United States v. Gosselin

UNITED STATES, Appellee

v.

Stephen P. GOSSELIN II, Airman First Class
U.S. Air Force, Appellant

No. 05-0255

Crim. App. No. S30200

United States Court of Appeals for the Armed Forces

Argued November 1, 2005

Decided February 24, 2006

ERDMANN, J., delivered the opinion of the court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.

Counsel

For Appellant: Captain John S. Fredland (argued); Colonel
Carlos L. McDade, Major Sandra K. Whittington, and Captain
Christopher S. Morgan (on brief); Captain Diane M. Paskey.

For Appellee: Captain Nicole P. Wishart (argued); Lieutenant
Colonel Gary F. Spencer, Major Jin-Hwa L. Frazier, and Major
John C. Johnson (on brief); Lieutenant Colonel Robert V. Combs.

Military Judge: Thomas Pittman

This opinion is subject to revision before final publication.
United States v. Gosselin II, No. 05-0255/AF

Judge ERDMANN delivered the opinion of the court.

Airman First Class Stephen P. Gosselin II pled guilty to

using psilocybin mushrooms, using and distributing marijuana,

and wrongfully introducing psilocybin mushrooms onto Spangdahlem

Air Base, in violation of Article 112a, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. § 912a (2000). Gosselin was sentenced

to confinement for thirty days, a reduction in grade to E-1, and

a bad-conduct discharge. The convening authority approved the

sentence as adjudged and the Air Force Court of Criminal Appeals

affirmed the findings and sentence. United States v. Gosselin,

60 M.J. 768 (A.F. Ct. Crim. App. 2004).

This court will set aside a guilty plea where it determines

that 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) (quotation marks omitted). In

accepting Gosselin’s guilty plea to the offense of introducing

mushrooms onto Spangdahlem Air Base, the military judge relied

on an “aiding and abetting” theory of liability. Under that

theory Gosselin was required to admit to facts showing that he

intentionally and knowingly assisted or participated in the

commission of the offense by the primary actor, Airman

Etzweiler. We granted review to determine whether Gosselin’s

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providence inquiry established that he was guilty of aiding and

abetting Etzweiler in his commission of the offense.1

BACKGROUND

The sole issue before the Air Force Court of Criminal

Appeals and this court is the providence of Gosselin’s guilty

plea to the offense of wrongful introduction of psilocybin

mushrooms onto Spangdahlem Air Base. The military judge

conducted an extensive providence inquiry into this offense and

recessed the inquiry on two occasions to allow Gosselin the

opportunity to consult with his attorney.

The military judge first listed the elements of the

“introduction” offense and provided Gosselin the opportunity to

explain why he was guilty of the offense. Gosselin initially

stated that he went with Etzweiler to Maastricht2 where he “had a

good idea” Etzweiler intended to purchase mushrooms. He

testified that he agreed to go to Maastricht with Etzweiler

because he wanted to purchase a dragon statue there.

1
We granted review of the following issue:

WHETHER APPELLANT’S GUILTY PLEA TO
SPECIFICATION 4 OF THE CHARGE WAS
IMPROVIDENT WHERE, DURING THE PROVIDENCE
INQUIRY, APPELLANT DID NOT PERSONALLY ADMIT
TO AIDING OR ABETTING ANOTHER AIRMAN IN THE
COMMISSION OF THE OFFENSE CHARGED.
2
Maastricht is located in the Netherlands.

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Once in Maastricht, the two went into some “head shops”

where Gosselin looked for and purchased a dragon statue. After

Gosselin purchased his dragon, he accompanied Etzweiler while he

went into “head shops” looking for mushrooms. In one shop

Gosselin observed the cashier hand a bag to Etzweiler and he

testified that he knew the bag contained mushrooms. The two of

them then left the store and returned to the base in Etzweiler’s

car with Etzweiler driving.

The military judge asked Gosselin to explain specifically

how he introduced the mushrooms onto the base. Gosselin

responded that he got into the car with Etzweiler knowing that

he had mushrooms in his possession and went back onto the base.

He stated that he knew the mushrooms were in the car when they

went onto the base because they made no stops and he did not see

Etzweiler put anything into his mouth. He also told the

military judge that he did not know what Etzweiler intended to

do with the mushrooms, but that later that evening they used

them.

