UNITED STATES, Appellee
v.
Michael E. MITCHELL, Corporal
U.S. Marine Corps, Appellant
No. 07-0225
Crim. App. No. 200501185
United States Court of Appeals for the Armed Forces
Argued December 11, 2007
Decided April 16, 2008
EFFRON, C.J., delivered the opinion of the Court, in which
BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Major Richard D. Belliss, USMC (argued);
Lieutenant Brian L. Mizer, JAGC, USN.
For Appellee: Captain Tai D. Le, USMC (argued); Commander Paul
C. LeBlanc, JAGC, USN, and Captain Roger E. Mattioli, USMC.
Military Judge: D. J. Daugherty
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Mitchell, No. 07-0225/MC
Chief Judge EFFRON delivered the opinion of the Court.
A general court-martial, composed of a military judge
sitting alone, convicted Appellant, pursuant to his pleas, of
two specifications of distribution of a controlled substance and
one specification of indecent assault, in violation of Articles
112a and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 912a, 934 (2000). The adjudged sentence included a
dishonorable discharge, confinement for seven years, and
reduction to pay grade E-1. The convening authority approved
the sentence as adjudged. Pursuant to a pretrial agreement, the
convening authority suspended all confinement in excess of
thirty-six months. The United States Navy-Marine Corps Court of
Criminal Appeals affirmed. United States v. Mitchell, No. NMCCA
200501185 (N-M. Ct. Crim. App. Sept. 18, 2006) (unpublished).
On Appellant’s petition, we granted review on Issue I and
specified review on Issue II:
I. WHETHER APPELLANT’S GUILTY PLEA TO INDECENT ASSAULT AS
A PRINCIPAL WAS IMPROVIDENT WHERE THE PROVIDENCE
INQUIRY DOES NOT ESTABLISH THAT APPELLANT POSSESSED
THE SPECIFIC INTENT TO GRATIFY HIS LUST OR SEXUAL
DESIRES.
II. WHETHER APPELLANT’S GUILTY PLEA TO DISTRIBUTING
MARIJUANA WAS PROVIDENT WHEN APPELLANT TOLD THE
MILITARY JUDGE THAT THE SUBSTANCE HE DISTRIBUTED WAS
NOT MARIJUANA.
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The two issues before us involve the providence of
Appellant’s guilty pleas. Before accepting a guilty plea, the
military judge must conduct an inquiry of the accused to ensure
that there is an adequate factual basis for the plea. United
States v. Aleman, 62 M.J. 281, 283 (C.A.A.F. 2006); United
States v. Care, 18 C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).
This inquiry must reflect that the accused understands the plea
and is entering it voluntarily. Aleman, 62 M.J. at 283. The
accused must admit to each element of the offenses to which the
accused is pleading guilty. United States v. Simmons, 63 M.J.
89, 92 (C.A.A.F. 2006); Rule for Courts-Martial (R.C.M.) 910(e)
Discussion. “If an accused ‘sets up matter inconsistent with
the plea’ at any time during the proceeding, the military judge
must either resolve the apparent inconsistency or reject the
plea.” United States v. Garcia, 44 M.J. 496, 498 (C.A.A.F.
1996) (quoting Article 45(a), UCMJ, 10 U.S.C. § 845(a)).
We review a military judge’s decision to accept a guilty
plea for an abuse of discretion. United States v. Eberle, 44
M.J. 374, 375 (C.A.A.F. 1996). Once a military judge accepts an
accused’s plea as provident and enters findings based on the
plea, we will not reject the plea unless there is a
“‘substantial basis’ in law and fact for questioning the guilty
plea.” United States v. Prater, 32 M.J. 433, 436 (C.M.A. 1991);
see United States v. Phillippe, 63 M.J. 307, 309 (C.A.A.F.
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United States v. Mitchell, No. 07-0225/MC
2006). The “‘mere possibility’” of a conflict is not sufficient
to overturn a military judge’s acceptance of a guilty plea.
Phillippe, 63 M.J. at 309 (quoting Garcia, 44 M.J. at 498).
For the reasons set forth below, we conclude in Part I that
Appellant’s guilty plea to the charge of indecent assault was
provident. We conclude in Part II that Appellant’s guilty plea
to distribution of marijuana was improvident with respect to
distribution but provident with respect to the lesser included
offense of attempted distribution.
