IN THE CASE OF
UNITED STATES, Appellee
Wilson L. McCRIMMON, Staff Sergeant
Crim. App. No. 20000075
GIERKE, J., delivered the opinion of the Court, in which CRAWFORD, C.J. and BAKER, J. joined. ERDMANN, J. filed a separate dissenting opinion in which EFFRON, J., joined.
For Appellant: Captain Terri J. Erisman (argued); Colonel Robert D. Teetsel, Lieutenant Colonel E. Allen Chandler, Jr., and Major Imogene M. Jamison (on brief); Captain Mary E. Card.
For Appellee: Captain Janine P. Felsman (argued); Lieutenant Colonel Margaret B. Baines, Major Mark L. Johnson, Captain Charles C. Choi, and Captain Tami L. Dillahunt (on brief); Captain Charles C. Choi.
Military Judge: T. E. Dixon
This opinion is subject to editorial correction before final publication.
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
his pleas, of six specifications of larceny, five specifications of
of a lawful order, and eight specifications of bribery, in violation of
Articles 121, 92, and 134, Uniform Code of Military Justice
10 U.S.C. §§ 921, 892,
and 934 (2000), respectively. The
adjudged and approved sentence provides for a bad-conduct discharge,
to the lowest enlisted grade, and confinement for 40 months. The Army Court of Criminal Appeals affirmed
findings and sentence in an unpublished opinion.
This Court granted review of the following issue:
WHETHER APPELLANT’S PLEAS OF GUILTY TO BRIBERY AS CHARGED IN SPECIFICATION 7-9 OF CHARGE IV WERE PROVIDENT WHERE APPELLANT’S STATEMENTS DURING THE PROVIDENCY INQUIRY DEMONSTRATED THAT HE DID NOT HAVE THE REQUISITE INTENT TO HAVE HIS ACTIONS INFLUENCED IN EXCHANGE FOR SOMETHING OF VALUE.
For the reasons set forth below, we affirm the decision of the Court of Criminal Appeals.
The charges against Appellant arose from
Appellant’s abuse of his position as a drill instructor at
As a drill instructor, Appellant’s job was to train recruits to become soldiers. In the training program, Appellant tried to instill Army values in the trainees. He initially fostered unit cohesion, individual pride, and personal loyalty both to the unit and to himself. Eventually, Appellant exploited these facets of training for his own financial benefit and manipulated the enlisted leadership of his unit and trainees in a complex web of larceny and bribery offenses.
Appellant’s violations of the Brigade Policy Memorandum and larceny offenses included the following misconduct. Appellant collected $610.00 from trainees to purchase platoon t-shirts, but Appellant never purchased the t-shirts and kept the money. Appellant received approximately $100.00 from 16 trainees in his platoon to have their boots “dipped” to make them look shiny for the inspection. Appellant returned the boots to the trainees, without getting them dipped, and kept the money for himself. Appellant collected approximately $300.00 from his platoon under the pretense of providing a donation to assist the family of one of their members who was hospitalized. Appellant delivered only some of the money to the family in need and kept the remainder of the money for his personal use. Appellant solicited and received nearly $100.00 from his trainees to purchase a cleaner to make their weapons look more presentable for an inspection. Appellant purchased only a small quantity of the cleaner and kept the remaining money. Finally, Appellant solicited money from trainees to assist his mother because her home had been destroyed by fire. Appellant informed the trainees that his mother had no place to stay and that he needed the money to purchase a plane ticket for his mother. The platoon collected $250.00 and gave it to Appellant. Actually, Appellant’s mother was well taken care of by Appellant’s sister and Appellant had no intention of purchasing airfare for his mother, and in fact kept the money for himself. In each of these offenses, Appellant used his subordinates, the platoon enlisted leadership, to collect money from his trainees.
In addition to these larceny offenses, Appellant’s misconduct included another dimension as Appellant committed multiple bribery offenses. Appellant wrongfully asked for and received money from trainees with the intent to influence his decisions and actions regarding his performance of official duties. Appellant asked for and received approximately $100.00 from three trainees to ensure that they would receive a passing score on their Physical Fitness Test (PFT) and would graduate with their class. When one of the trainees actually failed this test, Appellant intervened and passed the trainee, who eventually graduated on time. On another occasion shortly before the trainees graduated, Appellant asked for payments of $60.00 and $100.00 from two trainees to grant them unauthorized liberty to spend extra time with their families and girlfriends.
