TRIAL STAGES: Merits: Guilty Pleas:

United States v. Rose, 71 M.J. 138 (the entry of a guilty plea is a critical stage of the litigation, where a criminal defendant is entitled to effective assistance of counsel). 

United States v. Watson, 71 M.J. 54 (a court must find a substantial conflict between the plea and the accused’s statements or other evidence in order to set aside a guilty plea; the mere possibility of a conflict is not sufficient).    

(in this case, during his guilty plea to fraudulent enlistment, appellant stated in a stipulation of fact that information regarding his psychiatric treatment history was a waivable disqualification, but later stated that it could have potentially disqualified him from enlisting; also, during the plea colloquy, appellant stated that he assumed that his treatment history would be a disqualifying factor or one that would severely hinder his chances of enlistment, but later stated that he believed that it may have impacted his ability to enlist; any inconsistencies in appellant’s stipulation of fact or plea colloquy when he pleaded guilty to fraudulent enlistment did not amount to a substantial conflict requiring further inquiries). 

(if an accused’s admissions in the plea inquiry do not establish each of the elements of the charged offense, the guilty plea must be set aside).

United States v. Ballan, 71 M.J. 28 (in the context of a specification that was legally sufficient at the time of trial and to which a plea of guilty was entered and accepted, no prejudice is found and the providence of a plea will not be disturbed where the providence inquiry clearly delineates each element of the offense and shows that the appellant understood to what offense and under what legal theory he was pleading guilty, even if that specification is later determined to fail to allege an element of the offense because of intervening changes in the law). 

(a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case). 

(a military judge may not accept a plea of guilty until the elements of each offense charged have been explained to the accused and unless the military judge has questioned the accused to ensure that he understands and agrees that the acts or the omissions constitute the offense or offenses to which he is pleading guilty). 

(the guilty plea process within the military justice system ensures that an appellant has notice of the offense of which he may be convicted and all elements thereof before his plea is accepted and, moreover, protects him against double jeopardy). 

(while it was error in a retroactive sense to accept a plea of guilty to an Article 134, UCMJ, charge and specification, which did not explicitly or by necessary implication contain the terminal element, under the facts of this case, the showing of error alone was insufficient to show prejudice to a substantial right, where during the plea colloquy, the military judge described clauses 1 and 2 of the terminal element of Article 134, UCMJ, for each specification, the record conspicuously reflected that appellant clearly understood the nature of the prohibited conduct as being in violation of clause 1 or clause 2, and appellant admitted that his actions were service discrediting in violation of clause 2). 

United States v. Hayes, 70 M.J. 454 (Article 45, UCMJ, includes procedural requirements to ensure that military judges make sufficient inquiry to determine that an accused’s plea is knowing and voluntary, satisfies the elements of charged offenses, and more generally that there is not a basis in law or fact to reject the plea; specifically, if an accused after arraignment makes in irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty). 

(consistent with Article 45, UCMJ, if an accused sets up matter inconsistent with a guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea; a military judge who fails to do so has abused his or her discretion).

(the threshold for determining when additional inquiry is required when a matter is raised that potentially offers the accused a defense to a guilty plea is the possible defense standard; an accused is not required to present a prima facie defense before the threshold for further inquiry is met; the possible defense standard is intended to serve as a lower threshold than a prima facie showing because it is intended as a trigger to prompt further inquiry pursuant to Article 45, UCMJ, and United States v. Care, 18 CMA 535, 40 CMR 247 (1969), not to determine whether the defense is available or whether members in a contested case should be given an instruction; adherence to the possible defense standard also furthers Congress’s intent behind Article 45, UCMJ, to ensure the acceptance of a guilty plea be accompanied by certain safeguards to insure the providence of the plea, including a delineation of the elements of the offense charged and an admission of factual guilt on the record). 

(an affirmative defense to a charged offense would, by definition, constitute a matter inconsistent with the plea of guilty and therefore the military judge must resolve the apparent inconsistency or reject the plea). 

(not every mitigating statement or word during a guilty plea requires further inquiry; thus, a military judge is not required to reopen a plea and inquire further where an accused raises the mere possibility of a defense). 

(even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obliged to make further inquiry to resolve any apparent ambiguity or inconsistency). 

United States v. Goodman, 70 M.J. 396 (during a guilty plea inquiry, the accused must establish not only that he believes he is guilty but also that the factual circumstances support that plea). 

(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; to rise to the level of inconsistency contemplated by Article 45(a), UCMJ, matters raised at trial must have reasonably raised the question of a defense or must have been inconsistent with the plea in some respect).

(appellant’s testimony during the guilty plea inquiry that he subjectively believed that his sexual comments to the victim were welcome did not raise a mistake of fact defense or an inconsistency with regard to his guilty plea, and there was no substantial basis in either law or fact to question the plea, where nothing in the record supported the reasonableness of such a belief; appellant, who outranked the victim and was tasked with in-processing her into her new unit, admitted that, despite his previous training on sexual harassment, he initiated the sexual banter in response to the victim’s attempts at being friendly, and he admitted that his comments created a very hostile work environment that made it difficult for the victim to perform her duties; appellant knew his comments were likely to bring offense, and he made them deliberately, in an attempt to find a woman who would be willing to engage in sex with him). 

(the fundamental requirement of plea inquiry under Care and RCM 910 involves a dialogue in which the military judge poses questions about the nature of the offense and the accused provides answers that describe his personal understanding of the criminality of his or her conduct; a discussion between the trial counsel and the military judge about legal theory and practice, at which the accused is a mere bystander, provides no substitute for the requisite interchange between the military judge and the accused).

(appellant’s guilty plea to the offense of consensual sodomy was improvident where the military judge described the offense of sodomy solely in terms of the definition of the offense set forth in the MCM and appellant merely described the nature of the sexual conduct between himself and the other party to the sexual act, but the inquiry failed to reflect consideration of the appropriate framework for distinguishing between conduct constitutionally protected and conduct that may be prosecuted criminally under Article 125 as set forth in United States v. Marcum, 60 MJ 198 (CAAF 2006); although in response to the questions from the military judge, appellant stated that the incident took place on board a military facility, that the other participant in the sexual activity was a servicemember assigned to the same ship as appellant, and that a third servicemember was present and asleep in the room at the time of the charged act of sodomy, the military judge failed to explain to appellant the significance of the questions, nor did the military judge ask appellant whether he understood the relationship of the questions and answers to the distinction between constitutionally protected behavior and criminal conduct; in the absence of a dialogue employing lay terminology to establish an understanding by the accused as to the relationship between the supplemental questions and the issue of criminality, appellant’s plea was not provident). 

United States v. Flores, 69 M.J. 366 (in a guilty plea context, a military judge who has advised an accused that she is waiving her right against self-incrimination only to those offenses to which she is pleading guilty cannot later rely on those statements as proof of a separate offense; to do so would compel an accused to incriminate herself in the separate criminal proceeding). 

