United States v. Nance

UNITED STATES, Appellee
v.
Wren A. NANCE, Senior Airman
U.S. Air Force, Appellant
No. 09-0164
Crim. App. No. S31445
United States Court of Appeals for the Armed Forces
Argued April 27, 2009
Decided June 3, 2009
RYAN, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and STUCKY, JJ., joined.
Counsel
For Appellant: Captain Michael A. Burnat (argued); Major Imelda
L. Paredes (on brief); Major Lance J. Wood and Major Shannon A.
Bennett.
For Appellee: Captain Michael T. Rakowski (argued); Gerald R.
Bruce, Esq., and Major Jeremy S. Weber (on brief).
Military Judge: Charles E. Wiedie Jr.
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Nance, No. 09-0164/AF
Judge RYAN delivered the opinion of the Court.
A special court-martial composed of a military judge
sitting alone convicted Appellant, in accordance with his pleas,
of one specification of divers wrongful use of ecstasy, in
violation of Article 112a, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 912a (2000), and one specification of divers
wrongful use of Coricidin HBP Cough and Cold Medicine (CCC),
conduct prejudicial to good order and discipline, in violation
of Article 134, UCMJ, 10 U.S.C. § 934 (2000). The convening
authority approved the adjudged sentence of a bad-conduct
discharge and a reduction to pay grade E-1. In a split
decision, the United States Air Force Court of Criminal Appeals
(CCA) affirmed the findings and the sentence. United States v.
Nance, No. ACM S31445, 2008 CCA LEXIS 347, at *5, 2008 WL
4525389, at *2 (A.F. Ct. Crim. App. Sept. 12, 2008)
(unpublished).
Appellant challenges the providence of his guilty plea to
the violation of Article 134, UCMJ.1 Specifically, Appellant
argues that the military judge abused his discretion in
accepting Appellant’s plea because the military judge failed to
1
The Court granted review of the following issue:
WHETHER APPELLANT’S PLEA OF GUILTY TO ENGAGING IN
CONDUCT PREJUDICIAL TO GOOD ORDER AND DISCIPLINE WAS
IMPROVIDENT BECAUSE OF A LACK OF EVIDENCE IN THE
RECORD INDICATING THAT HIS CONDUCT WAS DIRECTLY
PREJUDICIAL TO GOOD ORDER AND DISCIPLINE.
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elicit a sufficient factual basis to establish that Appellant’s
conduct was prejudicial to good order and discipline in the
armed forces. We disagree.
I.
Prior to the court-martial, Appellant and the Government
entered into a pretrial agreement (PTA), in which Appellant
agreed, inter alia, to a stipulation of fact. Such a
stipulation, if accepted, “is binding on the court-martial and
may not be contradicted by the parties thereto.” Rule for
Courts-Martial (R.C.M.) 811(e). The stipulation of fact, in
relevant part, stated:
3. Between 1 December 2005 and 31 May 2006,
[Appellant] wrongfully used [CCC] by ingesting one box
of CCC on each of five (5) separate occasions. CCC is
an over-the-counter cold medicine. [Appellant, an E-
4,] used CCC with [three Air Force E-4s, one Air Force
E-3, one unknown active duty enlisted Army member, and
one civilian]. [Appellant] used CCC with the intent
to become intoxicated. Each time [Appellant] took
CCC, he consumed more than the maximum recommended
daily dosage and did so with the intent to alter his
mood or function. [Appellant] used CCC on five (5)
separate occasions at [another servicemember’s]
residence in Anchorage, Alaska.
4. Using CCC made [Appellant] feel like another
person. It made him thirsty, his brain feel warm and
tingly, and his eyesight fuzzy. While under the
influence of CCC, lights appeared more colorful to
[Appellant]. His motorskills were impaired by the CCC
use. On one or more occasions, [Appellant] passed out
or went into a dream-like state, from which he emerged
disoriented. The after-effects of CCC use experienced
by [Appellant] were headache, dry throat, inflammation
of the thyroids, and sometimes nausea.
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United States v. Nance, No. 09-0164/AF
5. [Appellant’s] use of CCC was, under the
circumstances, to the prejudice of good order and
discipline in the armed forces and of a nature to
bring discredit upon the armed forces.
6. [Appellant] knowingly used CCC by ingesting it
orally. This was willfull [sic] and wrongful, in that
[Appellant] had no legal justification to use CCC for
the purpose of becoming intoxicated. He was not
acting as an informant or undercover agent when he
used CCC. He chose to use CCC of his own free will,
without threats or intimidation.
Stipulation of Fact at 2, United States v. Nance, No. 09-0164
(Jan. 2, 2008).