The granted issue in the present case relates to three alleged bribery offenses (specifications 7 through 9 of Charge IV) that have their genesis in a single incident of trainee misconduct. In early November 1998, three trainees in Appellant’s platoon were caught going to the post shoppette without authorization. The first sergeant threatened the trainees with punishment pursuant to Article 15, UCMJ, 10 U.S.C. §815 (2000). In a conversation with the first sergeant, Appellant learned that the Article 15 punishment was a scare tactic to keep the trainees “on that straight and narrow path until they graduated.” Taking advantage of this situation, Appellant asked each trainee for money in exchange for Appellant protecting them from Article 15 punishment, thereby permitting the trainees to graduate on time. Two of the trainees paid Appellant amounts less than $100.00, and one trainee paid an amount more than $100.00.
Based on these facts, Appellant was charged in specifications 7 through 9 of Charge IV with bribery. Each of these specifications alleged that Appellant “asked” for money from a trainee “with the intent to have his action influenced with respect to an official matter in which the United States was and is interested, to wit: whether or not to recommend Article 15 punishment against [a certain trainee].” In contrast to the three other bribery offenses in specifications 2 through 4 of Charge IV, Appellant was not charged with actually receiving the money for these three bribes. Appellant pleaded guilty to these offenses by exceptions and substitutions - simply excepting greater dollar amounts for the bribe and substituting lesser figures. The focus of our concern is the issue before us relating to the providency of his pleas.
Guilty Plea Developments
The initial portion of the providency inquiry is both simple and straightforward. The main task for the military judge was to address the factual predicate for each of Appellant’s several offenses.
Before accepting Appellant’s guilty pleas, the military judge advised Appellant that he would discuss with him the guilty plea and would not accept it unless Appellant understood its meaning and affect. Appellant indicated he understood the military judge’s instructions. The judge continued stating that a “plea of guilty is equivalent to a conviction, and it’s the strongest form of proof known to the law.” The judge explained, “[you must admit every act or omission, and element, of the offenses to which you have pled guilty, and that you are pleading guilty because you are, in fact, guilty.” Appellant again indicated that he understood the military judge’s directions.
Appellant was then placed under oath and the providency inquiry continued. First, the military judge established that the Appellant voluntarily entered into a Stipulation of Fact wherein Appellant admitted the truth of certain facts relating to his offenses. Appellant expressly acknowledged that the military judge could use the stipulation of fact to determine if Appellant was guilty of the offenses to which he had pleaded guilty. After both Appellant and the judge read the stipulation, the military judge admitted it into evidence.
Before reading the elements and charges to Appellant, the military judge explained what the term “elements” meant. He then told Appellant to ask himself, “First, is the element true; and Second, whether you wish to admit that it is true. After I list the elements for you, be prepared to talk to me about the offenses.”
The military judge then informed Appellant that he would discuss the offenses “a bit out of order” and immediately focused the providency inquiry on Appellant’s several bribery offenses. Starting with Appellant’s offense of accepting a bribe to alter a trainee’s score on the PFT, the judge then explained in detail to Appellant the elements of the offense of bribery including the following: (1) that Appellant “wrongfully and unlawfully asked for and received” money from a trainee; (2) that at the time Appellant had official duties as drill sergeant for his unit; (3) that Appellant “asked for and received this sum with the intent to have [his] actions influenced with respect to altering the score” of the trainee on the PFT; and (4) that the PFT was an official matter in which the United States was and is interested in; and (5) that Appellant’s conduct was to the prejudice of good order and discipline in the armed forces.
The military judge then repeated the elements of bribery for each of the other seven bribery specifications of Charge IV. Regarding the elements of specifications 5 through 9, the military judge erroneously advised Appellant both his actions and intent related to asking for and receiving a bribe. This statement was overbroad, as Appellant was charged in these offenses only with asking for the bribe. Regarding specifications 7 through 9, the military judge explained that the intent element of these offenses was “that you asked for and received this sum with intent to have your actions influenced with respect to whether or not to recommend Article 15 punishment against [a designated trainee].”
Next the judge explained the elements of the alleged orders violations in Charge II and finally the larceny offenses in Charge I. The providency inquiry did not address the offenses in Charge III and Charge IV of specification 1 as Appellant pleaded not guilty to these offenses that were eventually dismissed under the terms of Appellant’s pretrial agreement.
