United States v. Lieutenant Colonel GREGORY S. PIEPER

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
MULLIGAN, FEBBO, and WOLFE
Appellate Military Judges
UNITED STATES, Appellee
v.
Lieutenant Colonel GREGORY S. PIEPER
United States Army, Appellant
ARMY 20170093
Headquarters, Fort Bragg
Jeffery R. Nance, Military Judge
Lieutenant Colonel William E. Mullee, Staff Judge Advocate
For Appellant: Lieutenant Colonel Tiffany M. Chapman, JA; Major Todd W.
Simpson, JA; Lieutenant Colonel Christopher D. Carrier, JA (on brief); Lieutenant
Colonel Tiffany M. Chapman, JA; Major Todd W. Simpson, JA; Lieutenant Colonel
Christopher D. Carrier, JA (on reply brief).
For Appellee: Colonel Tania M. Martin, JA; Captain Austin Fenwick, JA; Captain
KJ Harris, JA (on brief).
13 June 2018
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SUMMARY DISPOSITION
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FEBBO, Judge:
A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of one specification of violating a lawful general regulation,
seven specifications of sexual abuse of a child, one specification of conduct
unbecoming an officer, and three specifications of possession of child pornography,
in violation of Articles 92, 120b, 133, and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 892, 920b, 933, and 934 (2012) [UCMJ]. The military judge sentenced
appellant to a dismissal and confinement for forty-two months. The convening
authority approved the adjudged sentence.
This case is before us for review pursuant to Article 66, UCMJ. In his sole
assignment of error, appellant asserts the military judge erred in accepting his guilty
plea to violating a general regulation requiring individuals to register privately
owned firearms held on post because the evidence did not establish a mens rea of at
least recklessness. After our review of the providence inquiry, we find no
substantial basis in law or fact to question the judge’s acceptance of the plea.
PIEPER—ARMY 20170093
BACKGROUND
Appellant was charged, inter alia, with violating a Fort Bragg general
regulation by failing to register his privately owned firearms that were stored at his
on-post residence. XVIII Airborne Corps and Fort Bragg Reg. 190-11-1, Military
Police: Privately Owned Weapons, Ammunition Control, and Prohibited Weapons
(16 Aug. 2011), directed:
Personnel must register privately owned firearms they
have on post. This requirement applies regardless of
personnel category (military, Family member, guest,
unaffiliated civilian, etc.) and regardless of which of the
authorized locations (Family housing or unit arms room) is
used for storage of the firearms. 1
Appellant was a competitive shooter and stored nine firearms in a gun safe in
his on-post quarters. He failed to register the firearms as was required by the local
regulation.
Appellant entered into a so-called “naked plea,” where he did not have the
benefit of a pretrial agreement. Accordingly, there is no stipulation of fact, and we
are left with only the providence inquiry to examine.
During the providence inquiry, the military judge defined the elements of the
offense. The military judge then engaged in the following guilty plea inquiry, in
which appellant admitted that the regulation applied to him and he failed to obey it.
ACC: I am a competitive shooter. On or about 18
November 2013, I owned approximately nine firearms. I
kept these firearms in my base housing in my gun safe
when I was not using them for practice or competition.
I’m aware that I was required to register these firearms
with base authorities in order to have them in my housing
unit at Fort Bragg, pursuant to paragraph 5-1 of XVIII
Airborne Corps and Fort Bragg Regulation 190-11-1, but I
failed to do so. I should have registered my firearms. I
failed to do so. I have no justification or excuse for my
actions. I am guilty of this offense. . . .
MJ: Do you believe you had any legal justification or
excuse for what you did?
1
The regulation in question is not unique to Fort Bragg, and similar regulations exist
for many military installations.
2
PIEPER—ARMY 20170093
ACC: I do not, Your Honor.
MJ: Could you have avoided violating this general
regulation if you had wanted to?
ACC: By exercising due diligence and looking into the
regulation as I should have, I could have avoided this,
Your Honor.
Appellant explained to the military judge that he lived on-post for
approximately a year without registering the firearms.
LAW AND DISCUSSION
We review a military judge’s decision to accept a guilty plea for an abuse of
discretion. United States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). “It is an
abuse of discretion for a military judge to accept a guilty plea . . . if the ruling is
based on an erroneous view of the law.” United States v. Weeks, 71 M.J. 44, 46
(C.A.A.F. 2012) (citing Inabinette, 66 M.J. at 321-22). A guilty plea will only be
set aside if we find a substantial basis in law or fact to question the military judge’s
acceptance of the plea. Inabinette, 66 M.J. at 322 (citing United States v. Prater, 32
M.J. 433, 436 (C.M.A. 1991)).
