United States v. Kendall
201600326
N.M.C.C.A.Mar 30, 2017Background
- Appellant, GM2 Dillon L. Kendall, pled guilty at a general court-martial to conspiracy and multiple steroid-related offenses under Articles 81 and 112a, UCMJ.
- Specification 3 alleged Kendall conspired with D.H. in Dubai "on divers occasions" between July 17 and December 7, 2014, to wrongfully export anabolic steroids and paid D.H. $1,000.
- During providence inquiry, Kendall admitted a single agreement: D.H. would mail steroids from the U.S. to Kendall while deployed; D.H. mailed steroids in September 2014, and Kendall paid $100, not $1,000.
- Military judge accepted guilty pleas and sentenced Kendall to 6 months confinement, reduction to E‑1, and a bad-conduct discharge; CA approved and, per a PTA, suspended confinement beyond 90 days.
- The appellate court found a substantial basis to question the plea wording "on divers occasions" because the record showed only a single conspiracy, and identified a material but unreflected modification in the CA’s promulgating order changing the payment amount to $100.
- Court modified Specification 3 by deleting "on divers occasions," ordered correction of the promulgating order to reflect $100, and affirmed the remaining findings and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea to conspiracy "on divers occasions" was supported by the record | Appellant admitted repeated agreements or conduct; plea should stand | Government argued factual record only showed a single agreement | Court: Abuse of discretion to accept "on divers occasions"; delete phrase and sustain as single-act conspiracy |
| Whether CA’s promulgating order correctly reflected modification of Specification 3 (payment amount) | Appellant: record shows material change to $100 and must be reflected in official records | Government: modification occurred at trial but omission in promulgating order is an administrative error | Court: Promulgating order must be corrected to show $100; ordered supplemental court-martial order reflecting change |
Key Cases Cited
- United States v. Inabinette, 66 M.J. 320 (C.A.A.F. 2008) (standard for reviewing guilty plea acceptance and substantial-basis test)
- United States v. Davenport, 9 M.J. 364 (C.M.A. 1980) (requirement that military judge elicit factual basis for guilty plea)
- United States v. Winckelmann, 73 M.J. 11 (C.A.A.F. 2013) (principles for sentence reassessment)
- United States v. Cook, 48 M.J. 434 (C.A.A.F. 1998) (considerations in reassessing sentences)
- United States v. Sales, 22 M.J. 305 (C.M.A. 1986) (reassessed sentence must be appropriate for the offense)
- United States v. Crumpley, 49 M.J. 538 (N-M. Ct. Crim. App. 1998) (entitlement to accurate official records reflecting trial results)
- United States v. Rodriguez, 66 M.J. 201 (C.A.A.F. 2008) (modifying "on divers occasions" verdicts to single acts can be sustained if evidence supports single act)