(a guilty plea and related statements to one offense cannot be admitted to prove any element of a separate offense; however, this prohibition does not apply when using a plea to a lesser included offense to prove a common fact or element of a greater offense).

United States v. Soto, 69 M.J. 304 (a plea of guilty is more than an admission of guilt - it is the waiver of bedrock constitutional rights and privileges; under controlling Supreme Court precedent, it is, therefore, constitutionally required under the Due Process Clause of the Fifth Amendment that a judge ensure that a guilty plea be entered into knowingly and voluntarily; it is axiomatic that the military justice system imposes even stricter standards on military judges with respect to guilty pleas than those imposed on federal civilian judges).    

(in order to ensure that pleas of guilty are not only knowing and voluntary but appear to be so, detailed procedural rules govern the military judge’s duties with respect to the plea inquiry; the military judge must ensure there is a basis in law and fact to support the plea to the offense charged).

(as part and parcel of the providence of an accused’s guilty plea, the military judge shall inquire to ensure that the accused understands the pretrial agreement, and that the parties agree to the terms of the agreement; this is necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty). 

(it is the military judge’s responsibility to police the terms of pretrial agreements to insure compliance with statutory and decisional law as well as adherence to basic notions of fundamental fairness; it is for this reason that the RCM 910(f)(3) requires that the military judge shall require disclosure of the entire agreement excepting the quantum limitations before accepting a plea of guilty; further, as required by RCM 910(h)(3), after the sentence is announced, the military judge shall both inquire into any parts of the PTA not previously examined and ensure that an accused understands all material terms; an inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the agreement is error). 

(military judges need to be ever vigilant in fulfilling their responsibility to scrutinize pretrial agreement provisions to ensure that they are consistent with statutory and decisional rules, and basic notions of fundamental fairness). 

(a fundamental principle on pretrial agreements is that the agreement cannot transform the trial into an empty ritual; judicial scrutiny of PTA provisions at the trial level helps to ensure that this principle is fulfilled).

(not every procedural failure in reviewing a pretrial agreement results in an improvident plea). 

(in this case, a provision in the pretrial agreement required that appellant request a BCD during the sentencing phase of the court-martial; this provision was placed in the quantum portion of the PTA, notwithstanding the fact that it was not a quantum limitation on the sentence; the provision was neither disclosed to the military judge prior to his accepting appellant’s plea of guilty (although the military judge specifically asked whether there were any conditions in the quantum portion), nor was it discussed with appellant before, during, or after the providence inquiry; examining the quantum portion of the agreement after the announcement of sentence, the military judge did not acknowledge the term requiring appellant to request a punitive discharge during sentencing, let alone discuss it with appellant; where the provision in question is one that goes directly to the sentence requested by an accused and imposed by the military judge, the provision is tucked away in the quantum portion of the PTA (although it is not a sentence limitation), and the parties fail to disclose the provision in response to a direct question by the military judge, the integrity of the guilty plea process itself is undermined; under the facts and circumstances of this case, it appears that the military judge was unaware that appellant’s request for a BCD was required by the PTA; thus, it cannot be said that the request did not influence the sentence imposed; under the particular facts of this case, there is a substantial basis in law to question the providence of appellant’s plea and the plea inquiry was improvident). 

(in accordance with RCM 701(g)(1), the military judge may specify the time, place, and manner of making discovery and may prescribe such terms and conditions as are just; thus, it could be within the military judge’s discretion to deny a mid-providence request to stop the trial for an accused to review evidence).

(an unconditional guilty plea which results in a finding of guilty waives any objection, whether or not previously raised, insofar as the objection relates to the factual issue of guilt of the offenses to which the plea was made; the point is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case). 

(an unconditional guilty plea generally waives all pretrial and trial defects that are not jurisdictional or a deprivation of due process of law). 

(appellant’s unconditional guilty plea to receiving child pornography waived any issues related to the military judge’s denial of his pretrial and mid-providence requests to view the child pornography, where the denial neither implicated due process rights nor resulted in the loss of appellant’s pretrial agreement). 

(during a guilty plea inquiry the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it; in determining whether a guilty plea is provident, the military judge may consider the facts contained in the stipulation of fact along with the inquiry of appellant on the record). 

(in this case, the providence inquiry provided a sufficient factual basis for the military judge to accept appellant’s guilty plea to receiving child pornography, where (1) the detailed stipulation of fact described how appellant searched for, accessed, viewed, and saved the pornographic images, and why he believed the images depicted children, ranging from ten to seventeen, some in lascivious poses, and some of which included girls performing a sexual act with an adult, (2) appellant testified that he had read the stipulation and that everything contained in the stipulation was the truth, and (3) appellant’s statements during the providence inquiry were consistent with the stipulation of fact, raised no matters inconsistent with his guilty pleas, demonstrated that he was convinced of his guilt, and he was able to describe all the facts necessary to establish guilt, including adequate descriptions of the pornographic images at issue; no substantial basis in law or fact was raised for the military judge to reject the plea).  

(an accused may choose, with convening authority approval, to plead guilty to any amended specification as long as the plea inquiry establishes that such a plea is knowing and voluntary and the plea is accepted by the military judge). 

(in cases where offenses are pleaded for exigencies of proof, depending on what the plea inquiry reveals or of which offense the accused is ultimately found guilty, the military judge may properly accept the plea and dismiss the remaining offense).

United States v. Ferguson, 68 M.J. 431 (a military judge may not accept a guilty plea if it is irregular, the accused sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect; the term improvident means heedless, unwary, not circumspect; the term has also been defined as of or relating to a judgment arrived at by using misleading information or a mistaken assumption; to prevent the acceptance of improvident pleas, the military judge is required to make such inquiry of the accused as shall satisfy the military judge that there is a factual basis for the plea).

(by pleading guilty, an accused does more than admit that he committed the various acts alleged in a specification; he is admitting guilt of a substantive crime).

(appellant’s unconditional guilty pleas waived the issue of whether the specifications charging appellant with receipt and possession of the same child pornography were multiplicious, where the specifications were not facially duplicative because appellant received the files of the images on one medium and stored them on another). 

United States v. Campbell, 68 M.J. 217 (by pleading guilty, an accused does more than admit that he did the various acts alleged in a specification; he is admitting guilt of a substantive crime). 

United States v. Smead, 68 M.J. 44 (the military judge shall not accept a plea of guilty without first determining that the plea is voluntary). 

(in this case, the record did not raise a substantial question regarding the voluntariness of appellant’s plea, where despite the erroneous reinstatement at the rehearing of charges dismissed with prejudice pursuant to a PTA in appellant’s first court-martial, appellant did not assert at the rehearing that revival of the charges would compromise his ability to make a voluntary decision with respect to pleas or a plea agreement, the reinstated charges to which appellant pleaded not guilty were again withdrawn with prejudice at the rehearing, appellant’s second PTA contained generally more favorable terms than his original PTA, and appellant told the military judge during the providence inquiry that he had voluntarily entered in to the plea agreement). 