At this point the military judge began to address the factual predicate for each bribery offense in Charge IV. Regarding the offenses that related to Appellant’s accepting money to influence the PFT scores, Appellant explained, “I conjured up in my brain to come up with a plan to assist the soldier in the graduating, and at the same time, gain money for my own personal use.” The military judge asked Appellant, “Was it your intent to insure that, for this sum of money, Private [W]’s score would reflect that he passed?” Appellant responded, “Yes, Sir.” Appellant explained to the military judge that the other two offenses relating to his accepting money to influence the PFT scores were “pretty much the same circumstances” and the “same basic fact pattern.”
The military judge turned next to the Appellant’s bribery offenses that related to Appellant’s accepting money to permit trainees to spend extra time with their families and girlfriends. Appellant explained that he “preyed” on trainees who desired to spend time with their families. He stated that he both asked for and accepted money in exchange for granting the trainees extra liberty.
The judge next began an inquiry into Appellant’s offenses at issue in this appeal. The following dialogue between the military judge and Appellant is relevant:
MJ: Let's do take a look at Specifications 7, 8 and 9 of
Charge IV. Tell me why you're guilty of those
ACC: Pretty much the same reasons, sir, just different
circumstances. In this particular instance, we're
talking about Article 15 punishments. Each of the
soldiers were threatened by the First Sergeant to
receive an Article 15 punishment. It was just - with
being so close to graduation, it was pretty much,
after I later conversed with the First Sergeant - a
tactic, to get them [to] stay on that straight
and [n]arrow path until they graduated. After
conversing with the First Sergeant and realizing that
it was just a scare tactic, I took advantage of that
situation also and took it a step further, as far as
the scare tactic. I had them thinking that had they
gotten an Article 15, it would have an effect on them
graduating from basic training.
So at that
moment, I took advantage of them and accepted money
from them. I explained to them that if they paid me
money, they wouldn't get the Article 15 that was
promised to them by the First Sergeant, and they'd be
allowed to go ahead on and graduate.
MJ: So you knew the First Sergeant was bluffing?
ACC: Yes, sir, I did.
MJ: You capitalized on the First Sergeant's bluff by
indicating to these three soldiers that you could
influence whether they received this Article 15 or
ACC: Yes, sir, I did.
MJ: And you solicited money from them in each case?
ACC: Yes, sir, I did.
MJ: How much money did you get from Specialist [C] for
this recommendation of yours?
ACC: I don’t know the exact sum, but it was over $100.00,
MJ: Did you have input into whether individuals got
Article 15s or not?
ACC: Very much so, sir.
MJ: The bottom line is that you told them you had input,
ACC: Very much so, sir. In that environment, I pretty
much had say-so on whether or not they received an
Article 15 or not, sir.
also admitted that he engaged in the two additional
bribery offenses(alleged in specifications
8 and 9) by
asking for and receiving less than $100.00 from two other trainees for
misconduct related to this same situation.
The military judge then continued examining Appellant and
Appellant’s admission that Article 15 punishment was a matter in which
Summing up his actions in these bribery offenses, Appellant stated, “[I]t wasn’t my duty to take their money from them. It wasn’t my duty to offer them bribes. My duty was to train them, but I took it a step further and went into bribery and accepting money from them, sir.”
Before this Court and the Court of Criminal Appeals, Appellant asserts that the military judge erred in accepting his guilty pleas to specifications 7 through 9 of Charge IV. The Court of Criminal Appeals summarily affirmed Appellant’s conviction. Appellant argues that his pleas to those specifications were improvident because the providency inquiry demonstrated that he lacked the specific intent to have his actions or decisions influenced with respect to an official matter, Article 15 punishment. The gravamen of Appellant’s argument is the following:
While [A]ppellant did tell the military judge that he generally had input on whether soldiers got Article 15 punishment, [A]ppellant stated that he told the three soldiers listed in specifications 7, 8, and 9 of Charge IV that he would specifically recommend against the Article 15 the [first sergeant] threatened them with. . . . Since he knew that the [first sergeant] had already decided there would be no Article 15, [A]ppellant knew there would be no opportunity for him to provide input. Therefore, it was impossible for him to have possessed the requisite intent to have his actions influenced.
The Government argues that Appellant’s pleas were provident because it was Appellant’s intent to influence his own action, not the action of the first sergeant, that is necessary to satisfy the elements of bribery.
The Distinction Between Bribery and Graft
At the outset, it is important to appreciate the nature of the criminal offense of bribery punishable under Article 134 and second to distinguish it from the closely related offense of graft.
common law the offense of bribery was “the giving of any valuable
or benefit to the holder of a public office, or to a person performing
duty, or the acceptance thereof by such person, with the corrupt
he be influenced thereby in the discharge of his legal duty.” Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 527 (3d ed. 1982). Simply stated, “bribery
is the corrupt payment or receipt of a private price for official
is not specifically enumerated in the UCMJ as a criminal offense, but
punishable under Article 134, UCMJ. See Manual for
(1) Asking, accepting, or receiving.