When the military judge asked Gosselin if he was guilty as

an accomplice and was knowingly involved in bringing the

mushrooms onto the base, Gosselin agreed. Gosselin noted that

he could have avoided being a party to the introduction of the

mushrooms onto the installation by telling Etzweiler to get rid

of them, by refusing to accompany him to Maastricht, or by

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reporting to the gate guard that the drugs were in the car. At

that point the military judge recessed the hearing for lunch but

directed the trial counsel and defense counsel “to look at . . .

whether on these facts that the offense of wrongful introduction

is completed.”

Upon return from the recess, the military judge renewed his

questioning of Gosselin in regard to the “introduction” offense.

Gosselin provided additional background facts during this

inquiry and stated that while the two of them were at the Non-

Commissioned Officers Club a few evenings before the trip,

Etzweiler had told him that he wanted to go to Maastricht to

purchase mushrooms. Gosselin did not discuss the proposed

mushroom purchase with Etzweiler further, but told him that he

wanted to go to Maastricht to purchase a dragon statue.

Etzweiler knew that Gosselin had been to that area before and

Gosselin told Etzweiler that he could get him there.

The morning of the trip, Etzweiler asked Gosselin if he was

still up for going and Gosselin said that he was. Gosselin

testified that on the ride to Maastricht they did not talk about

buying mushrooms but “just basically listened to the radio the

whole way up.” Gosselin did not testify that he actually

provided Etzweiler directions during the trip to Maastricht.

In response to further questions from the military judge,

Gosselin repeated his description of their time in Maastricht,

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describing again how he observed Etzweiler purchase what he

believed to be mushrooms while he looked around the shop and how

they then returned to the base. He also repeated that there was

no discussion about the mushrooms on the trip back to the base

and that the decision to use the mushrooms did not occur until

much later that evening after the mushrooms had already been

introduced onto the base.

Following this discussion between Gosselin and the military

judge, the military judge instructed Gosselin on various

theories of accomplice liability. He told Gosselin that if

there was an issue of vicarious liability of a co-conspirator,

he would need to know that there was an agreement or meeting of

the minds between Gosselin and Etzweiler to bring the mushrooms

back on base and that there was an act in furtherance of the

meeting of the minds. If the theory was aiding and abetting,

then the military judge stated he would need to know how it was

that Gosselin encouraged, counseled, commanded, procured, aided

or abetted in some way the commission of the offense. The

military judge stated that he needed Gosselin to “specify it for

me in your own words.” Following this exchange the defense

counsel requested a recess.

Upon returning from this second recess the military judge

asked the defense counsel if he had looked at the issue.

Defense counsel responded that he had and that he could provide

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the military judge with a legal theory. The military judge,

apparently having difficulty finding the requisite facts for a

provident plea, informed the defense counsel, “That would be

helpful.”

The defense counsel informed the military judge that

Gosselin was pleading guilty under an aiding and abetting

theory. He then articulated the facts on which the theory

relied, specifically: Gosselin agreed to go to Maastricht

knowing that Etzweiler intended to purchase mushrooms; Gosselin

did nothing to discourage this; Gosselin indicated he had been

there before and could help navigate; Gosselin did help navigate

on the way there;3 Gosselin voluntarily went into the shop where

he knew Etzweiler intended to purchase the mushrooms; and

Gosselin knew Etzweiler bought the mushrooms and knew they were

in the car and yet Gosselin said nothing to the gate guard when

they entered the base.

The military judge indicated his agreement with defense

counsel’s aiding and abetting theory and stated that Etzweiler

“needed your client’s assistance in being able to get to this

3
Gosselin never admitted that he helped Etzweiler navigate to
Maastricht and the only reference to this in the record came
from the defense counsel.

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place and locate where Maastricht was so he could make this

purchase. So I think that’s a very relevant fact.”

DISCUSSION

Although Gosselin was not the primary actor in the offense

of introducing mushrooms onto Spangdahlem Air Base, he may be

held liable as a principal to the crime if he “aids, abets,

counsels, commands, or procures [its] commission.” Manual for

Courts-Martial, United States pt. IV, para. 1.b.(1) (2005

ed.)(MCM). Gosselin’s defense counsel informed the military

judge that Gosselin was pleading guilty under an aiding and

abetting theory and the military judge accepted the plea on that

basis.

This court has stated that the elements of aiding and

abetting an offense under Article 77, UCMJ, 10 U.S.C. § 877

(2000), are:

(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.

