oxide made him feel “real happy, made me laugh. Afterwards it
gave me a real bad headache.” Appellant said he felt this way
for “[a]bout ten seconds.” Moreover, Appellant indicated that
he knew he was inhaling nitrous oxide and that is what he
intended to do.
The military judge advised Appellant that “there is no
statut[ory] basis at least being charged here by the government
that nitrous oxide is illegal to inhale, just per se.” The
military judge added: “What you’re telling me though is that
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your inhaling [nitrous oxide] under the circumstances, the way
it happened in your case, was wrongful[, and that] under the
circumstances it was either prejudicial to good order and
discipline or was service discrediting.” The military judge
then asked Appellant to explain specifically why he believed
that his actions constituted a crime. Appellant offered two
primary reasons. First, he said that he was guilty of the
charged offense because the nitrous oxide “impaired my -– it
altered my thinking” and that “[f]or ten seconds I was, I guess
what I could say, high for ten seconds.” Second, Appellant
noted that he “belong[ed] to the Air Force. [Nitrous oxide]
damages brain cells. It’s bad for you . . . . [B]eing a part of
the Air Force, I know that I’m supposed to be on my toes, just
always looking good even in the public eye, not just the
military.” Following conclusion of the inquiry, the military
judge accepted Appellant’s plea.
In the present appeal, Appellant contends that his plea was
not provident. We review the military judge’s acceptance of
Appellant’s plea for abuse of discretion. United States v.
Eberle, 44 M.J. 374, 375 (C.A.A.F. 1996). The test is “whether
there is a ‘substantial basis’ in law and fact for questioning
the guilty plea.” United States v. Milton, 46 M.J. 317, 318
(C.A.A.F. 1997) (quoting United States v. Prater, 32 M.J. 433,
436 (C.M.A. 1991)).
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II. DISCUSSION
On appeal, the defense contends that the plea inquiry did
not establish facts demonstrating that Appellant’s conduct
caused “direct and palpable prejudice” to good order and
discipline. See Manual for Courts-Martial (MCM) (2000 ed.), pt.
IV, ¶ 60.c. (2)(a). The defense also addressed the relationship
between the military preemption doctrine under Article 134 and
the providency of Appellant’s plea. We shall first consider the
factual basis for the plea and then address the preemption
doctrine under Article 134.
A. FACTUAL BASIS FOR THE PLEA
Appellant asserts that the plea inquiry did not establish a
sufficient factual basis to demonstrate his guilt. Appellant
notes that Article 134 is not “such a catchall as to make every
irregular, mischievous, or improper act a court-martial
offense.” See MCM, pt. IV, ¶ 60.c. (2)(a).
In the present case, the military judge did not rely simply
on affirmative or negative responses to his questions, but took
care to ensure that the Appellant, through his own words,
explained an understanding of the criminal nature of his
conduct. Beyond acknowledging that he was high for a brief ten-
second period, Appellant noted that the inhalation of nitrous
oxide was punishable because of the impairment and alteration of
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his thinking, and because it “damages brain cells. It’s bad for
you.”
Appellant argues that a ten-second off-duty “high”
resulting from an over-the-counter substance is not sufficient
to demonstrate prejudicial conduct, and that the military judge
should not have relied on Appellant’s statement concerning
damage to brain cells because no additional facts were
introduced to demonstrate that consumption of nitrous oxide
causes harm to its users. In this case, the providence of the
plea is not dependent solely upon the brief period in which the
substance impaired Appellant’s mental faculties. Appellant
specifically stated that he was pleading guilty because
inhalation of the substance could produce damage to the brain.
The admission regarding impairment of mental faculties reflected
his understanding that he had engaged in conduct that would
undermine his capability and readiness to perform military
duties -- a direct and palpable effect on good order and
discipline. If he wished to challenge the legal basis for the
charge, he could have done so through a motion to dismiss or a
plea of not guilty at trial.
Appellant has provided no information on appeal that would
undermine the validity of his acknowledgement at trial as to the
harmful effects of inhalation of nitrous oxide. On the
contrary, we take judicial notice of the fact that a number of
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United States v. Erickson, No. 04-0721/AF
states have recognized the harmful effects by criminalizing
inhalation of nitrous oxide. See, e.g., Tex. Health & Safety
Code Ann. § 485.031 (Vernon 2001); Tex. Health & Safety Code
Ann. § 484.003(b) (Vernon 2001); Ark. Code Ann. § 5-64-1201(2001); Cal. Penal Code § 381b (West 1999); Fla. Stat. § 877.111(West 2001); Ind. Code § 35-46-6-3 (2004). We emphasize that
such state action is not necessary to sustain a wrongful
inhalation conviction under Article 134. Indeed, in the present
case the military judge apparently viewed the local state law as
not prohibiting the inhalation of nitrous oxide. Likewise, we
note that our decision does not preclude an accused, in the
future, from challenging the propriety of a similar inhalation
charge under Article 134 in terms of the sufficiency of the
impact on good order and discipline. We simply note the state
laws here for the purpose of underscoring the absence of a basis
in the present case for questioning the factual sufficiency of
Appellant’s statements during the plea inquiry.
B. THE MILITARY PREEMPTION DOCTRINE UNDER ARTICLE 134
The military preemption doctrine limits the application of
Article 134 with respect to conduct covered by the specific
punitive articles. MCM, pt. IV, ¶ 60.c. (5)(a). This statutory
interpretation doctrine does not necessarily preclude treatment
of offenses under Article 134 whenever there is a similar
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offense in the specific punitive Articles. As we noted in
United States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), “simply
because the offense charged under Article 134, UCMJ, embraces
all but one element of an offense under another article does not
trigger operation of the preemption doctrine.” For an offense
to be excluded from Article 134 based on preemption “it must be
shown that Congress intended the other punitive article to cover
a class of offenses in a complete way.” Id. at 85.
Appellant cites case law suggesting that inhalation of an
intoxicating substance cannot be punished under Article 134
because the field is preempted by Article 112a, which bears the
heading “Wrongful use, possession, etc., of controlled
substances.” Brief of Appellant at 13 (citing United States v.
Plesac, No. ACM 30441, (1994 CCA Lexis 97, at *4, 1994 WL
606002, at *1 (A.F. Ct. Crim. App. Oct. 25, 1994) (unpublished
opinion)(quoting United States v. Reichenbach, 29 M.J. 128, 136-
37 (C.M.A. 1989)). The legislative history of Article 112a,
however, reflects congressional intent to not cover the class of
drug-related offenses in a complete way. See S. Rep. No. 98-
53, at 29 (1983) (Article 112a “is intended to apply solely to
offenses within its express terms. It does not preempt
prosecution of drug paraphernalia offenses or other drug-related
offenses under Article 92, 133, or 134 of the UCMJ.”) There is
nothing on the face of the statute creating Article 112a or in
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its legislative history suggesting that Congress intended to
preclude the armed forces from relying on Article 134 to punish
wrongful use by military personnel of substances, not covered by
Article 112a, capable of producing a mind-altered state. See
Military Justice Act of 1983, Pub. L. No. 98-209, § 8(a), 97
Stat. 1393, 1403 (1983). To the extent that dicta in
Reichenbach, suggests otherwise with respect to prejudicial or
service-discrediting conduct, see 29 M.J. at 136-37, we decline
to adhere to that view.
III. CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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