(a) That the accused wrongfully asked, accepted, or received a thing of value from a certain person or organization;
(b) That the accused then occupied a certain official position or had certain official duties;
(c) That the accused asked, accepted, or received this thing of value (with the intent to have the accused’s decision or action influenced with respect to a certain matter);
this certain matter was
an official matter in which the
(e) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
(2) Promising, offering, or giving.
(a) That the accused wrongfully promised, offered, or gave a thing of value to a certain person;
(b) That the person then occupied a certain official position or had certain official duties;
(c) That this thing of value was promised, offered, or given (with the intent to influence the decision or action of this person);
this matter was an
official matter in which the
(e) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.
Two of the important facets of this bribery offense are that both the giving and receiving of a bribe are equally punishable and that a specific corrupt intent to influence an official action is required. Focusing on the latter and reflecting the common law roots of this offense, the MCM, Part IV, para. 66.c. explains that “bribery requires an intent to influence or be influenced in an official matter [.]” However, for these two separate bribery offenses of giving and receiving a bribe, there are different corrupt intents generally reflected in the following statement:
On the part of the briber, this requires an intent to subject the official action of the recipient to the influence of personal gain or advantage rather than public welfare. It does not require that the action sought to be induced should benefit the briber or should actually be detrimental to the public. The social interest demands that official action should be free from improper motives of personal advantage, and an intent to subject the action to such motives is a corrupt intent. If money is paid for such a purpose it is immaterial to the guilt of the briber whether the officer’s official conduct was actually influenced or not. On the part of the bribee, an intent to use the opportunity to perform a public duty as a means of acquiring an unlawful personal benefit or advantage, is a corrupt intent. Hence it is no defense to a charge of receiving a bribe that the recipient believed the action requested would be for the best interest of the public, or that he had determined upon that course of action before the bribe was offered. An officer who has determined upon a certain course of public action might change his mind if free from corrupting influences. The social interest requires that there should be no such conflict.
Perkins & Boyce, supra, at 537.
this general statement is helpful in understanding what constitutes
intent, it is not definitive. Where, as
here, an element of an offense states expressly the specific intent,
are controlling. See
construction is consistent with the federal bribery
statute that also requires a showing that the bribee
had a specific corrupt intent to have his decisions or actions
the bribe. See 18 U.S.C. 201(b)(2) (2000); United States v. Sun-Diamond
is this essential specific intent element in bribery that
distinguishes it from the offense of graft.
“[I]n graft an intent improperly to
official action need not be alleged or proved.”
The close similarity between the offenses of bribery and graft is evident from both being identified as offenses under Article 134. Paragraph 66(b) states the elements of two different graft offenses with elements identical to bribery with one significant exception. MCM, Part IV, para. 66.b.(1)-(2). Instead of the specific intent element in bribery, graft substitutes the following:
. . . .
(c) That the accused wrongfully asked, accepted, or received a thing of value (as compensation for or in recognition of services rendered, to be rendered, or both, by the accused in relation to a certain matter)[.]
. . . .
(2) Promising, offering, or giving
. . . .
(c) That this thing of value was promised, offered, or given (as compensation for or in recognition of services rendered, to be rendered, or both, by this person in relation to a certain matter)[.]
It is obvious that graft is a lesser included offense of bribery.
has a greater maximum punishment(five
years confinement)than the lesser offense of graft three years
Part IV, para. 66.e. The President increased the maximum
punishment for bribery from three to five years “to reflect the greater
seriousness of bribery which requires a specific intent to influence.”
It is therefore clear that for Appellant to be guilty of the offense of bribery, the record of trial must establish that Appellant had the specific intent to have his decision or action influenced with respect to a certain official matter. As Appellant pleaded guilty to the bribery offense, we evaluate this case in the context of his guilty plea.
The Providency of Appellant’s Guilty Plea to Bribery
accused does not have a constitutional right to plead guilty. See Santobello v.
a specific statute and case law establish the process to
evaluate a voluntary and reliable guilty plea.
See Article 45, UCMJ;
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.