I. INDECENT ASSAULT (ISSUE I)
Appellant pled guilty to committing an indecent assault on
the victim, NC, by “aiding, counseling, and encouraging” Lance
Corporal (LCpl) Beckham to have sexual intercourse with NC, in
violation of Article 134, UCMJ. The granted issue asks whether
a person can be convicted as a principal by aiding and abetting
absent proof that the person possessed the intent required of
the actual perpetrator of the offense. Here, Appellant contends
that the plea inquiry did not demonstrate that he acted with the
specific intent to gratify his own lust or sexual desires, and
that his plea is therefore improvident.
Article 77(1), UCMJ, 10 U.S.C. § 877(1) (2000), provides
that a person is liable as a principal if the person commits a
punishable offense or “aids, abets, counsels, commands, or
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United States v. Mitchell, No. 07-0225/MC
procures” the commission of the offense. Our case law follows
Judge Learned Hand’s interpretation of aiding and abetting,
under which it is necessary that the accused “‘in some sort
associate himself with the venture, that he participate in it as
in something that he wishes to bring about, [and] that he seek
by his action to make it succeed.’” United States v. Pritchett,
31 M.J. 213, 217 (C.M.A. 1990) (quoting United States v. Peoni,
100 F.2d 401, 402 (2d Cir. 1938)). Under Pritchett, aiding and
abetting requires proof of the following: “(1) the specific
intent to facilitate the commission of a crime by another; (2)
guilty knowledge on the part of the accused; (3) that an offense
was being committed by someone; and (4) that the accused
assisted or participated in the commission of the offense.” Id.
(citations omitted); see United States v. Gosselin, 62 M.J. 349,
351-52 (C.A.A.F. 2006). Intent may be inferred from the
circumstances of the particular case. See, e.g., Simmons, 63
M.J. at 92-94.
During the providence inquiry on the indecent assault
charge, the military judge advised Appellant of the elements and
definitions of aider and abettor liability under Article 77,
UCMJ. The military judge stated that “an aider and abettor must
knowingly and willfully participate in the commission of the
crime as something he wishes to bring about and must aid,
encourage, or excite the person to commit the criminal act.” In
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addition, the military judge informed Appellant that he must
have “consciously share[d] in the perpetrator’s actual criminal
intent” but did not have to “agree with or even have knowledge
of the means by which LCpl Beckham carried out that criminal
intent.”
The military judge also advised Appellant of the elements
of indecent assault under Article 134, UCMJ. In particular, the
military judge stated that Appellant’s acts must have been “done
with the intent to gratify lust or sexual desires.” Appellant
indicated that he understood the elements of principal liability
and indecent assault, the definitions, and defenses explained by
the military judge.
In conjunction with the plea inquiry, the prosecution
introduced a stipulation of fact in which Appellant admitted
that he indecently assaulted NC by “aiding, counseling, and
encouraging” LCpl Beckham to “have sexual intercourse with [NC]
with intent to gratify LCpl Beckham’s sexual desires.” In the
stipulation, Appellant admitted that he drove LCpl Beckham and
NC, LCpl Beckham’s girlfriend, to NC’s parents’ off-base
residence after attending a party. Appellant acknowledged that
LCpl Beckham was hesitant to leave NC at her residence because
NC was intoxicated. Appellant admitted that he then uttered
words of encouragement to LCpl Beckham, intending for LCpl
Beckham to have sexual intercourse with NC. Appellant
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United States v. Mitchell, No. 07-0225/MC
stipulated that LCpl Beckham was reluctant initially to have
sexual intercourse with NC. Appellant stated that after his
encouragement, LCpl Beckham partially undressed NC in the back
seat of the vehicle and digitally penetrated her vagina with the
intent to gratify LCpl Beckham’s sexual desires, while Appellant
sat in the driver’s seat and watched LCpl Beckham’s actions.
During the providence inquiry, Appellant confirmed the
admissions made in the stipulation of fact. Explaining to the
military judge how he aided and abetted LCpl Beckham’s actions,
Appellant stated: “So my intent -- I thought [LCpl Beckham] was
probably going to try to have sexual intercourse with [NC].
Even though he didn’t want to do that before, he put her back in
the car.” Appellant repeatedly acknowledged that he encouraged
LCpl Beckham’s actions, but Appellant made no further statements
regarding his intent. In addition, Appellant admitted that LCpl
Beckham’s actions were indecent, that NC did not provide valid
consent to LCpl Beckham’s actions, and that Appellant’s conduct
was prejudicial to good order and discipline in the armed
forces.