Appellant claims on appeal that he only admitted to being negligent for failing
to register his firearms because he failed to exercise “due diligence” and “look[] into
the regulation as [he] should have.” As such, appellant cites to Elonis v. United
States, 135 S. Ct. 2001 (2015), and United States v. Gifford, 75 M.J. 140 (C.A.A.F.
2016), for the proposition that negligence is an insufficient mens rea to separate
innocent from wrongful conduct under the regulation at issue. Appellant therefore
argues the military judge should not have accepted his guilty plea to violating the
Fort Bragg regulation, because appellant’s statements to the military judge only
indicate that appellant was negligent as to his obligations under the regulation, and
not that he was reckless, or had actual knowledge of his obligation to register his on-
post firearms.
Ignorance of relevant facts may, in some cases, excuse otherwise criminal
conduct. Ignorance of the law, however, ordinarily does not. For example, in
Gifford, the Court of Appeals for the Armed Forces (CAAF) held that a
servicemember may not be convicted of violating a general order against providing
alcohol to persons under the age of 21 if that servicemember was not at least
reckless as to the age of the persons to whom he or she provided alcohol. Id. at 146-
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PIEPER—ARMY 20170093
47. 2 Thus, under Gifford, ignorance of certain facts may excuse otherwise criminal
conduct. Id. at 147-48. By contrast, ignorance of the law does not, and the CAAF
explained the long-standing principle “ignorantia juris non excusat” 3 is fully
compatible with Elonis and its progeny. Gifford, 75 M.J. at 143, n.4 (“The fact that
actual knowledge of a general order is typically immaterial does not conflict with
the coordinate truth that mens rea typically is an essential element of every criminal
offense. [Gifford] involves a mistake of fact as to age, not a mistake of law . . . .”).
While appellant raises a challenge to the providence of his guilty plea based
on Gifford, the appellant’s claimed ignorance is not one of fact, as in Gifford, but
one of law. On brief, the appellant contends that he was merely negligent as to
whether he knew he was required to register his on-post firearms. Even assuming
the appellant’s contention is true, it alleges ignorance of the law, not ignorance of
the underlying facts.
Appellant does not contend on appeal that he was ignorant of the fact that he
possessed firearms, or that he stored the firearms on post. In fact, appellant
explained that he kept his firearms in a special safe in his on-post residence and
returned his firearms to that safe between shooting practice and competitions. Nor
does appellant claim he negligently believed the firearms were registered. Instead,
appellant contends that he did not articulate to the military judge that he either knew
of or was reckless as to the requirement that he register his firearms at the time that
he stored them on-post. In other words, he did not know the law. Ignorance of the
law, however, neither excuses criminal conduct nor implicates an insufficient mens
rea under Gifford. 4
We find no substantial basis in law or fact to question the military judge’s
acceptance of the plea. The military judge clearly explained the elements of the
offense to appellant, and appellant explained why his conduct met each and every
one of those elements. It is not an element of the offense that the appellant knew the
2
The holding in Gifford is limited to circumstances where the regulation or general
order in question is silent as to mens rea. Courts will, of course, give effect to a
culpable mental state specified in a regulation or general order. Id. at 142-43.
3
The classical Latin formulation, “ignorance of the law excuses not.”
4
Our analysis might be different if appellant had made statements during the Care
inquiry that should have alerted the military judge that appellant may have been
ignorant of a material fact underlying the offense. For example, imagine appellant
stated he was unaware of the contents of the safe containing the firearms because the
safe was actually the property of a deployed friend and he was storing it as a favor.
After such a statement, further inquiry might be necessary as to whether appellant
was at least reckless as to the contents of the gun safe.
4
PIEPER—ARMY 20170093
law at the time he broke it. Accordingly, on the basis of the entire record, we find
that the findings and sentence as approved by the convening authority are correct in
law and fact.
CONCLUSION
The findings and sentence as adjudged and approved by the convening
authority are AFFIRMED.
Senior Judge MULLIGAN and Judge WOLFE concur.
FORTHE
FOR THECOURT:
COURT:
MALCOLM H. SQUIRES, JR.
MALCOLM H. SQUIRES, JR.
Clerk of Court
Clerk of Court
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