United States v. Pritchett, 31 M.J. 213, 217 (C.M.A. 1990)

(citations omitted). This court has also found:

For an accused to be a principal under Article 77, and thus
to be guilty of the offense committed by the perpetrator,
he must (1) “assist, encourage, advise, instigate, counsel,
command, or procure another to commit, or assist,
encourage, advise, counsel, or command another in the
commission of the offense”; and (2) “share in the criminal

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purpose of design.” Para. 1b(2)(b), Part IV, Manual for
Courts-Martial, United States, 1984.

Our case law has generally interpreted Article 77 to
require an affirmative step on the part of the accused.

United States v. Thompson, 50 M.J. 257, 259 (C.A.A.F. 1999).

If the admissions made by Gosselin at his providence

inquiry do not establish each of the four elements discussed in

Pritchett, we must set aside his guilty plea. See United States

v. Jones, 34 M.J. 270, 272 (C.M.A. 1992). The record

established that Gosselin knew that Etzweiler wanted to go to

Maastricht to purchase mushrooms. Gosselin agreed to accompany

Etzweiler because he wanted to purchase a dragon statute. While

Gosselin told Etzweiler that he could provide directions to

Maastricht, the record is silent as to whether he provided any

assistance. Gosselin knew that Etzweiler purchased mushrooms in

Maastricht and that he put them in the car. Gosselin then rode

back onto Spangdahlem Air Base in Etzweiler’s car with the

mushrooms in the car.4

Although it appears that the military judge struggled to

solicit testimony as to Gosselin’s intent to “share in the

4
Gosselin’s presence in the car, by itself, is not sufficient to
establish guilt. “Mere inactive presence at the scene of the
crime does not establish guilt. . . . The law requires concert
of purpose or the aiding or encouraging of the perpetrator of
the offense and a conscious sharing of his criminal intent.”
United States v. Borroughs, 12 M.J. 380, 382-83 (C.M.A. 1982)
(citations omitted).

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criminal purpose” of introducing the mushrooms onto the base, he

was not successful. Nor does the record reflect that Gosselin

participated in Etzweiler’s act of introducing mushrooms onto

the military installation by taking an affirmative step.

In finding that Gosselin was guilty of aiding and abetting,

the military judge relied on the admission by Gosselin’s defense

counsel that Gosselin helped Etzweiler navigate on the trip to

Maastricht, noting that this was “a very relevant fact.” The

Court of Criminal Appeals conceded that the record was not clear

as to exactly how much navigation assistance Gosselin provided

but noted that it was “obvious he agreed to provide assistance”.

60 M.J. at 771. We find nothing in the record that establishes

that Gosselin provided any navigational assistance. The

statements from his defense counsel that he did so are not

sufficient to establish this fact where Gosselin never

personally adopted those statements.

Furthermore, even if we were to assume that the record

supports the fact that Gosselin provided navigational assistance

to Maastricht, that fact may have established only that Gosselin

provided assistance for the offense of purchasing the mushrooms

under an aiding and abetting theory.5 It does not, however,

translate into an affirmative act for the later separate offense

5
Gosselin was not charged in regard to the purchase of the
mushrooms.

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of introduction of the mushrooms onto the base. There was no

evidence or suggestion that Gosselin assisted Etzweiler in

navigating back to Spangdahlem Air Base and there was no

discussion as to what Etzweiler was planning to do with the

mushrooms.

We note that during the providence inquiry, in responding

to a question from the military judge, Gosselin agreed that he

was guilty as an accomplice because he “was a party” to the

introduction of the drugs onto the military base. Gosselin

further agreed that he was “knowingly involved”, even though he

was not the primary actor. These conclusory responses to the

military judge’s questions regarding his liability as an

accomplice are not sufficient for us to find Gosselin’s plea

provident. Conclusions of law alone do not satisfy the

requirements of Article 45, UCMJ, 10 U.S.C. § 845 (2000), and

Rule for Courts-Martial 910(e). United States v. Jordan, 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.”). This is especially true where, as here,

these responses are not supported by the factual statements made

by Gosselin elsewhere in the providence inquiry.

The Government also argues that Gosselin had a duty to

interfere in the commission of the “introduction” offense and

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his failure to do so makes him a party to the offense. MCM pt.