At the court-martial, the military judge and Appellant
engaged in a lengthy plea colloquy that began with a discussion
of Appellant’s understanding of the use and effect of the
stipulation of fact, after which the military judge accepted the
stipulation and admitted it into evidence. The military judge
then explained to Appellant the need to establish an adequate
factual basis to support each element of the offenses to which
Appellant had pleaded guilty. After questioning Appellant about
the specifics related to the use of CCC and why that conduct was
wrongful, the military judge asked Appellant if he believed that
his actions were to the prejudice of good order and discipline
in the armed forces. Appellant replied “Yes, sir,” after which
the military judge asked Appellant to explain how his actions
were prejudicial to good order and discipline. Appellant
responded:
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United States v. Nance, No. 09-0164/AF
Well, Your Honor, as a member of the United States Air
Force, it’s not in the best interests and it puts a
bad image on the United States Air Force when airman
[sic] or other members sit around and, you know, break
the law by doing, you know, partaking of [CCC] or any
other type of drugs that are illegal; that brings a
bad image upon yourself and, you know, who we work
for.
Transcript of Record of Trial at 41, United States v. Nance,
No. 09-0164 (Jan. 7, 2008) [hereinafter Record]. The military
judge asked Appellant nine additional follow-up questions about
his abuse of CCC, based on the contents of the stipulation of
fact. Record at 41-43. Through these questions, to which
Appellant replied either “Yes, Your Honor” or “Not entirely,
Your Honor,” the military judge elicited Appellant’s agreement
that risking real physical damage from the wrongful use of CCC,
misusing medication in the company of other airmen, and failing
to uphold military standards impacted good order and discipline
and military readiness. Id.
The military judge recessed the court-martial “out of an
abundance of caution” and convened an R.C.M. 802 conference to
discuss with the trial and defense counsel whether the
prejudicial to good order and discipline element had been
established. Record at 43-46. After the conference, the
military judge announced on the record that:
[Appellant] discussed about and met what would be
conduct prejudicial to good order and discipline. He
did talk about the fact that there were other members
present when he was using and how the affects [sic],
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United States v. Nance, No. 09-0164/AF
you know, of airmen getting together and abusing this
would have a direct and palpable effect on good order
and discipline, and certainly readiness as well.2
Record at 47.
Finally, the military judge asked trial and defense counsel
two separate times whether either wanted further inquiry on the
issue whether Appellant’s conduct was prejudicial to good order
and discipline, and both times each counsel said no.
II.
Article 45(a), UCMJ, 10 U.S.C. § 845(a) (2000), requires
military judges to reject a plea of guilty “if it appears that
[an accused] has entered the plea of guilty improvidently.” To
prevent the acceptance of improvident pleas, this Court has long
placed a duty on the military judge to establish, on the record,
the factual bases that establish that “the acts or omissions of
the accused constitute the offense or offenses to which he is
pleading guilty.” United States v. Care, 18 C.M.A. 535, 541, 40
C.M.R. 247, 253 (1969) (establishing the requirement for an on
the record “Care” inquiry in guilty plea cases). If the
military judge fails to establish that there is an adequate
2
The military judge also found that Appellant had established
that his wrongful use of CCC was “service discrediting,” and
that this conduct was therefore prejudicial to good order and
discipline, citing United States v. Rogers, 50 M.J. 805 (A.F.
Ct. Crim. App. 1999), a case decided well before United States
v. Medina, 66 M.J. 21 (C.A.A.F. 2008). This conclusion does not
affect the providence of the plea with respect to the
prejudicial to good order and discipline element and is not the
basis for the Court’s decision today.
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basis in law and fact to support the accused’s plea during the
Care inquiry, the plea will be improvident. United States v.
Inabinette, 66 M.J. 320, 321-22 (C.A.A.F. 2008); see also R.C.M.
910(e) (“The military judge shall not accept a plea of guilty
without making such inquiry of the accused as shall satisfy the
military judge that there is a factual basis for the plea.”).
“A military judge’s decision to accept a guilty plea is reviewed
for an abuse of discretion. A military judge abuses this
discretion if he fails to obtain from the accused an adequate
factual basis to support the plea -- an area in which we afford
significant deference.” Inabinette, 66 M.J. at 322 (citations
and quotation marks omitted).
In this case, Appellant argues that the military judge
failed to elicit, from Appellant, a sufficient factual basis to
establish that Appellant’s conduct was to the prejudice of good
order and discipline in the armed forces. Appellant asserts
that the military judge’s use of leading questions, to which
Appellant responded with simple “Yes, Your Honor,” and “Not
entirely, Your Honor” answers, was insufficient under this
Court’s guidance in United States v. Jordan. See 57 M.J. 236,
238 (C.A.A.F. 2002) (“It is not enough to elicit legal
conclusions. The military judge must elicit facts to support
the plea of guilty.”).
We disagree. In this case, “‘the factual circumstances as
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United States v. Nance, No. 09-0164/AF
revealed by the accused himself objectively support [his]
plea.’” United States v. Barton, 60 M.J. 62, 64 (C.A.A.F. 2004)
(quoting United States v. Davenport, 9 M.J. 364, 367 (C.M.A.