United States v. Nance, 67 M.J. 362 (Article 45(a), UCMJ, 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, the military judge has a duty 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; if the military judge fails to establish that there is an adequate basis in law and fact to support the accused’s plea during the providence inquiry, the plea will be improvident). 

(in a guilty plea to wrongful use of coricidin cough and cold medicine as conduct prejudicial to good order and discipline under Article 134, UCMJ, the factual circumstances as revealed by the accused himself objectively supported his plea where appellant admitted that he repeatedly gathered with other airmen to abuse the medicine with the intent of getting high and that this conduct would affect military readiness; in a stipulation of fact, appellant admitted that he met on five occasions with four fellow airmen, including one of lower rank, and one enlisted member of the U.S. Army to abuse the medicine with the intent to become intoxicated, and that in addition to making him high, abusing the medicine impaired his motor skills and sometimes made him 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 the medicine; these facts legally and factually supported the prejudicial to good order and discipline element of the charged violation of Article 134, UCMJ). 

(although the use of leading questions that do no more than elicit “yes” and “no” responses during the providence inquiry is disfavored, a military judge’s use of leading questions does not automatically result in an improvident plea; rather, the totality of the circumstances of the providence inquiry are examined, 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). 

(in this case, the military judge’s use of leading questions during the providence inquiry did not transform what would otherwise be a provident plea to a charge of conduct prejudicial to good order and discipline with a sufficient basis in law and fact into an improvident one, where the military judge only used leading questions to amplify three points that had already been established on the record, the objective facts set forth in the stipulation of fact, the objective facts already elicited from appellant earlier in the plea inquiry, and appellant’s explicit agreement that his conduct was prejudicial to good order and discipline in the armed forces). 

(during the providence inquiry, the military judge is required to elicit from the accused factual circumstances that objectively support each element of the charged offense to which a plea is entered; 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). 

United States v. Riddle, 67 M.J. 335 (if, during the proceedings, the accused sets up matter inconsistent with the plea, it is the responsibility of the military judge to either resolve the inconsistency or reject the plea).   

(where an offense is a lesser included offense of the charged offense, an accused is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty).

(an accused has a right to know to what offense and under what legal theory he or she is pleading guilty; this fair notice resides at the heart of the plea inquiry; the providence of a plea is based not only on the accused’s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts). 

(rejection of a guilty plea requires that the record of trial show a substantial basis in law or fact for questioning the plea).

(in this case, the accused’s statement during the plea inquiry that he shoved his wife, who was holding a broken stem from a stemware glass, because he wanted her out of his face with the glass did not provide a substantial basis in law and fact for rejecting the accused’s guilty plea to involuntary manslaughter of his wife; after reviewing the elements of the offenses with the accused, the military judge recognized the “possibility” of the defense of self-defense resulting from the argument between the accused and his wife and properly asked a number of questions to determine whether the defense was raised; in the end, there was no substantial conflict with the plea and there were no unresolved questions that would require the military judge to explain the elements of the defense to the accused; the accused’s responses to the military judge were unambiguous -- he did not feel threatened by his wife; he did not apprehend, reasonably or otherwise, imminent bodily harm; and he harbored no belief that shoving his wife was necessary for his own protection; the record reflects that the possibility of self-defense was resolved by this inquiry, and there was no substantial basis in law or fact for rejecting the plea).   2008 (Transition)

United States v. Medina, 66 M.J. 21 (the providence of a guilty plea is based not only on the accused’s understanding and recitation of the factual history of the crime, but also on an understanding of how the law relates to those facts). 

(a voluntary and knowing relinquishment of the constitutional rights an accused waives in pleading guilty is not possible without knowledge of the nature of the charges brought against him or her, including by implication any applicable lesser included offenses). 

(for the purposes of a guilty plea under Article 134, UCMJ, it is important for the accused to know whether he or she is pleading only to a crime or offense not capital under clause 3, a disorder or neglect under clause 1, conduct proscribed under clause 2, or all three; as a result, while it is appropriate for an appellate court to affirm a lesser included offense, an accused has a right to know to what offense and under what legal theory he or she is pleading guilty; this fair notice resides at the heart of the plea inquiry). 

(where an offense is a lesser included offense of the charged offense to which appellant pleaded guilty, appellant is by definition on notice because it is a subset of the greater offense alleged; however, where a distinct offense is not inherently a lesser included offense, during the guilty plea inquiry, the military judge or the charge sheet must make the accused aware of any alternative theory of guilt to which he is by implication pleading guilty). 

(an accused must know to what offenses he is pleading guilty). 

(with respect to Article 134, UCMJ, given its structure and elements, an accused must also know under what clause he is pleading guilty; this is accomplished either through advice by the military judge or through operation of the lesser included offense doctrine). 

(in this case, appellant’s guilty pleas to clause 3 child pornography offenses under Article 134, UCMJ, were not knowing and voluntary to lesser offenses under clause 2 where appellant was not advised during the plea inquiry that in addition to pleading guilty to clause 3 offenses, he was by implication also pleading guilty to clause 2 offenses not charged or otherwise included in the specifications as drafted; although appellant admitted to service discrediting conduct in the context of pleading guilty to violations of clause 3, he did so without knowledge that in pleading guilty to clause 3 offenses, he was not required to plead guilty to service discrediting conduct under clause 2; it bears emphasis that this is a question about the knowing and voluntary nature of the plea and not the adequacy of the factual basis supporting the plea).  

United States v. Inabinette, 66 M.J. 320 (a military judge abuses his discretion if he accepts a guilty plea without an adequate factual basis to support the plea - an area in which an appellate court affords the judge significant deference; additionally, any ruling based on an erroneous view of the law also constitutes an abuse of discretion). 

(during a guilty plea inquiry, the military judge is charged with determining whether there is an adequate basis in law and fact to support the plea before accepting it). 

(in this case, the military judge did not abuse his discretion in concluding that appellant’s guilty pleas remained provident despite potentially contradictory testimony from a forensic psychiatrist who testified for appellant during sentencing that he suffered from bipolar disorder with psychotic features, but that there was no indication that he did not appreciate the wrongfulness of his actions at the time of the offenses, where the judge inquired into appellant’s mental condition following the psychiatrist’s testimony and addressed the potential inconsistency in that testimony regarding appellant’s mental responsibility at the time of the offenses and he did so against a backdrop of consistent RCM 706 boards that found the likelihood that appellant was unable to appreciated the nature and wrongfulness of his behavior as statistically improbable). 

United States v. Dacus, 66 M.J. 235 (if an accused sets up a matter inconsistent with his plea at any time during a proceeding on the plea, the military judge must either resolve the apparent inconsistency or reject the plea). 