IV, para. 1.b.(2)(b)(ii) provides:

In some circumstances, inaction may make one liable as a
party, where there is a duty to act. If a person (for
example, a security guard) has a duty to interfere in the
commission of an offense, but does not interfere, that
person is a party to the crime if such a noninterference is
intended to and does operate as an aid or encouragement to
the actual perpetrator.

The military judge, in a conclusory manner, solicited

admissions from Gosselin that he had a duty to interfere and

inform the gate guard that Etzweiler had mushrooms in the car.

Gosselin responds that he held no special position which would

create a duty to interfere nor was he Etzweiler’s supervisor.

We need not determine whether a duty existed in this case

because even if there was a duty, it was not established that

Gosselin’s noninterference was intended to act as aid or

encouragement to Etzweiler. See United States v. McCarthy, 11

C.M.A. 758, 761-62, 29 C.M.R. 574, 577-78 (1960) (noting that to

establish liability for aiding and abetting a crime “it is not

sufficient to demonstrate mere presence at the scene of the

crime” and concluding that where the accused did not take any

affirmative action to assist in the commission of a larceny,

“failure to take affirmative measures to prevent the commission

of the larceny does not in any way establish guilt as a

principal”).

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The providence inquiry failed to establish that Gosselin

intended to facilitate Etzweiler’s introduction of mushrooms

onto a military installation or assisted or participated in the

commission of the offense. See Pritchett, 31 M.J. at 217.

Because we find a “substantial basis in law and fact for

questioning the guilty plea” Specification 4 of the Charge must

be reversed. Milton, 46 M.J. at 318 (quotation marks omitted).

DECISION

The decision of the Air Force Court of Criminal Appeals is

reversed. The finding of guilty of Specification 4 of the

Charge and the sentence are set aside. The record of trial is

returned to the Judge Advocate General of the Air Force for

remand to the Court of Criminal Appeals. That court may either

dismiss Specification 4 of the Charge and reassess the sentence,

or it may order a rehearing.

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CRAWFORD, Judge (dissenting):

Recently the Supreme Court ruled, “[T]he constitutional

prerequisites of a valid plea may be satisfied where the record

accurately reflects that the nature of the charge and the

elements of the crime were explained to the defendant by his

own, competent counsel.” Bradshaw v. Stumpf, 125 S. Ct. 2398,

2405 (2005). In the present case, the record of trial reads:

MJ: I take it that you talked to your attorney about
accomplice liability. In other words even though you
weren’t the one who actually brought them on to the
military installation, that you were a party to that.
Is that why you’re pleading guilty to this offense?

ACC: Yes, Sir.

MJ: Because you were knowingly involved in bringing the
mushrooms on to the base?

ACC: Yes, Sir.

Under the Bradshaw standard, this constitutes a provident plea.

As members of a lower court, we are bound to follow the

precedent set forth by our superior court. The majority fails

to do so today.

FACTS

Prior to their trip to Maastricht, the Netherlands,

Appellant testified that he and Airman Etzweiler met at the

Noncommissioned Officers’ Club and agreed on a trip to

Maastricht because drugs there were one-fourth the cost of what

they were paying in and around the airbase. Appellant knew the
United States v. Gosselin II, No. 05-0255/AF

directions to Maastricht. On the day of the trip, Etzweiler

rendezvoused at Appellant’s room and then drove to Maastricht.

They scouted a number of “head shops” where Etzweiler eventually

purchased psilocybin mushrooms. He placed the drugs in his car,

made no effort to dispose of them, and drove back to the base

with Appellant. Pursuant to their plan, they went back to the

base, picked up their friends at their dormitory rooms, and then

went to the festival where they used the drugs. Prior to the

trip to Maastricht, Appellant admitted that they had used drugs

in the dormitory room on seven or eight occasions. At the oral

argument, appellate defense counsel conceded that the “overt act

for introduction to mushrooms on base would be giving directions

to get the mushrooms in the first place.”

Upon appeal to the Air Force Court of Criminal Appeals,

Appellant challenged the providence inquiry. Specifically,

Appellant argued that he did not admit aiding or abetting the

wrongful introduction of psilocybin mushrooms to an armed forces

installation.

DISCUSSION

Standard of Review

As stated by this Court in United States v. Prater, 32 M.J.

433 (C.M.A. 1991), “rejection of the plea requires that the

record of trial show a ‘substantial basis’ in law and fact for

questioning a guilty plea.” Id. at 436. In considering the

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providence of a guilty plea, this Court has established that the

entire record of the case must be considered. United States v.