1980)). The military judge explicitly stated two reasons why
Appellant’s conduct was prejudicial to good order and
discipline: (1) because Appellant’s repeated gathering with
other airmen to abuse CCC with the intent of getting high would
have a direct and palpable effect on good order and discipline;
and (2) because that conduct would affect military readiness.
The factual bases underlying these findings came directly from
Appellant.3
The stipulation of fact established that Appellant met on
five occasions with four fellow airmen, including one of lower
rank, and one enlisted member of the U.S. Army to abuse CCC with
the intent to become intoxicated. Appellant described this
behavior in his own words during the plea colloquy, adding, “I
knew it was inappropriate for me to over medicate like that and
I knew that it was against good order and discipline.” Record
3
Although the stipulation of fact included a bare-bones
conclusion of law regarding the nature of Appellant’s conduct,
see Stipulation of Fact at 2, Nance, No. 09-0164 (Jan. 2, 2008)
(“[Appellant’s] use of CCC was, under the circumstances, to the
prejudice of good order and discipline in the armed forces and
of a nature to bring discredit upon the armed forces.”), nothing
in the record suggests that the military judge relied upon that
conclusion. To the contrary, the military judge independently
determined that Appellant’s conduct was to the prejudice of good
order and discipline based on the facts elicited from Appellant.
See Record at 40-50.
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United States v. Nance, No. 09-0164/AF
at 32. In regard to military readiness, the stipulation of fact
established that in addition to making Appellant high, abusing
CCC impaired Appellant’s motor skills and sometimes made
Appellant pass out or enter into a dream-like state from which
he emerged disoriented. Appellant repeated the same facts
during the plea inquiry, stating that he experienced nausea,
blackouts, and extremely impaired motor skills after taking CCC.
These facts legally and factually support the prejudicial
to good order and discipline element of the charged violation of
Article 134, UCMJ. See, e.g., United States v. Erickson, 61
M.J. 230, 232-33 (C.A.A.F. 2005) (finding that behavior that
undermined an appellant’s capability and readiness to perform
military duties had a direct and palpable effect on good order
and discipline); United States v. Guerrero, 33 M.J. 295, 298
(C.M.A. 1991) (finding wrongful conduct that might not be
criminal if performed in private to be prejudicial to good order
and discipline when performed in the presence of other
servicemembers). This does not, however, address the entire
thrust of Appellant’s argument.
In addition to challenging the factual basis for his plea,
Appellant argues that the military judge’s use of leading
questions transformed what would otherwise be a provident plea
with a sufficient basis in law and fact into an improvident one.
Again, we disagree. Although this Court has stressed that the
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use of leading questions that do no more than elicit “yes” and
“no” responses during the providence inquiry is disfavored,
United States v. Negron, 60 M.J. 136, 143 (C.A.A.F. 2004)
(citing Jordan, 57 M.J. at 238; United States v. Sweet, 42 M.J.
183, 185 (C.A.A.F. 1995); United States v. Lee, 16 M.J. 278, 282
(C.M.A. 1983)), it has never been the law that a military
judge’s use of leading questions automatically results in an
improvident plea. Rather, we examine the totality of the
circumstances of the providence inquiry, including the
stipulation of fact, as well as the relationship between the
accused’s responses to leading questions and the full range of
the accused’s responses during the plea inquiry. See Sweet, 42
M.J. at 185-86 (upholding a military judge’s acceptance of a
guilty plea in light of the totality of the circumstances,
including the relation between the stipulation of fact and the
accused’s “yes” and “no” answers during the plea inquiry).
In this case, the military judge used leading questions to
amplify three points that had already been established on the
record: (1) the objective facts set forth in the stipulation of
fact; (2) the objective facts already elicited from Appellant
earlier in the plea inquiry; and (3) Appellant’s explicit
agreement that his conduct was prejudicial to good order and
discipline in the armed forces. The military judge is required
to elicit from the accused factual circumstances that
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objectively support each element of the charged offense to which
a plea is entered. Barton, 60 M.J. at 64; Davenport, 9 M.J. at
367. Determining whether those factual circumstances establish
conduct that is or is not prejudicial to good order and
discipline is a legal conclusion that remains within the
discretion of the military judge in guilty plea cases. See
Jordan, 57 M.J. at 239 (finding whether an accused’s conduct was
prejudicial to good order and discipline to be a conclusion of
law).
III.
Nothing in the record presents a substantial basis in law
or fact for questioning the guilty plea. See Inabinette, 66
M.J. at 322 (“[I]n reviewing a military judge’s acceptance of a
plea for an abuse of discretion appellate courts apply a
substantial basis test: Does the record as a whole show ‘“a
substantial basis” in law and fact for questioning the guilty
plea.’” (quoting United States v. Prater, 32 M.J. 433, 436
(C.M.A. 1991))). Because the military judge did not abuse his
discretion in accepting Appellant’s plea, the decision of the
United States Air Force Court of Criminal Appeals is affirmed.
11