(statements made by appellant during the providence inquiry that he wore a condom with one woman and barely penetrated her and evidence he introduced at sentencing that due to his low viral load, the risk of his transmitting HIV was extremely low were not in substantial conflict with his pleas of guilty to two specifications of aggravated assault based on his having sexual intercourse with two women without informing them of his HIV-positive status; despite appellant’s claim that his statements and the sentencing evidence substantially conflicted with the risk and magnitude prongs of the likelihood element of aggravated assault, the record revealed no conflict; first, as to the magnitude of harm, both appellant’s statements and his sentencing evidence confirmed that if HIV were transmitted by sexual intercourse, death or grievous bodily harm was a natural and probable consequence; and second, although the risk of transmitting the virus was low on account of appellant’s low viral load and therefore arguably “remote,” the risk was certainly more than fanciful or speculative, as both appellant’s statements and the sentencing evidence confirmed that transmission of the virus during sexual intercourse was possible, even if a condom were worn; the likelihood of death or grievous bodily harm is determined by measuring both prongs, not just the statistical risk of harm; where the magnitude of the harm is great, there may be an aggravated assault, even though the risk of harm is statistically low; while the risk here may have been low, the magnitude of harm was significant; as such, there is no substantial conflict in the record with his pleas). 

United States v. Glenn, 66 M.J. 64 (the military judge did not abuse her discretion in accepting appellant’s guilty pleas where appellant’s mitigation evidence in sentencing that he suffered from mental health problems (a mood disorder called cyclothymic disorder) did not raise a substantial basis in law and fact for questioning his guilty plea; there was no testimony indicating that this mood disorder, without more, would be a defense to appellant’s offenses, there was no testimony suggesting that this mood disorder affected appellant’s mental responsibility at the time of the offenses, and appellant does not now claim that he lacked mental responsibility for the offenses to which he pleaded guilty). 

United States v. Holbrook, 66 M.J. 31 (to reject a guilty plea, the trial record must show a substantial basis in law and fact for questioning the guilty plea). 

(if appellant’s providence inquiry established the facts necessary to support the elements of the UCMJ offense charged, the plea to that charge is provident). 

(it is undisputed that appellant’s providence inquiry established that he was enlisted in the armed forces, received pay and allowances, knowingly misrepresented the extent of his preservice drug use, and that such prior drug use was relevant to qualification for enlistment in the Coast Guard -- i.e., material; appellant’s providence inquiry established both every element of an Article 83, UCMJ, offense and the facts alleged in the specification; any prevarication during the providence inquiry regarding the timing of Appellant’s knowledge of the materiality of his misrepresentations did not raise a substantial basis in law and fact for questioning his guilty plea to a violation of Article 83, UCMJ). 

(appellant’s guilty plea to fraudulent enlistment was provident even though the military judge failed to establish appellant’s knowledge that the facts he misrepresented were material to his enlistment at the time he made them; that knowledge was not necessary for his guilty plea to fraudulent enlistment to be provident). 

 United States v. Mitchell, 66 M.J. 176 (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; this inquiry must reflect that the accused understands the plea and is entering it voluntarily; the accused must admit to each element of the offenses to which the accused is pleading guilty; 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). 

(appellant’s statements on the record during the providence inquiry that he believed the substance he sold was marijuana, but was later told that it was not marijuana, raised the possibility that the distributed substance was not marijuana; as such, appellant set up matter inconsistent with his guilty plea; 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 was a substantial basis in law and fact to question appellant’s plea to wrongful distribution of marijuana).

United States v. Hunter, 65 M.J. 399 (military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his plea and the accused’s consent to do so must be ascertained; the accused must know and understand not only the PTA’s impact on the charges and specifications which bear on the plea, but also other terms of the agreement, including consequences of future misconduct or waiver of various rights; reflecting these concerns, RCM 910(f)(4) requires that where a plea agreement exists, the military judge shall inquire to ensure: (A) that the accused understands the agreement; and (B) that the parties agree to the terms of the agreement; this inquiry is part and parcel of the providence of an accused’s plea, and necessary to ensure that an accused is making a fully informed decision as to whether or not to plead guilty; an inquiry that falls short of these requirements and fails to ensure the accused understands the terms of the agreement is error). 

 United States v. Falcon, 65 M.J. 386 (a military judge is obligated to reopen the plea inquiry when a possible defense has been raised and not satisfactorily refuted because such a matter would be inconsistent with the accused’s guilty plea; however, the mere possibility of a defense, without more, does not give rise to this obligation).

(a guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea).

(the military judge did not abuse his discretion when he did not reopen the providence inquiry to advise the accused of the possibility of a partial mental responsibility defense to a charge of making and uttering checks without sufficient funds under Article 123a, UCMJ, because of statements made during the trial relating to the accused’s gambling addiction and his diagnosis as pathological gambler, where there was the lack of any testimony that the accused’s diagnosis could have affected his ability to form the specific intent to defraud and the lack of any authority that such a diagnosis may provide a partial mental responsibility defense).

2007

(the military judge erred when he advised the accused that his guilty plea waived his right against self-incrimination with respect to the unauthorized absence offense to which he pleaded guilty and that he retained that right with respect to the greater offense of desertion to which he pleaded not guilty, and then later, when the defense counsel asked the military judge to consider the accused’s providence inquiry statements after the close of the government’s evidence, the military judge concluded that he could consider everything that he had heard up to that point, without further questioning or advising the accused; this, of course, was error because it was inconsistent with the advice the military judge gave the accused on the greater offense of desertion and therefore, beyond the accused’s express waiver of his privilege against self-incrimination).

(military law imposes an independent obligation on the military judge to ensure that the accused understands what he gives up because of his guilty plea and the accused’s consent to do so must be ascertained). 

(after having expressly advised the accused that the stipulation of fact entered into in conjunction with his guilty pleas would be used, as indicated in the stipulation’s first paragraph, for the limited purposes of determining the providence of his guilty pleas to unauthorized absence and for determining the sentence, the military judge erred in conducting no inquiry into a later paragraph of the stipulation that suggested a broader use by the prosecution of the stipulation and the included exhibits on the greater offense of desertion; without further inquiry into this paragraph to clarify the apparent inconsistency between it and the first paragraph, there was an insufficient basis to determine that the accused knowingly consented to the use of the stipulation and the adjoining exhibits in the government’s case on the merits of the desertion offense). 

(the accused’s plea to an unauthorized absence terminating on a particular date was provident, notwithstanding the fact that he claimed during the plea inquiry to having contacted his recruiter at an earlier date; accepting the accused’s assertion as true, the record does not reflect that he physically presented himself to military authorities for the purpose of surrendering; as such, the accused set up a mere possibility of a conflict, which does not provide a substantial basis for questioning the plea of guilty to the later termination date).  

United States v. Harrow, 65 M.J. 190 (the military judge is permitted in a borderline guilty plea case to give weight to the defense evaluation of the evidence). 

(a guilty plea is provident if the facts elicited make out each element of the charged offense). 