Johnson, 42 M.J. 443, 445 (C.A.A.F. 1995).

Therefore, in the present case, the entire trial record

must be examined in order to determine whether there is a

“substantial basis” in law and fact for rejecting this plea.

Brief Summary of Guilty Plea Jurisprudence

An examination of the jurisprudence of guilty pleas must

start with Boykin v. Alabama, 395 U.S. 238 (1969). The Court in

Boykin ruled, “a guilty plea is more than an admission of

conduct; it is a conviction.” Id. at 242. Furthermore, the

Court indicated that because a guilty plea involves the waiver

of three constitutional rights, it should be treated in the same

manner as the Court treated the waiver of the right to counsel.

As the Court noted, “Presuming waiver from a silent record is

impermissible. The record must show, or there must be an

allegation and evidence which show, that an accused was offered

counsel but intelligently and understandingly rejected the

offer. Anything less is not waiver.” Id. (quoting Carnley v.

Cochran, 369 U.S. 506, 516 (1962)). In other words, there must

be evidence on the record of a guilty plea for that plea to be

valid.

This Court adopted the Boykin rule into the military

justice system in United States v. Care, 18 C.M.A. 535, 40

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C.M.R. 247 (1969). In Care, this Court determined the necessary

elements for a voluntary guilty plea:

In any event, the record of trial . . . must reflect
not only that the elements of each offense charged
have been explained to the accused but also that the
military trial judge or the president has questioned
the accused about what he did or did not do, and what
he intended (where this is pertinent), to make the
basis for a determination by the military trial judge
or president whether the acts or omissions of the
accused constitute the offense or offense to which he
is pleading guilty. . . .

Further, the record must also demonstrate the military
trial judge or president personally addressed the
accused, advised him that his plea waives his right
against self-incrimination, his right to trial of the
facts by court-martial, and his right to be confronted
by the witnesses against him; and that he waives such
rights by his plea.

18 C.M.A. at 541, 40 C.M.R. at 253 (citations omitted). Care

expands upon the federal standard by requiring military judges

to explain more than fifteen items to the accused.∗

The Care decision was codified in Rule for Courts-Martial

(R.C.M.) 910. In particular, R.C.M. 910(c) reads, “Before

accepting a plea of guilty, the military judge shall address the

accused personally and inform the accused of, and determine that

the accused understands, the following. . .” The rule goes on

to list things that must be reflected on the record, including

the nature of the offense, the maximum and minimum penalties,

∗
United States v. Watruba, 35 M.J. 488, 495 n.4 (C.M.A.
1992)(Crawford, J., dissenting).

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the associated waiver of rights, and the offense itself. Id.

There is little doubt that the drafters of the R.C.M. intended

the Care requirements to be incorporated into the rules. Care

is cited extensively in the analysis of R.C.M. 910(c) and R.C.M.

910(e). Manual for Courts-Martial, United States, Analysis of

Rules for Courts-Martial app. 21 at A21-59 to A21-60 (2005 ed.).

There is ample support for the proposition that once a rule

of case law is adopted by Congress or is promulgated by the

President, it is “codified” and that the codified iteration of

the rule supplants the original case law. United States v.

Lopez, 35 M.J. 35 (C.M.A. 1992). Once the President creates a

rule, unless it is unconstitutional, this Court is bound to

follow it. United States v. Scheffer, 523 U.S. 303 (1998). In

United States v. Kossman, 38 M.J. 258 (C.M.A. 1993), this Court

ruled on the fate of United States v. Burton, 21 C.M.A. 112, 44

C.M.R. 166 (1971), a speedy trial decision that created a

procedural rule where none had existed. In Kossman, this Court

decided that in the wake of the adoption of R.C.M. 707, “we

reiterate that the Burton presumption was court-made and

declared in a procedural vacuum, without the benefit of

presidential input. Just as we created it, we now reconsider

it. Burton and Driver are hereby overruled.” 38 M.J. 258, 261

(C.M.A. 1993). Likewise, because R.C.M. 910 is the codification

of Care, it supersedes Care and is the primary authority for

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examining guilty pleas. Subsequent case law should be used to

interpret R.C.M. 910.