Appellant contends that the plea colloquy did not address
adequately the element of indecent assault which requires proof
that “the acts were done with the intent to gratify the lust or
sexual desires of the accused.” Manual for Courts-Martial,
United States pt. IV, para. 63.b.(2) (2005 ed.) (MCM).
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United States v. Mitchell, No. 07-0225/MC
According to Appellant, it was not sufficient for the plea
inquiry to establish his intent, at the time of the offense, to
facilitate an assault with the knowledge that the assault was
undertaken to satisfy LCpl Beckham’s lust or sexual desires.
Appellant urges us to conclude that the plea inquiry was
defective because the military judge did not ascertain whether
Appellant aided and abetted the indecent assault with intent to
gratify Appellant’s own lust or sexual desires, independent of
LCpl Beckham’s intent.
Appellant relies on the following sentence in paragraph
1.b.(4) of Part IV of the Manual:
When an offense charged requires proof of a specific
intent or particular state of mind as an element, the
evidence must prove that the accused had that intent
or state of mind, whether the accused is charged as a
perpetrator or an “other party” to crime.
The interpretation of substantive offenses in Part IV of the
Manual is not binding on the judiciary, which has the ultimate
responsibility of interpreting substantive offenses under the
UCMJ. See United States v. Czeschin, 56 M.J. 346, 348 (C.A.A.F.
2002) (citing United States v. Davis, 47 M.J. 484, 486 (C.A.A.F.
1998)). Although not binding, courts apply the Manual’s
guidance when the Manual reflects an accurate interpretation of
the law.
In the present case, the development of the aiding and
abetting language in the Manual does not indicate that the
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President sought to alter the longstanding common law treatment
of aiding and abetting. See MCM para. 156 (1951 ed.); Charles
L. Decker et al., Dep’t of Defense, Legal and Legislative Basis,
Manual for Courts-Martial, United States para. 156 (1951); MCM
para. 156 (1969 rev. ed.); Dep’t of the Army, Pam. 27-2,
Analysis of Contents Manual for Courts-Martial, United States
1969 Rev. Ed. ch. 28, para. 156 (July 1970); MCM pt. IV, para.
1.b.(4) (1984 ed.); MCM, Analysis of the Rules for Courts-
Martial app. 21 at A21-82 (1984 ed.). Under these
circumstances, to the extent that there is tension between the
interpretative guidance in the Manual and our case law, we
adhere to our case law and the traditional interpretation of
aiding and abetting under Article 77, UCMJ.
Under our case law, the intent element of indecent assault
may be satisfied, in the case of an accomplice, by proof that
the accomplice shared in the perpetrator’s criminal purpose and
intended to facilitate the intent of the perpetrator with
respect to the commission of the offense. See Simmons, 63 M.J.
at 92-93; Gosselin, 62 M.J. at 351-52; Pritchett, 31 M.J. at
216-18. Accordingly, when an accused pleads guilty to aiding
and abetting an indecent assault, the accused must admit to
sharing in the perpetrator’s criminal intent to gratify the lust
or sexual desires of the perpetrator. See Simmons, 63 M.J. at
92. The accused’s admissions must objectively support a
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military judge’s finding that: (1) the accused possessed the
specific intent to facilitate the commission of the indecent
assault; (2) the accused had a guilty knowledge; (3) the
indecent assault was being committed by someone; and (4) the
accused assisted or participated in the commission of the
indecent assault. See Gosselin, 62 M.J. at 351-52.
In the present case, Appellant’s admissions during the
providence inquiry, together with the stipulation of fact,
establish each of these factors. Appellant admitted that he
acted with the specific intent to gratify LCpl Beckham’s lust or
sexual desires. In addition, Appellant admitted that he
intended to facilitate LCpl Beckham’s commission of the indecent
assault, knew that LCpl Beckham had indecently assaulted NC, and
encouraged LCpl Beckham’s commission of the indecent assault.
The military judge was not required to elicit facts from
Appellant demonstrating that he intended to gratify his own lust
or sexual desires. Accordingly, the military judge did not err
by accepting Appellant’s plea as provident.
II. MARIJUANA DISTRIBUTION (ISSUE II)
Appellant pled guilty to distribution of marijuana. Issue
II asks whether Appellant’s plea was provident in light of
Appellant’s statements during the providence inquiry and
sentencing regarding the identity of the distributed substance.