. .” Article 45, UCMJ. “Unlike the civilian criminal justice system,
Article 45(a) requires that, in a guilty-plea case, inconsistencies and
apparent defenses must be resolved by the military judge or the guilty
must be rejected.” United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996)
States v. Jemmings, 1 M.J. 414, 418
1976); United States v. Dunbar, 20 C.M.A. 478, 143 C.M.R. 318
(1971)). “Mere conclusions of law
recited by an accused are insufficient to provide a factual basis for a
However, this Court will not set aside a guilty plea on appeal unless there is a substantial basis in law and
fact for questioning the plea.
Court in United States v. Bickley
stated, “In examining the providency of a
plea, this Court has noted that ‘the factual predicate is sufficiently
if the ‘factual circumstances as revealed by the accused himself
support the plea. . . .’” 50 M.J. 93, 94
(C.A.A.F. 1999),(citing United States v.
45 M.J. 172, 174 (C.A.A.F. 1996)(quoting
In the present case, the military judge initially established the voluntariness of Appellant’s pleas on the record by informing Appellant of his rights and the meaning of his pleas. The military judge informed Appellant that his guilty plea was “equivalent to a conviction, and it’s the strongest form of proof known to the law.” He then instructed Appellant not to plead guilty unless he believed that he was, in fact, guilty.
Next, the military judge engaged Appellant in a detailed dialogue that allowed Appellant to establish the factual circumstances surrounding the bribery offense when he pleaded guilty. Importantly, the military judge expressly stated the intent element for each of the bribery offenses. The judge initially addressed the factual predicate for the first bribery offense, specification 2 of Charge IV (relating to appellant asking for and receiving money to ensure a trainee would pass the PFT). The judge pointedly asked Appellant, “Was it your intent to insure that, for this sum of money, Private [W]’s score would reflect that he passed?” Appellant’s response was simply “Yes, Sir.” This response established Appellant’s intent was to protect the serviceman from failing the PFT and to guarantee the serviceman passed the test.
all other bribery offenses Appellant reaffirmed his
intent stating simply that these offenses were “[p]retty
much the same circumstances,” “the same basic fact pattern,” and “[p]retty much the same reasons, sir, just different
circumstances.” Additionally, the
detailed stipulation of fact explicitly established Appellant’s intent
influenced by each of the bribes. In the
stipulation, Appellant repeatedly states
to each of the offenses alleged in specifications 7 through 9 of Charge
that he asked for money from trainees “with the intent to have his
influenced with respect to deciding whether to recommend Article 15
against [the trainee].” Appellant’s
admission in this stipulation is another factor in concluding that his
We reject Appellant’s assertion that his disclosure in the providency inquiry that he was taking advantage of the situation relating to the first sergeant’s idle threat of Article 15 punishment is inconsistent with his guilty plea. The fact that Appellant knew that the first sergeant was bluffing is not dispositive because it is Appellant’s intent, and not that of the first sergeant, which is at issue. Appellant admitted that he “pretty much had say-so” when recommending Article 15 punishment. Therefore, even if the first sergeant did not intend to recommend Article 15 punishment, Appellant still had the power to recommend to the commander or the first sergeant that the punishment be imposed upon the trainees. The record establishes the offense of bribery because Appellant repeatedly admitted that he asked for money from his trainees with the intent to guarantee that the trainees not get Article 15 punishment and that they graduate on time. As the providency inquiry establishes Appellant’s specific intent, Appellant’s offense was bribery and not the lesser included offense of graft.
Importantly, in this case, Appellant was
not prosecuted for larceny of the money the trainees paid Appellant. This Court has recognized that prosecution
for both bribery and a larceny by falsely representing what the bribee intends to do may be problematic when the
offenses are rooted in mutually inconsistent findings.
Also, Appellant’s disclosure in the Stipulation
of Fact of his uncharged misconduct (actually receiving money in every
bolsters the adequacy of Appellant’s guilty plea. This
Court has stated, assuming no
overreaching by the Government, evidence of uncharged misconduct,
inadmissible evidence, may be presented to the court by stipulation and
considered by the court. See
As part of the negotiated guilty plea, Appellant agreed to the admission of a “Stipulation of Fact correctly describing the facts and circumstances surrounding the offense to which [he is] pleading guilty and any relevant aggravating and mitigating facts. [He] understand[s] the military judge may use the Stipulation of Fact to determine the providency of [his] plea . . . .” The stipulation further explicitly stated that Appellant received money in every bribe. Also the military judge elicited from Appellant cumulative admissions that he actually received payments of money in five of the bribery offenses. In these circumstances, the providency inquiry was not tainted by but instead strengthened by the record discussion of the uncharged misconduct.