The latest decision that has had an impact on guilty plea

jurisprudence is the aforementioned Bradshaw v. Stumpf. In

Bradshaw, the Supreme Court ruled, “[T]he constitutional

prerequisites of a valid plea may be satisfied where the record

accurately reflects that the nature of the charge and the

elements of the crime were explained to the defendant by his

own, competent counsel.” 125 S. Ct. at 2405. Thus, Bradshaw

directly resolves the issue presented before us. Appellant

admits on the record that he was a party to the offense because

he was knowingly involved in bringing the mushrooms onto the

base, which is all the Constitution requires according to this

latest decision.

The admissions of guilt by Appellant’s trial defense

counsel also support the providence of the plea. Bradshaw

holds, “Where a defendant is represented by competent counsel,

the court usually may rely on that counsel’s assurance that the

defendant has been properly informed of the nature and elements

of the charge to which he is pleading guilty.” Id. at 2406.

During the providence inquiry, the military judge gave a

detailed instruction regarding aiding and abetting and recessed

the court specifically to allow Appellant to confer with

counsel:

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MJ: So I know I’ve instructed you on quite a bit
there. I’m going to give you an opportunity to talk
to your counsel. . . . If the theory is aiding and
abetting, then I need to know from you specifically
how it is that you did one of those things I
instructed you on which is to encourage, counsel,
command or procure, aid or abet in some way the
commission of the offense. . . . When another person
knowingly encourages the criminal by his presence and
shares in a criminal purpose or activity, then that
other person becomes criminally involved. So did you
share the criminal intent of bringing the mushrooms
back on the base?

After returning from recess, Appellant’s trial defense counsel

made these statements on his behalf:

DC: I’ve talked to my client. I can tell you the
theory.

MJ: Okay. That would be helpful.

DC: Basically my client is guilty on the aiding
theory. You were asking what act did he do to
encourage the introduction.

MJ: Right.

DC: Well there’s a few acts basically, Sir. . . . He
knew what he was going for. . . . So he was going to
help navigate the car. In fact he did navigate to get
to Maastricht for the purpose of Etzweiler to buy
drugs . . . .

In light of the holding in Bradshaw, the military judge properly

relied on these statements by Appellant’s trial defense counsel

in finding the guilty plea provident.

The holding in Bradshaw has already been cited in similar

cases. For example, in United States v. Kappell, 418 F.3d 550

(6th Cir. 2005), the court upheld a no-contest plea where the

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facts constituting the basis of the plea were not read into the

trial record because defense counsel stated that the defendant

understood them sufficiently. Id. at 560. See also United

States v. McGlocklin, 8 F.3d 1037, 1047 (6th Cir. 1993) (nolo

contendere plea upheld based on defendant’s testimony that his

counsel had explained the charge and that defendant had

understood); Riggins v. McMackin, 935 F.2d 790 (6th Cir. 1991)

(plea information may be obtained from counsel rather than the

trial judge); Pitts v. United States, 763 F.2d 197 (6th Cir.

1985) (citing numerous other cases court held that information

as to rights and voluntariness of the plea may be relayed by

counsel rather than the trial judge); George v. United States,

633 F.2d 1299, 1301 (9th Cir. 1980) (in upholding plea, court

found appellant had been informed of his constitutional right by

defense counsel rather than the trial judge). Cf. Loving v.

United States, 62 M.J. 235, 237 nn.7 & 9 (C.A.A.F. 2005)

(discussing substantive application of Apprendi v. New Jersey,

530 U.S. 466 (2000). The present case presents a similar set of

facts. Considering the technical legal language of the

statement made by Appellant’s trial defense counsel concerning

the distinction between aiding and abetting and co-conspirator

vicarious liability, it is not unreasonable that trial defense

counsel spoke on behalf of Appellant.

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The Bradshaw ruling was based on a case in civilian

criminal court. Judges in civilian criminal courts are charged

with ensuring that a plea is voluntary by Fed. R. Crim. P.

11(b)(2). The rule states, “Before accepting a plea of guilty

. . . the court must address the defendant personally in open

court and determine that the plea is voluntary . . .” (emphasis

added). This language was altered to conform to the Supreme

Court’s decision in Boykin, 395 U.S. at 244, where the Supreme

Court ruled that, when accepting a guilty plea, a judge must

question the defendant on the record so that “he leaves a record

adequate for any review that may be later sought.” Prior to

Boykin, Fed. R. Crim. P. 11 only required that the plea was

made, “with understanding of the nature of the charge and the

consequences of the plea.” Fed. R. Crim. P. 11 advisory

committee’s note (on 1974 amendments). The post-Boykin

alteration of the civilian rule parallels a similar change in

the military rules.