(appellant’s guilty plea to larceny stemming from a fraudulent insurance claim was provident, where the providence inquiry established that appellant fraudulently made a claim to her insurance carrier so that the carrier would pay for damage done to another airman’s car; appellant was not driving the car covered by her insurance carrier when she collided with the other airman’s vehicle; in fact, the accident occurred before appellant had the insurance upon which she made the claim; appellant did not tell the insurance company either of these facts and intended that it pay the claim; as a result of appellant’s misrepresentations, the insurance carrier paid the other airman for damage appellant did to his car in the accident; a person commits an obtaining type larceny if a person wrongfully obtains the delivery of another’s goods to a person or place designated by the accused; appellant’s suggestion that the military judge’s failure to elicit how she knew it was her representation that deceived the insurance company or why her misrepresentation was an important factor in the insurance company’s decision to pay, or when the insurance money was paid to the airman, did not create any basis for questioning the sufficiency of the plea; in addition, appellant’s motive for committing this offense -- that she knew she was supposed to pay the airman for damage she did to his car – did not set up a matter inconsistent with her plea; her motive did not place the facts of this case within the framework of a debt that is not the proper subject of a larceny). 

United States v. Thomas, 65 M.J. 132 (mere conclusions of law recited by an accused are insufficient to provide a factual basis for a guilty plea). 

(in this case, the stipulated fact that appellant did not know that he was entering the installation rendered his plea to wrongful introduction of marijuana onto a military installation improvident).

United States v. Tippit, 65 M.J. 69 (the accused’s guilty pleas were not rendered improvident by his alleged mistaken belief that his RCM 707 speedy trial issue would be preserved for appeal if he entered unconditional guilty pleas, where the military judge did not have an affirmative duty under RCM 910 to instruct an accused that unconditional guilty pleas waived further review of an RCM 707 speedy trial claim). 
 
United States v. Carr, 65 M.J. 39 (the military judge did not abuse her discretion in accepting appellant’s guilty pleas to assault consummated by a battery arising out of appellant’s impersonation of a person training to become a gynecologist and his subsequent gynecological exams of female victims, notwithstanding appellant’s contention that the consent of his victims was procured by fraud in the inducement, rather than fraud in the factum, where the plea inquiry amply showed that appellant had neither medical training nor license, that his lies about his qualifications induced his victims to submit to him, and that he performed pretended examinations that he was not qualified or licensed to perform; once the military judge elicited from appellant that he lacked training and qualifications, that was sufficient to render his pleas provident; appellant’s lies amounted to fraud in the factum, not fraud in the inducement).

United States v. Shaw, 64 M.J. 460 (if an accused sets up matter inconsistent with the guilty plea at any time during the proceeding, the military judge must either resolve the apparent inconsistency or reject the plea). 

(when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency; the existence of an apparent and complete defense is necessarily inconsistent with a plea of guilty). 

(military judges should take particular care to make sure that considerations of mental health do not put the providence of a guilty plea at issue). 

(in this guilty plea case, appellant’s statement during his unsworn statement that he had been diagnosed with bipolar disorder did not set up matter raising a possible defense in the guilty plea context; rather it presented only a mere possibility of a defense; there was no factual record developed during or after the trial substantiating appellant’s statement or indicating whether and how bipolar disorder may have influenced his plea; nor did appellant’s conduct during the plea inquiry raise concerns that might have suggested to the military judge that appellant lacked the capacity to plead; moreover, appellant has not asserted, nor does his statement reflect, that he was unable to appreciate the nature and quality or wrongfulness of his acts as a result of a mental disease or defect; thus, appellant’s statement without more, did not raise an apparent inconsistency with his plea, and the military judge did not abuse his discretion in not conducting a further inquiry).  

(it may be prudent for a military judge to conduct further inquiry when a significant mental health condition is raised during a guilty plea inquiry in light of military law and practice regarding mental health issues and to obviate such issues on appeal; whether further inquiry is required as a matter of law is a contextual determination). 

United States v. Pena, 64 M.J. 259 (as a general matter, the military judge does not have an affirmative obligation to initiate an inquiry into early release programs as part of the plea inquiry). 

(chief reliance must be placed on the defense counsel to inform an accused about the collateral consequences of a court-martial conviction and to ascertain his willingness to accept those consequences). 

(in the present case, appellant failed to establish that the conditions imposed during his mandatory supervised release rendered his guilty pleas improvident where he did not demonstrate that the collateral consequences actually imposed increased his punishment and where neither the text of the plea agreement nor the record of the military judge’s plea inquiry contained any language that would have placed an obligation on the military judge to address the mandatory supervised release program at that time). 

2006

United States v. Miller, 63 M.J. 452 (in this case, appellant’s failure to know that he would be required to register in his state as a sex offender as a result of his conviction was not the result of the language of the pretrial agreement, was not induced by the military judge’s comments, nor was it made readily apparent to the military judge; because appellant’s lack of knowledge is not the result of any of the above, the military judge did not err in his responsibility to ensure that appellant understood all the consequences of his guilty plea; therefore, as there was no substantial basis to question his guilty plea, appellant’s plea was provident and will not be set aside). 

(when an accused is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases). 

United States v. Phillippe, 63 M.J. 307 (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).

(even if an accused does not volunteer all the facts necessary to establish a defense, if he sets up matter raising a possible defense, then the military judge is obligated to make further inquiry to resolve any apparent ambiguity or inconsistency; only after the military judge has made this inquiry can he then determine whether the apparent inconsistency or ambiguity has been resolved; however, to answer this question, there must be sufficient information on the record from which to arrive at this conclusion). 

(Article 45, UCMJ, manifests a congressional intent that guilt be acknowledged consistently from the pleas through the sentence; when, either during the plea inquiry or thereafter, and in the absence of prior disavowals, circumstances raise a possible defense, a military judge has a duty to inquire further to resolve the apparent inconsistency). 

(accused’s plea of guilty to unauthorized absence from July 24, 2001 to March 31, 2004 was improvident with respect to the period after September 11, 2001, where the accused raised a matter inconsistent with his plea in his unsworn statement during sentencing when he related an apparent attempt to surrender himself at an Air Force base on or about September 11, 2001, but the military judged failed to make further inquiry to determine if the apparent inconsistency could be resolved; there were insufficient facts to determine when appellant initiated a subsequent period of unauthorized absence).

United States v. Zachary, 63 M.J. 438 (a military judge has a duty under Article 45, UCMJ, to explain to the accused the defenses that he raises during a providence inquiry; Article 45(a) requires that, in a guilty-plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected; where an accused is misinformed as to possible defenses, a guilty plea must be set aside). 

(a military judge erred in accepting the accused’s guilty plea to indecent acts with a child, where the accused set up a matter inconsistent with his guilty plea when he raised on the record the possibility that he had an honest and reasonable mistake as to the victim’s age).

