IN THE
CASE OF
UNITED STATES, Appellee
v.
Justin W. Erickson, Airman First
Class
No. 04-0721
Crim. App. No. S30244
Argued
Decided
EFFRON, J.,
delivered the opinion of the Court, in which GIERKE, C.J., and
CRAWFORD, BAKER,
and ERDMANN, JJ., joined.
Counsel
For
Appellant: Captain Anthony D. Ortiz,
(argued); Colonel
Carlos L. McDade, Major Sandra K. Whittington, Captain
Jennifer
K. Martwick, and Captain Christopher S. Morgan, (on brief).
For
Appellee: Major John C. Johnson,
(argued); Captain
Kevin P. Stiens, Lieutenant Colonel Robert V. Combs, and Lieutenant
Colonel Gary F. Spencer, (on brief).
Military
Judge: Patrick M. Rosenow
This
opinion
is subject to revision before final publication.
Judge EFFRON delivered the opinion
of the
Court.
At a special court-martial
composed of a
military judge sitting alone, Appellant was convicted, in accordance
with his
pleas, of attempted wrongful possession of 3, 4
methylenedioxy-methamphetamine
(ecstasy), wrongful use of cocaine, and wrongfully inhaling nitrous
oxide, in
violation of Articles 80, 112a, and 134, Uniform Code of Military
Justice
(UCMJ), 10 U.S.C §§ 880, 912a, 934 (2000), respectively.
He was sentenced to a bad-conduct discharge,
confinement for 105 days and reduction to E-1.
The convening authority reduced the amount of confinement to
ninety-five
days and approved the remainder of the sentence as adjudged. The Air Force Court of Criminal Appeals
affirmed in an unpublished decision.
Upon Appellant’s petition, we
granted review
of the following issue:
WHETHER
APPELLANT’S GUILTY PLEA TO WRONGFULLY
USING NITROUS OXIDE UNDER CLAUSE 1 OF ARTICLE 134, UCMJ, WAS
IMPROVIDENT.
For the reasons set forth below,
we conclude
that Appellant’s guilty plea was provident.
I. BACKGROUND
Article 134 prohibits “all disorders and
neglects to the prejudice of good order and discipline in the armed
forces.” 10 U.S.C. §
934 (2000). The pertinent charge
in the present case alleged that Appellant, in violation of Article
134,
“wrongfully inhale[d] nitrous oxide, such conduct being prejudicial to
good
order and discipline in the armed forces.”
At trial, Appellant entered a plea of guilty to this charge. During the inquiry into the providence of the
plea, the military judge informed Appellant of the three elements of
this
offense:
[The
first element is that] at or near
The
second element is that your inhalation of that was wrongful; and
The
third element is that under the circumstances your conduct was to the
prejudice
to good order and discipline in the armed forces or was of a nature to
bring
discredit upon the armed forces.
The
military judge advised Appellant that in order to be guilty of this
offense
“[y]ou had to know you were inhaling it, it couldn’t be accidental” and
that
“there could be no law enforcement excuse and no medical excuse.” In addition, the military judge advised
Appellant that:
[Conduct]
prejudicial to the good order and discipline . . . . means
causing a reasonably direct and obvious injury to good order and
discipline or
had to be service discrediting. Which
means it would have to tend to harm the reputation of the service or
lower it
in public esteem.
During
the plea inquiry, Appellant indicated he understood the elements of the
offense, the definitions, and the defenses noted by the military judge.
At the request of the military judge,
Appellant provided the following details of the offense.
He and two other airmen purchased canisters
of nitrous oxide, a substance popularly known as laughing gas. In addition to the canisters, called
“whippits,” they purchased balloons and “what they call a cracker,
where you
put the cartridge in there and then crack the top and screw it on and
put a
balloon over it to dispense the air into the balloon and then take the
balloon
up and inhale it.” Appellant told the
military judge that he first observed the other airmen inhale the
nitrous
oxide, and then he did so “[b]y dispensing it into the balloon and
inhaling it
through the balloon.” Appellant also
admitted that inhaling the nitrous oxide made him feel “real happy,
made me
laugh. Afterwards it gave me a real bad
headache.” Appellant said he felt this
way for “[a]bout ten seconds.” Moreover,
Appellant indicated that he knew he was inhaling nitrous oxide and that
is what
he intended to do.
The military judge advised
Appellant that “there
is no statut[ory] basis at least being
charged here by
the government that nitrous oxide is illegal to inhale, just per se.” The military judge added: “What
you’re telling me though is that your
inhaling [nitrous oxide] under the circumstances, the way it happened
in your
case, was wrongful[, and that] under the
circumstances
it was either prejudicial to good order and discipline or was service
discrediting.” The military judge then
asked Appellant to explain specifically why he believed that his
actions
constituted a crime. Appellant offered
two primary reasons. First, he said that
he was guilty of the charged offense because the nitrous oxide
“impaired my -–
it altered my thinking” and that “[f]or ten seconds I was, I guess what
I could
say, high for ten seconds.” Second,
Appellant noted that he “belong[ed] to the
Air Force. [Nitrous oxide] damages
brain cells. It’s bad for you . . . .