The corresponding military rule is R.C.M. 910(d), which

reads, “The military judge shall not accept a plea of guilty

without first, by addressing the accused personally, determining

that the plea is voluntary . . .” (emphasis added). As noted

above, R.C.M. 910 is the codification of the ruling by this

Court in Care adopting the Supreme Court’s decision in Boykin.

Fed. R. Crim. P. 11 and R.C.M. 910 contain similar language,

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including the word “personally,” because both were crafted to

adopt the Boykin decision. Therefore, just as Bradshaw

interprets Fed. R. Crim. P. 11, it also can be used to interpret

R.C.M. 910.

The majority has previously discounted the Bradshaw

decision, implicating the narrowed standards of federal habeas

corpus review. See United States v. Aleman, 62 M.J. 281, 284

n.1 (C.A.A.F. 2006). However, these review standards rarely

prevent courts from following the substantive law generated by

habeas cases from the Supreme Court. E.g., Kyles v. Whitley,

514 U.S. 419, (1995) (interpreting Brady v. Maryland, 373 U.S.

83 (1963), as requiring a reasonable probability of a different

result to be a violation); Manson v. Brathwaite, 432 U.S. 98

(1977) (interpreting Stovall v. Denno, 388 U.S. 293 (1967), and

concluding that reliability, the key factor in identification

testimony, is examined under the totality of the circumstances);

Stovall, 388 U.S. at 298-301 (rule excluding identification of

suspect without counsel is not retroactive); Gideon v.

Wainwright, 372 U.S. 335 (1963) (Fourteenth Amendment applies

the Sixth Amendment right to counsel to states who must provide

attorneys to indigent defendants).

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Legal Analysis –- Providence of Guilty Plea

Under R.C.M. 910, a military judge cannot accept a guilty

plea from an accused unless it is determined to be voluntary.

R.C.M. 910(d). As interpreted by this Court, this requires:

[T]he accused must answer questions under oath in the
presence of counsel that satisfy the judge that the
plea is provident. RCM 910 (d) and (e). The judge
also must determine that the plea of guilty results
from the accused’s own willingness to plead guilty and
that he has not been coerced in any way.

United States v. Nelson, 51 M.J. 399, 400 (C.A.A.F. 1999). A

careful examination of the trial record shows that the military

judge fulfilled his duty during Appellant’s providence inquiry.

Article 77, Uniform Code of Military Justice (UCMJ) (10

U.S.C. § 877 (2000), defines a “principal” as “Any person

punishable under this chapter who . . . commits an offense . . .

or aids, abets, counsels, commands, or procures its commission.”

(citations omitted.) The Manual for Courts-Martial, United

States (2005 ed.)(MCM) further states the two elements necessary

to be held liable for aiding and abetting a crime: “(i) Assist,

encourage, advise, instigate, counsel, command or procure . . .

another in the commission of the offense; and (ii) Share in the

criminal purpose of design.” MCM pt. IV, para. 1.b.(2)(b)(i)-

(ii).

This Court has further clarified the requirements for

aiding and abetting the wrongful introduction of controlled

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substances to military installations in United States v.

Knudson, 14 M.J. 13 (C.M.A. 1982). In Knudson, the Court stated

that, “All that is necessary is to show some affirmative

participation which at least encourages the principal to commit

the offense in all its elements as defined by the statute.” Id.

at 15. In Knudson, the appellant was found guilty of aiding and

abetting the wrongful introduction of lysergic acid diethylamide

(LSD) onto a military installation. The appellant aided and

abetted simply by informing a buyer that the seller still had

the drugs and providing a pen and paper for the buyer to leave a

note to the seller. Id. at 14. The actions by Appellant in the

present case are no less culpable.

Element I –- The Act

Mere presence at the scene of a crime does not make one an

aider and abettor. MCM pt. IV, para. 1.b.(3)(b). This Court

has recognized that presence with prior knowledge of the

principal’s intent to commit a crime is insufficient to

establish accomplice liability. United States v. Burroughs, 12

M.J. 380 (C.M.A. 1982). However, in this case, merely examining

presence and prior knowledge does not constitute a complete

analysis.