(although the accused’s alleged mistake as to the victim’s age precluded the acceptance of his guilty plea to the offense of indecent acts with a child, his statements during the providence inquiry, during which he admitted performing a sexual act on the victim in the presence of a third party, adequately supported a finding of guilty to the lesser included offense of indecent acts with another).

United States v. Simmons, 63 M.J. 89 (a military judge may not accept a guilty plea unless he makes such inquiry of the accused that satisfies him of a factual basis for the plea). 

(the accused must admit every element of the offenses to which he pleads guilty; the factual predicate is sufficiently established if the factual circumstances as revealed by the accused himself objectively support that plea). 

(appellant’s plea of guilty to aiding and abetting the assault of a subordinate by another Marine was improvident because he failed to admit to sharing in the criminal purpose; although appellant admitted that he had a duty to intervene and stop the assault because he was the NCO in the victim’s platoon but did not do so, the facts did not establish that appellant shared the assailant’s criminal intent as appellant specifically denied any prior knowledge of assailant’s intent to assault the victim and he did not provide any affirmative assistance to the assailant in the ten seconds it took the assailant to assault the victim; while appellant may have shared the assailant’s intent, without further factual development on the record, the assailant’s actions were too spontaneous and too quick to draw such an inference without further inquiry into the facts; establishment of a duty to intervene, without more, does not per se satisfy the requirement of a shared purpose under Article 77, UCMJ; failure to act in accordance with a legal duty can reflect criminal intent; however, this is a fact-specific inquiry and the facts of this plea inquiry fail to establish such shared intent; as such, there is a substantial basis in law and fact to question the sufficiency of appellant’s guilty plea). 

United States v. Parker, 62 M.J. 459 (prior to accepting a guilty plea, the military judge must provide detailed advice to the accused and ensure that the accused understands the meaning and effect of the plea; the military judge may not accept a plea of guilty without addressing the accused personally and determining that the plea is voluntary; in addition, the military judge may not accept a plea of guilty without questioning the accused and ensuring that there is a factual basis for the plea; the accused must admit every element of the offenses to which the accused pleads guilty; the accused need not describe from personal recollection all the circumstances necessary to establish a factual basis for the plea; nevertheless, the accused must be convinced of, and be able to describe all the facts necessary to establish guilt).

(the military judge has broad discretion to err on the side of caution in deciding whether to accept a plea; when the military judge perceives that the accused is not prepared to agree that his actions satisfied an element of the offense, that judge is well within his discretion in deciding not to accept the plea).

 United States v. Gosselin, 62 M.J. 349 (if the admissions made by an accused at his providence inquiry do not establish each of the elements of the alleged offense, the guilty plea must be set aside). 

(the accused’s guilty plea to wrongfully introducing illegal mushrooms onto a military base under an aiding and abetting theory was improvident where the record did not reflect that the accused had the intent to share in the criminal purpose of introducing the mushrooms or that he participated in the act of introducing mushrooms by taking an affirmative step).  

(conclusory responses by an accused to a military judge’s questions regarding his liability as an accomplice are not sufficient to find the accused’s plea provident; conclusions of law alone do not satisfy the requirements of Article 45, UCMJ, and RCM 910(e); 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 these responses are not supported by the factual statements made by the accused elsewhere in the providence inquiry).

(in this case, even if the accused had a duty to interfere with the introduction of mushrooms onto the base, the military judge failed to establish that the accused’s noninterference was intended to act as aid or encouragement to the perpetrator). 

(where the providence inquiry failed to establish that the accused intended to facilitate the perpetrator’s introduction of mushrooms onto a military base or assisted or participated in the commission of the offense, there was a substantial basis in law and fact for questioning the guilty plea). 

United States v. Aleman, 62 M.J. 281 (before accepting a plea of guilty, the military judge must conduct an inquiry of the accused to determine whether there is a factual basis for the plea and whether the accused understands the plea and enters it voluntarily; the accused must admit every element of the offense to which the accused is pleading guilty). 

(appellant’s guilty plea to suffering the sale of military property was improvident where the inquiry did not establish a factual basis for the third element, i.e. that the sale of the property was suffered by a certain omission of duty by appellant; the record shows, and the government acknowledges, that other than a listing of the third element, there was no discussion of any duty on the part of appellant during the providence inquiry; the military judge did not elicit any testimony from appellant regarding any duty he may have had to safeguard the property, and appellant did not articulate such a duty; in addition, none of the statements in appellant’s stipulation of fact recognized the existence of a duty to safeguard the property; without an admission by appellant or any other evidence in the record establishing this element of the offense, the plea lacked the requisite factual basis). 

(where the plea inquiry into suffering the sale of military property was deficient due to the lack of discussion of a duty on the part of appellant to safeguard the property, appellant’s conviction could have been upheld if the plea inquiry was sufficient to sustain a conviction for the closely related offense of selling military property, a crime for which there is no omission of duty element; the offense of selling military property under Article 108(1) requires a showing that the accused sold the property; in this case, that element may have been satisfied through an aiding and abetting theory; however, because the military judge did not advise appellant as to such a theory and appellant did not articulate an understanding of such a theory, the plea to the closely related offense was not provident). 

(it is appropriate to rely upon stipulations of fact to establish a factual basis for a guilty plea).

2005

United States v. Mizgala, 61 M.J. 122 (a litigated speedy trial motion under Article 10, UCMJ, is not waived by a subsequent unconditional guilty plea). 
 
United States v. Harris, 61 M.J. 391 (a guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea). 

(a plea of guilty waives a number of important constitutional rights; as a result, the waiver of these rights must be an informed one). 

(in this case, there is a substantial basis in law and fact to question the accused’s pleas of guilty where the military judge concluded after holding a post-trial Article 39(a) session that the accused suffered a severe mental defect or disease at the time of the offenses; the accused could not make an informed plea without knowledge that he suffered a severe mental disease or defect at the time of the offenses, nor was it possible for a military judge to conduct the necessary Care inquiry into an accused’s pleas without exploring the impact of any potential mental health issues on those pleas).

2004

United States v. Hardeman, 59 MJ 389 (a court shall not accept a plea of guilty where an accused sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently; nor shall a court 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 guilty plea will be rejected only where the record of trial shows a substantial basis in law and fact for questioning the plea). 

(in this case, where the providence inquiry revealed an inconsistency between the stipulation of fact and appellant’s statements during the plea inquiry with respect to the inception date of his unauthorized absence, and where the providence inquiry did not ultimately reveal the date on which appellant was willing to admit he absented himself without authority, the record does not fix a date of inception; because the record does not support the legal determination that appellant conceded that his absence was without authority on the charged date, there is a substantial basis in law and fact to question his plea).

United States v. Hansen, 59 MJ 410 (an accused entering a guilty plea waives several of his constitutional rights; these constitutional rights include the right to trial by jury, the right to confront one’s accusers, and the privilege against compulsory self-incrimination; these rights are fundamental to the military justice system; as a result, if there is to be a waiver of these rights, it must be an intentional relinquishment or abandonment of a known right or privilege). 