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United States v. Mitchell, No. 07-0225/MC
A. BACKGROUND
At trial, Appellant entered a plea of guilty to the charge
that he had “wrongfully distribute[d] a total of approximately
20 grams of marijuana, a controlled substance,” to LCpl Beckham
on divers occasions. During the plea inquiry, the military
judge advised Appellant of the elements of wrongful distribution
of marijuana. In the course of the inquiry, the military judge
advised Appellant that he had to actually know that he was
distributing marijuana or a contraband substance and that the
distribution was wrongful. See Article 112a, UCMJ; MCM pt. IV,
para. 37.b.(3).
In the stipulation of fact introduced by the prosecution at
trial, Appellant admitted that he “distributed approximately
twenty grams of marijuana, a controlled substance, to LCpl
Beckham.” Appellant stated that he sold marijuana to LCpl
Beckham on three occasions. In addition, Appellant acknowledged
that at the time of the transactions, he “believed the substance
he sold LCpl Beckham to be marijuana.”
During the providence inquiry, the military judge asked
Appellant to explain why he was guilty of wrongfully
distributing marijuana. Appellant stated:
At the time, sir -- at the time I thought that the
substance I was giving Lance Corporal Beckham was
marijuana, sir. And then the charges were preferred
against me saying you gave Lance Corporal Beckham
marijuana.
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At the time of the investigation, I thought it was,
sir. Come to find out towards the end of the month of
August, sir, that the stuff that -- the actual stuff
that I had given Lance Corporal Beckham wasn’t
marijuana. At least from the person that told me --
that gave me the actual substance, sir, was not
marijuana, sir.
The military judge then inquired whether Appellant distributed
what he “believed to be marijuana” to LCpl Beckham. Appellant
responded affirmatively. In addition, Appellant agreed that the
distributed substance was a “green, leafy substance.”
Appellant asserted that when he purchased the substance
from another Marine in Okinawa, he was not told that the
substance was marijuana. Appellant stated that based on his
knowledge of marijuana, the price that he paid for the substance
was higher than the cost of marijuana in the United States.
During the inquiry, defense counsel confirmed that the
distributed substance had never been recovered or tested. The
military judge asked Appellant whether he was “satisfied from
what you know and what the marijuana looked like that it was in
fact marijuana.” Appellant responded: “At the time, sir. Yes,
sir.” Appellant provided a similar answer when asked by the
military judge whether he admitted to the conduct as alleged in
the specification.
During the sentencing hearing, while describing whether he
had profited from his transactions with LCpl Beckham, Appellant
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referred to the distributed substance as the “actual,
supposedly, marijuana.” Additionally, in sentencing arguments,
trial counsel stated that the distributed substance was “what
[Appellant] believed to be at the time at least, marijuana.”
B. DISCUSSION
When Appellant’s statements on the record raised the
possibility that the distributed substance was not marijuana, he
set up matter inconsistent with his guilty plea. See United
States v. Zachary, 63 M.J. 438, 444 (C.A.A.F. 2006); see also
Article 45(a), UCMJ; R.C.M. 910(e) Discussion. The military
judge’s subsequent questions regarding the characteristics and
price of the distributed substance failed to resolve whether
Appellant believed that, at the time he entered a plea of
guilty, his actions constituted the wrongful distribution of
marijuana. In the absence of further inquiry by the military
judge, there is a substantial basis in law and fact to question
Appellant’s plea to wrongful distribution of marijuana. See
Prater, 32 M.J. at 436.
Under these circumstances, we set aside the finding of
guilty to wrongful distribution of marijuana. Appellant’s
admissions during the providence inquiry, however, together with
the stipulation of fact, establish all the elements of the
lesser included offense of attempted distribution of marijuana.
See MCM pt. IV, paras. 4.b., 37.d.(3). In view of that finding
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and the other offenses of which Appellant was convicted, we
conclude that any error in the findings was not prejudicial as
to the sentence. United States v. Thomas, 65 M.J. 132, 135
(C.A.A.F. 2007); United States v. Shelton, 62 M.J. 1, 5
(C.A.A.F. 2005).
III. DECISION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed, except with respect to the
finding of distribution of marijuana. As to that offense, we
affirm a finding of the lesser included offense of attempted
distribution of marijuana, in violation of Article 80, UCMJ, 10
U.S.C. § 880 (2000).
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