In summary, Appellant’s statements establish that Appellant asked for, and often actually received, the money from trainees with the intent that the payments would influence his decision to insure they did not receive Article 15 punishment. The record alternatively establishes that each of the trainees gave, and Appellant accepted, monetary bribes with the intent to influence the decision and action of Appellant regarding possible future punishment.
For these reasons, we hold that there is no substantial basis in law or fact for overturning Appellant’s guilty pleas. The facts and Appellant’s admissions are consistent with the guilty pleas. The military judge explained the meaning and effect of pleading guilty, as well as each element of the charged offenses and the meaning of the word “element.” Appellant admitted he had the requisite intent, as well as the other elements of bribery, and sufficiently described the facts to support his plea. We hold that the Court of Criminal Appeals did not err in affirming the decision of the military judge to accept Appellant’s guilty pleas as provident.
The decision of the United States Army Court of Criminal Appeals is affirmed.
ERDMANN, Judge, with whom EFFRON, Judge, joins (dissenting):
dissent. In my view the record is
insufficient to sustain Staff Sergeant McCrimmon’s
guilty pleas to Specifications 7, 8 and 9 of Charge IV, which allege
asking for money. Specifically, the
record does not support the providence of these pleas to the element of
offense which requires McCrimmon to have
money with the intent of having his decision or action influenced. See Manual for Courts-Martial,
I agree with the
majority opinion that the focus of our decision in this case is whether
record establishes a factual basis for McCrimmon’s
plea to the specific intent element of bribery:
“That the accused asked, accepted, or received this thing of
the intent to have the accused’s decision
influenced with respect to a certain matter.”
During his discussion of the offenses with the military judge, McCrimmon acknowledged that as drill sergeant he “pretty much had say-so” as to Article 15 punishment. Despite this acknowledgment of general influence over the Article 15, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 815 (2000), decision-making process, in this case McCrimmon never asserted that he intended to exercise his own authority to make a recommendation regarding imposition of punishment under Article 15, UCMJ. Instead, McCrimmon acknowledged to the military judge that he was simply capitalizing on a situation not of his own making and which required no action whatsoever on his part:
After conversing with the First Sergeant and realizing that it was just a scare tactic, I took advantage of the situation also and took it a step further, as far as the scare tactic. I had them thinking that had they gotten an Article 15, it would have an effect on them not graduating from basic training. So at that moment, I took advantage of them and accepted money from them. I explained to them that if they paid me money, they wouldn’t get the Article 15 that was promised to them by the First Sergeant, and they’d be allowed to go ahead on and graduate.
Any implied promise to influence the process was nothing more than a false pretense to get money from the three trainees involved.
In the stipulation of
fact, McCrimmon did stipulate that he
“asked for and
received this sum, with the intent to have his decision influenced[.]” I am
not persuaded, however, that this
stipulation alone is sufficient to resolve the factual issue of McCrimmon’s actual intent in this case. The stipulation is written as a virtual
recitation of the elements of the offense and hardly seems reflective
facts. More importantly, however, the
difference between the stipulation and McCrimmon’s
actual statements should have caused the military judge to conduct a
in-depth inquiry into the facts. See
If he could not resolve the inconsistency
between the stipulation and the articulated facts, the military judge
have rejected the pleas. United
States v. Garcia, 44 M.J. 496, 498 (C.A.A.F. 1996), (quoting
UCMJ, 10 U.S.C. § 845(a)(1994)); see also
for Courts-Martial 910(e), (h)(2). McCrimmon’s sworn statement to the military
factually inadequate and the conflict with the stipulation of fact is
unresolved. These defects present a
substantial basis in fact and law for questioning the providence of
In this case, the record supports a provident guilty plea only to the lesser-included offense of graft. Graft is distinct from bribery in that graft requires no specific intent to have a decision or action influenced. MCM, Part IV, para. 66.b.(1)(c). McCrimmon’s statements reveal that he asked for the money from the three trainees for services, although he had no intention of performing any service or taking any action whatsoever.
I would modify the findings of guilty to specifications 7, 8, and 9 of Charge IV to reflect only a finding of guilty to the lesser-included offense of graft in violation of Article 134, UCMJ, 10 U.S.C. § 934 (2000). I would affirm the modified findings and the remaining findings of guilty. I am convinced, however, that had the military judge found McCrimmon guilty of graft in these three specifications, he would have adjudged an identical sentence. Therefore, I would affirm the sentence.