(the record of trial must demonstrate that the military trial judge or president personally addressed the accused, advised him that his plea waives his right against self-incrimination, his right to a trial of the facts by a court-martial, and his right to be confronted by the witnesses against him; and that he waives such rights by his plea; the judge must make a finding that there is a knowing, intelligent, and conscious waiver in order to accept the plea; that waiver is not to be presumed from a silent or inadequate record; what is important, in our view, is that the accused is aware of the substance of his rights and voluntarily waives them). 

(although this Court recognizes that the military judge should advise the accused of the rights he is waiving by pleading guilty, we have previously declined to adopt a per se rule that a failure to fully advise an accused mandates reversal; instead, the issue is not whether there is exemplary compliance with what we had in mind in Care but rather whether the combination of all the circumstances leads the court to conclude that the accused’s plea was informed and voluntary).

(we consider United States v. Burton, 21 C.M.A. 112, 44 C.M.R. 166 (1971), the low water mark as far as what the record must include to demonstrate that the accused was properly advised of his rights).

(based on the record, we believe appellant was advised of, understood, and knowingly waived his right to a trial of the facts; however, we are not prepared to conclude the same with respect to appellant’s right against self-incrimination or his right to be confronted by and cross-examine witnesses; the combination of all the circumstances surrounding the judge’s statements regarding those particular rights falls short of demonstrating that appellant’s guilty plea and waiver of the rights was informed and voluntary within the meaning of McCarthy, Boykin, and Care; we cannot be confident that appellant intelligently waived these rights notwithstanding the presence of counsel; after all, the military judge is required to ensure that the accused personally understands the rights he is about to waive). 

(where bedrock constitutional rights are at issue and are waived, we should not settle for inference and presumption when certainty is so readily obtained). 

(this Court does not require incantation of constitutional formulas; however, we do require a record of confidence that an individual accused had his rights explained to him, understood his rights, and knowingly and intelligently waived them; because the relinquishment of these bedrock constitutional rights is the essence of the plea bargain, we will not presume or imply that a military accused understood them and waived them, absent a demonstrable showing in the record that he did in fact do so).

United States v. Irvin, 60 MJ 23 (appellant was charged under clauses 1 and 2 of Article 134 with engaging in conduct prejudicial to good order and discipline or of a nature to bring discredit to the armed forces by wrongfully and knowingly possessing visual depictions of minors engaging in sexually explicit conduct; the criminal nature of the conduct did not derive from a clause 3, Article 134 charge specifying a violation of the CPPA of 1996 (CPPA); thus, the providence of his guilty plea must be assessed against the elements of that offense, not the elements of the CPPA offense at issue in O’Connor and Free Speech Coalition).

(we find no substantial basis in law or fact to question the providence of appellant’s plea where (1) in advising appellant of the elements of the clauses 1 and 2 Article 134 offense, the military judge did not make any reference to the terms struck down as constitutionally overbroad in Free Speech Coalition; (2) the criminal offense that was explained to appellant and to which he pleaded guilty did not include a reference to visual depictions that “appear to be” of a minor engaging in sexually explicit conduct, or materials that were pandered in a manner that “conveys the impression” that they include visual depictions of minors engaging in sexually explicit conduct; (3) the offense that the military judge explained to appellant and to which he pleaded guilty was drawn strictly in terms of “visual depictions of minors engaging in sexually explicit conduct”; and (4) appellant’s explanation to the military judge was not cast in terms of images that “appeared to be” child pornography as was the case in O’Connor, but rather in terms of visual depictions that he knew “were, in fact, minors engaging in sexually explicit conduct”).

(in past cases, we have affirmed convictions for a lesser-included offense under clause 2 of Article 134 for the “possession of images depicting sexually explicit conduct by minors”; as in those cases, appellant in this case admitted to and discussed with the military judge the character of his conduct as service-discrediting and prejudicial to good order and discipline; under these circumstances, the record reflects no substantial basis in law or fact for questioning the providence of his guilty plea).

United States v. Mason, 60 MJ 15 (under our decision in O’Connor, a provident guilty plea to a violation of the CPPA must reflect that the accused violated those portions of the statute not affected by the Supreme Court’s ruling in Free Speech Coalition; the absence of any focus on or discussion concerning those aspects of the statute in the present record coupled with the use of the unconstitutionally overbroad definition during appellant’s plea colloquy render this case indistinguishable from O’Connor; accordingly, we cannot view appellant’s plea of guilty to violating the CPPA, and thus to violating clause 3 of Article 134, as provident).

(we have recognized in the past that an improvident plea to a clause 3 offense under Article 134 based on a federal child pornography statute may be upheld as a provident plea to a lesser-included offense under clause 2 of Article 134; those past cases involved admissions by the accused during the plea inquiry as to the service-discrediting character of their conduct and we characterized those discussions as demonstrating that the accused clearly understood the nature of the prohibited conduct).

(the plea colloquy in O’Connor was focused solely on the nature of the prohibited conduct under the CPPA, without any discussion or acknowledgement of the criminal nature of the conduct deriving alternatively (and independently) from its character as service-discrediting or prejudicial to good order and discipline; absent any discussion with the military judge as to how his conduct might be criminal under clause 1 or 2 as distinct from criminal under clause 3, we could not view O’Connor’s guilty plea as provident to a lesser-included offense under clause 2).

(the record here contains what was missing in O’Connor; the plea colloquy between the military judge and appellant demonstrates that he clearly understood the nature of the prohibited conduct in terms of that conduct being service-discrediting and prejudicial to good order and discipline; the clause 1 and clause 2 elements were explained to him as a basis for finding his conduct criminal apart from clause 3 and his discussions with and admissions to the military judge were made in that context; absent some other distinguishing factor, we could deem appellant’s guilty plea provident as to a lesser-included offense under clause 1 and clause 2 under the principles embodied in past cases). 

(we recognized in O’Connor that there is a distinguishing factor at play here: the impact of Free Speech Coalition and its creation of “a constitutional dimension that was not at issue” in our past cases; that constitutional dimension flows from the Supreme Court’s extension of First Amendment protection to certain depictions of minors engaging in sexually explicit conduct, i.e., “virtual” as opposed to “actual” images; we expressly acknowledged in O’Connor, but did not answer, the question as to whether, in the wake of Free Speech Coalition, the possession, receipt or distribution of images of minors engaging in sexually explicit conduct (regardless of their status as “actual” or “virtual”) could constitute service-discrediting conduct for purposes of Article 134; such inquiry must necessarily be undertaken on a case-by-case basis; in analyzing this constitutional dimension, the ultimate question is whether the status of the images in the present case as “virtual” or “actual” is of consequence in the context of assessing the providence of appellant’s guilty plea under clauses 1 and 2; we conclude that it is not). 