The effect of the presence on the principal must also be

examined. Courts have found that, under some circumstances,

presence at a crime can be considered encouragement sufficient

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to constitute aiding and abetting. United States v. Dunn, 27

M.J. 624, 625 (A.F.C.M.R. 1988). In Dunn, the appellant was

found guilty of aiding and abetting a theft because his presence

at the crime knowingly encouraged the principal and he shared in

the criminal purpose. Id. The facts in the present case

likewise show encouragement by presence. The evening prior to

the trip to Maastricht, Appellant testified that Airman

Etzweiler approached him regarding the trip

ACC: It was something along the lines of like well
I’m going up to Maastricht tomorrow. I don’t have
anybody else to go with. He knew I had been up to
Eindhoven which is on the same autobahn . . . . So I
told him I could get him there and told him I know the
direction and all that.

Airman Etzweiler was seeking company on his trip to Maastricht,

specifically company that could direct him to Maastricht, where

the drugs were. Appellant’s statement concerning “get[ting] him

there” is an admission to the overt act necessary to aiding and

abetting. Whether or not Appellant actually gave Airman

Etzweiler directions is immaterial; his presence, as someone who

could navigate to Maastricht, is encouragement.

Furthermore, Appellant’s defense counsel admitted that

accompanying Airman Etzweiler to Maastricht was sufficient to

constitute an overt action by Appellant for the purposes of

aiding and abetting. During oral argument, Appellant’s defense

counsel was asked three times about this matter by two different

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judges of this Court. At one point, Appellant’s defense counsel

emphatically responded to these inquiries stating, “And we would

concede that an overt act for introduction to mushrooms on base

would be giving directions to getting the mushrooms in the first

place.” The majority ignores this concession.

Element II -- Intent

Appellant’s intent can be inferred from the facts and

circumstances of the case. United States v. Speer, 36 M.J. 997,

1001 (A.C.M.R. 1993). The case before us is rich in facts

supporting an inference of shared intent on behalf of Appellant.

Appellant knew one of the stated purposes of the trip to

Maastricht was to purchase psilocybin mushrooms. Appellant

accompanied Airman Etzweiler into a third “head shop” after he

had completed his stated purpose for the trip to Maastricht

(buying the dragon statue) and witnessed the actual purchase.

These facts support an inference of Appellant’s intent to see

the crime carried out.

Additionally, Appellant made no effort to prevent the

purchase or introduction of the psilocybin mushrooms onto the

base. This inaction can be used against Appellant to infer a

shared intent. In United States v. Deason, 3 C.M.R. 391, 394

(A.B.R. 1952), the court stated:

[I]f the proof shows that a person is present at the
commission of a crime without disapproving or opposing
it, it is competent for the jury to consider this

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conduct, in connection with other circumstances and
thereby reach the conclusion that he assented to the
commission of the crime, lent his countenance and
approval and was thereby aiding and betting the same.

Thus, Appellant’s silence at the Spangdahlem entry gate can be

used to infer a shared criminal intent on his part.

This Court has recognized that subsequent acts may also be

used to infer prior intent. United States v. Barrett, 3 C.M.A.

294, 12 C.M.R. 50 (1953). In Barrett, this Court ruled that

“Certainly an intent existing at a particular time can be

inferred from other acts transpiring either before or after.” 3

C.M.A. at 297, 12 C.M.R. at 53. This principal has been

consistently upheld and recognized. United States v. Pugh, 38

C.M.R. 541, 543 (A.B.R. 1967); United States v. Miller, 33

C.M.R. 563, 565-66 (A.B.R. 1963); United States v. Goad, 16

C.M.R 886, 893 (A.F.B.R 1954). Applied to this case, intent to

introduce the psilocybin mushrooms may be inferred by

Appellant’s use of those very mushrooms later that day in Trier,

Germany, and again soon thereafter on Spangdahlem Air Force

Base. Furthermore, both instances of use were with Airman

Etzweiler. The subsequent use of the same psilocybin mushrooms

introduced to Spangdahlem by Airman Etzweiler and Appellant

support an inference of Appellant’s prior intent.

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CONCLUSION

The military judge in this case conducted an extensive

providence inquiry. Over twenty pages of the record demonstrate

the military judge took great care to fulfill constitutional and

procedural standards in his inquiry. I am satisfied that these

standards have been met under the latest Supreme Court precedent

and would affirm the decision of the court below. For the

foregoing reasons, I respectfully dissent.

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