[B]eing a part of
the Air Force, I know that I’m supposed to be on my toes, just always
looking
good even in the public eye, not just the military.”
Following conclusion of the inquiry, the
military judge accepted Appellant’s plea.
In the present appeal, Appellant
contends
that his plea was not provident. We
review the military judge’s acceptance of Appellant’s plea for abuse of
discretion.
II. DISCUSSION
On appeal, the defense contends that the
plea inquiry did not establish facts demonstrating that Appellant’s
conduct
caused “direct and palpable prejudice” to good order and discipline. See Manual for Courts-Martial (MCM)
(2000 ed.), pt. IV, ¶ 60.c. (2)(a). The defense also addressed the relationship
between the military preemption doctrine under Article 134 and the
providency
of Appellant’s plea. We shall first
consider the factual basis for the plea and then address the preemption
doctrine under Article 134.
A. FACTUAL BASIS
FOR THE PLEA
Appellant asserts that the plea
inquiry did
not establish a sufficient factual basis to demonstrate his guilt. Appellant notes that Article 134 is not
“such
a catchall as to make every irregular, mischievous, or improper act a
court-martial offense.” See MCM,
pt. IV, ¶ 60.c. (2)(a).
In the present case, the military judge did
not rely simply on affirmative or negative responses to his questions,
but took
care to ensure that the Appellant, through his own words, explained an
understanding of the criminal nature of his conduct.
Beyond acknowledging that he was high for a
brief ten-second period, Appellant noted that the inhalation of nitrous
oxide
was punishable because of the impairment and alteration of his
thinking, and
because it “damages brain cells. It’s
bad for you.”
Appellant argues that a ten-second off-duty
“high” resulting from an over-the-counter substance is not sufficient
to
demonstrate prejudicial conduct, and that the military judge should not
have
relied on Appellant’s statement concerning damage to brain cells
because no
additional facts were introduced to demonstrate that consumption of
nitrous
oxide causes harm to its users. In this
case, the providence of the plea is not dependent solely upon the brief
period
in which the substance impaired Appellant’s mental faculties. Appellant specifically stated that he was
pleading guilty because inhalation of the substance could produce
damage to the
brain. The admission regarding
impairment of mental faculties reflected his understanding that he had
engaged
in conduct that would undermine his capability and readiness to perform
military duties -- a direct and palpable effect on good order and
discipline. If he wished to challenge the
legal basis for
the charge, he could have done so through a motion to dismiss or a plea
of not
guilty at trial.
Appellant has provided no information on
appeal that would undermine the validity of his acknowledgement at
trial as to
the harmful effects of inhalation of nitrous oxide.
On the contrary, we take judicial notice of
the fact that a number of states have recognized the harmful effects by
criminalizing inhalation of nitrous oxide.
See, e.g., Tex. Health & Safety Code Ann. § 485.031 (
B. THE
MILITARY PREEMPTION DOCTRINE UNDER ARTICLE 134
The military preemption doctrine limits the
application of Article 134 with respect to conduct covered by the
specific
punitive articles. MCM, pt. IV, ¶ 60.c.
(5)(a). This
statutory
interpretation doctrine does not necessarily preclude treatment of
offenses
under Article 134 whenever there is a similar offense in the specific
punitive
Articles. As we noted in United
States v. Kick, 7 M.J. 82, 85 (C.M.A. 1979), “simply because the
offense
charged under Article 134, UCMJ, embraces all but one element of an
offense
under another article does not trigger operation of the preemption
doctrine.” For an offense to be excluded
from Article 134 based on preemption “it must be shown that Congress
intended
the other punitive article to cover a class of offenses in a complete
way.”
Appellant cites case law
suggesting that
inhalation of an intoxicating substance cannot be punished under
Article 134
because the field is preempted by Article 112a, which bears the heading
“Wrongful
use, possession, etc., of controlled substances.” Brief of Appellant at 13 (citing
United States v. Plesac, No. ACM 30441, (1994 CCA Lexis
97, at
*4, 1994 WL 606002, at *1 (A.F. Ct. Crim. App. Oct. 25, 1994)
(unpublished opinion)(quoting United
States v. Reichenbach, 29 M.J. 128,
136-37 (C.M.A. 1989)). The legislative history of Article
112a,
however, reflects congressional intent to not cover the class of
drug-related
offenses in a complete way. See
S. Rep. No. 98-53, at 29 (1983)
(Article 112a “is intended to apply solely to offenses within its
express
terms. It does not preempt prosecution
of drug paraphernalia offenses or other drug-related offenses under
Article 92,
133, or 134 of the UCMJ.”) There is
nothing on the face of the statute creating Article 112a or in its
legislative
history suggesting that Congress intended to preclude the armed forces
from
relying on Article 134 to punish wrongful use by military personnel of
substances, not covered by Article 112a, capable of producing a
mind-altered
state. See Military
Justice Act of 1983, Pub. L. No. 98-209, § 8(a),
97 Stat.
1393, 1403 (1983). To the
extent that dicta in Reichenbach,
suggests otherwise with respect to prejudicial or service-discrediting
conduct,
see 29 M.J. at 136-37, we decline to adhere to that view.
III. CONCLUSION
The decision of the United States
Air Force
Court of Criminal Appeals is affirmed.