(the receipt or possession of “virtual” child pornography can, like “actual” child pornography, be service-discrediting or prejudicial to good order and discipline; even if we were to assume that the specific images that serve as the basis for appellant’s “child pornography” charge are “virtual” in nature, this still involves a commissioned officer of the United States Air Force receiving and viewing such images on a government computer in his workplace; under those circumstances, the distinction between “actual” child pornography and “virtual” child pornography does not alter the character of appellant’s conduct as service-discrediting or prejudicial to good order and discipline).

(while the issue as to whether the images of child pornography are “virtual” or “actual” may have a potentially dispositive effect in prosecutions under the CPPA in both civilian and military settings, it is not inherently dispositive of their impact on the esteem of the armed forces or good order and discipline; those are the yardsticks by which the criminality of conduct under clauses 1 and 2 are measured; even assuming the images at issue here are “virtual,” appellant’s conduct in receiving those images on his government computer can constitutionally be subjected to criminal sanction under the uniquely military offenses embodied in clauses 1 and 2 of Article 134).

United States v. Pinero, 60 MJ 31 (appellant was charged with and pleaded guilty to a 53-day period of unauthorized absence; however, appellant testified, and the military judge concluded, that he returned to military control and authority for five hours at some point during this period of unauthorized absence before initiating a second period of unauthorized absence; termination was not merely a “possible” defense here — the judge secured a factual basis establishing that appellant was, for a five-hour period, not guilty of unauthorized absence; as a result, the record of trial demonstrates a substantial basis in law and fact to question appellant’s plea to a 53-day period of unauthorized absence). 

(the military justice system takes particular care to test the validity of guilty pleas because the facts and the law are not tested in the crucible of the adversarial process; further, there may be subtle pressures inherent to the military environment that may influence the manner in which servicemembers exercise (and waive) their rights; the providence inquiry and a judge’s explanation of possible defenses are established procedures to ensure servicemembers knowingly and voluntarily admit to all elements of a formal criminal charge). 

(we are cognizant that in guilty-plea cases the quantum of proof is less than that required at a contested trial; before accepting a plea, due process requires a military trial judge to question the accused to make clear the basis for a determination by the military judge or president whether the acts or the omissions of the accused constitute the offense or offenses to which he is pleading guilty; a plea of not guilty must be entered where a substantial indication of direct conflict between the accused’s plea and his following statements arises).

(where an accused’s responses during the providence inquiry suggest a possible defense to the offense charged, the trial judge is well advised to clearly and concisely explain the elements of the defense in addition to securing a factual basis to assure that the defense is not available; also, in a guilty plea case, inconsistencies and apparent defenses must be resolved by the military judge or the guilty pleas must be rejected).

(during a providence inquiry into a charged unauthorized absence period, having found that appellant was under military control and custody and not absent on a date during that charged absence, the military judge must resolve any conflicting facts so the correct duration could be determined and counsel could decide how to proceed regarding the remainder of the charged period).

(a military judge may find multiple absences within a single charged period so long as the maximum authorized punishment does not exceed that for the longer period). 

(a factual interruption in a continuous period of unauthorized absence cannot be overlooked by a court where such interruption changes the qualitative nature of the offense and the punitive exposure).

(whether there is incentive to do so or not, a servicemember cannot plead guilty to an offense he did not commit).

United States v. Barton, 60 MJ 62 (a guilty plea is an admission of all the elements of a formal criminal charge; before accepting a guilty plea, a military judge must explain the elements of the offense and ensure that a factual basis for each element exists; it is not enough to elicit legal conclusions; the military judge must elicit facts to support the plea of guilty; this factual predicate is sufficiently established if the factual circumstances as revealed by the accused himself objectively support that plea; as a result, the issue must be analyzed in terms of providence of his plea not sufficiency of the evidence).

(even though at no point during the Care inquiry did appellant admit in declaratory fashion that he intended to steal more than $100 in merchandise and even though the stipulation of fact did not specify the value in question, such admission may be found in appellant’s acknowledgement that he understood the elements of the offense, which included a value of more than $100, and that his conduct fit the elements of larceny; thus, the judge established the relationship of fact to law by cross-referencing his predicate statement of elements). 

(although we may have doubts that a methodology of cross-reference will work generally in a Care inquiry, it did not amount to error in this case; reviewing the Care inquiry in whole, we are satisfied that appellant understood the elements of conspiracy to commit larceny, understood that the elements included a property valuation of over $100, and affirmatively admitted to the military judge that his actions satisfied this element of the offense; first, when the judge listed the elements at the outset, appellant told the judge that he understood the elements of larceny, including the $100 value requirement; moreover, the judge did not take “yes” for an answer, but took care to test the answer and asked appellant whether he in fact understood the elements and understood that he could ask for them to be repeated at any time; further, the judge required appellant to follow along during the Care inquiry using his charge sheet; because the offense contained the phrase “of a value more than $100.00,” and the judge informed appellant of this element, it is reasonable to conclude that appellant was aware of the elements to which he was pleading; in reaching this conclusion, we are cognizant that we are considering an element, property of a value more than $100; this is not a complex legal element; an understanding of this element does not require an intricate application of law to fact; moreover, appellant’s admission to this element involved more than simply his agreement with a legal conclusion, as the element itself contains a specific factual threshold; therefore, appellant’s admission to this element was an admission to law and fact; the record here says enough to objectively support an admission to each element of the offense).

(we cannot lose sight that this is a guilty plea case; a guilty plea case is less likely to have developed facts; with the benefit of appellate hindsight, one might well identify questions unasked or be tempted to look for the factual development that only a contested trial might contain; at the same time, we cannot lose sight that in a guilty plea case the Care inquiry is a substitute for a contested trial; by pleading guilty, an accused is relinquishing significant constitutional rights; he also spares the victim and the government the costs and consequences of a trial; as a result, appellant’s desire to plead guilty should not obscure the necessity of establishing each element to each offense; speed and economy must cede to care).

United States v. Negron, 60 MJ 136 (in the providence inquiry into the obscene mail offense in this case, the military judge erroneously used the definition of “indecent” from the offense of indecent acts with another rather than from the offense of indecent language; this fundamental definitional error rendered the plea improvident; moreover, the military judge’s questioning of appellant using primarily leading questions about this offense rendered the providence inquiry fatally deficient).

(in a guilty plea, the military judge has the duty to accurately inform appellant of the nature of his offense and elicit from him a factual basis to support his plea; an essential aspect of informing appellant of the nature of the offense is a correct definition of legal concepts; the judge’s failure to do so may render the plea improvident unless the record contains factual circumstances that objectively support the guilty plea to a more narrowly construed statute or legal principle).

(we advise against and caution judges regarding the use of conclusions and leading questions that merely extract from appellant “yes” and “no” responses during the providence inquiry; it is especially important that the accused speak freely so that a factual basis will be clearly established in the record; we find little benefit in establishing a factual record where appellant merely is “parroting” responses to leading questions asked by the military judge).